RENDERED : MAY 21, 2009
TO BE PUBLISHED
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2008-SC-000646-WC
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CRAWFORD 8s COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2007-CA-002117-WC
WORKERS' COMPENSATION BOARD NO. 87-39549
JOSEPH WRIGHT;
DR. SCOTT WATKINS ;
DR. DAVID WATKINS ;
HONORABLE MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD APPELLEES
2008-SC-000746-WC
JOSEPH WRIGHT CROSS-APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO . 2007-CA-002117-WC
WORKERS' COMPENSATION BOARD NO . 87-39549
CRAWFORD 8v COMPANY ;
DR. SCOTT WATKINS;
DR. DAVID WATKINS ;
HONORABLE MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD CROSS-APPELLEES
OPINION OF THE COURT
AFFIRMING
This appeal concerns a post-award medical dispute filed by Crawford &
Company (Crawford), the defendant-employer's third-party insurance adjuster.
An Administrative Law Judge (ALJ) vacated an order by the Chief ALJ (CALJ)
that reopened the underlying claim for additional proof to be taken and the
merits of the dispute adjudicated . Considering only the evidence that Crawford
submitted with the motion and Form 112, the ALJ determined that Crawford
had no responsibility for future medical treatment of the claimant's knee
problems and denied his petition for reconsideration.
The Workers' Compensation Board reversed, reinstated the CALJ's order,
and remanded the matter for the proof to be completed and the merits
considered. The Court of Appeals affirmed. Appealing, Crawford asserts that
the Board misinterpreted 803 KAR 25:010 and 803 KAR 25 :012 . In a cross-
appeal, the claimant requests sanctions against Crawford under CR 73 .02(4)
with respect to its judicial appeals .
We affirm. Although 803 KAR 25:012, § 1(6) (c) permits a motion to
reopen to contest medical expenses to be decided summarily on the pleadings,
its purpose is not to enable the second step of the reopening process to be
short-circuited if the worker fails to respond within 20 days . It simply permits
a motion that is not supported with an adequate prima facie showing to be
denied summarily but a motion that is supported with the required showing to
be assigned for further proof time and an adjudication of the merits . Sanctions
are unwarranted because no published decision addresses the proper
interpretation of 803 KAR 25 :012, § 1(6) (c) and the interaction of 803 KAR
25 :012, § 1(6) and 803 KAR 25 :010, § 4(6) in a medical reopening.
The claimant injured his knees while working on December 3, 1987.
With the assistance of counsel, he settled the claim against his employer
(Webster County Coal Corporation) and the Special Fund for a lump sum that
represented a 12 .5% occupational disability but did not include a buyout of
future medical benefits. The claimant's treating physicians, Dr. Scott Watkins
and Dr. David Watkins, recommended an orthopedic evaluation of his knee
pain in November 2006. Crawford submitted the matter to Dr. Fadel for
utilization review. Convinced that the claimant's arthritic knee condition was
related to factors other than the remote injury, Dr. Fadel recommended
denying both the current treatment by Drs. Watkins and the referral .
On January 4, 2007, Crawford filed a Form 112 medical fee dispute, a
motion to join Drs. Scott and David Watkins, and a motion to reopen the
claimant's award. 1 Consistent with 803 KAR 25 :010, § 1(1), Crawford tendered
proposed orders. The Form 112 and motion to reopen contested both the
"current treatment" and the request for an orthopedic referral, relying on Dr.
1 803 KAR 25:012, § 1(6) requires both a motion to reopen and a Form 112 to be filed
in a claim that is finally resolved .
Fadel's report as evidence that the treatment and proposed referral were
unreasonable, unnecessary, and unrelated to the 1987 injury. 2
803 KAR 25 :012, § 1(6)(b) requires a Form 112 to be served on the
worker, "even if represented by counsel ." Crawford's Form 112 lists the
claimant as the respondent, indicates that he was served at his 1987 address,
but does not indicate that his attorney of record was served . 803 KAR 25:010,
§ 4(6)(a)7 requires a motion to reopen to be served on counsel for the parties as
well as on the parties, themselves . Crawford's motion to reopen indicates that
it was served on the claimant at his 1987 address but does not indicate that it
was served on his attorney of record . Neither the claimant nor his physicians
responded to the filing.
The matter came before ALJ Chris Davis on February l, 2007, on the
regular Frankfort motion docket . 3 ALJ Davis signed Crawford's proposed
order, which sustained the motion to reopen and gave Drs. Scott and David
Watkins 20 days in which to explain "why the respondent's current bilateral
knee problems are causally related to the subject December 3, 1987 work
incident." The order stated that Crawford would be relieved of responsibility for
further treatment if they failed to respond within the 20-day period . Like the
Form 112 and the motion to reopen, the order indicates that it was served on
2 Although the Form 112 indicated that a disputed statement for services was first
received on December 12, 2006, and was attached, the record contains only an
office note from November 10, 2006, which listed the claimant's current medications
and noted the referral to Dr. Johnson . It appears, therefore, that Crawford was
actually contesting future treatment for the knee condition .
3 See 803 KAR 25:012, § 1(6) (c).
the claimant at his 1987 address but does not indicate that it was served on
his attorney of record . ALJ Davis failed to sign the proposed order joining the
physicians as parties, and the order he entered sustaining the motion to
reopen did not join them.
The physicians did not respond to the February 1, 2007 order within 20
days. The Form 112 and motion to reopen came before the Chief ALJ, Sheila
Lowther, on the regularly-scheduled Frankfort motion docket on March 9,
2007. CALJ Lowther joined Drs. Scott and David Watkins as parties and
granted the motion to reopen to the extent of assigning the matter to an ALJ for
additional proof and a decision on the merits . The order conflicted with ALJ
Davis's order but neither overruled nor vacated it explicitly.
On March 20, 2007, the Office of Workers' Claims issued a scheduling
order4 and assigned the reopening to ALJ Marcel Smith. Crawford filed a
petition for reconsideration and motion to vacate the CALJ's order on March
21, 2007, but also began to take proof in the reopening. On April 9, 2007, the
same attorney who represented the claimant in the initial claim entered an
appearance in the reopening and submitted evidence on his behalf.
Also on April 9, 2007, ALJ Smith granted Crawford's petition for
reconsideration, vacated the CALJ's order, and reinstated ALJ Davis's order.
Noting that neither physician responded within the 20-day period required by
4 The proofing schedule gave all parties 60 days, followed by 30 days for the plaintiff
only, and 15 days thereafter for rebuttal by the defendants. A benefit review
conference was scheduled for July 10, 2007.
5
ALJ Davis's order, ALJ Smith found that the claimant's current knee problems
were unrelated to the 1987 incident and relieved Crawford of the responsibility
for future medical treatment. The claimant filed a petition for reconsideration
and an amended petition, pointing out that his proof time had not expired
according to the scheduling order and that ALJ Davis's order required nothing
of him. He also continued to submit proof. Crawford asserted in response that
ALJ Smith's order contained no patent error and that, having failed to respond
to ALJ Davis's "show cause" order, the claimant now made a belated attempt to
file proof in response to the order. ALJ Smith denied the petitions on May 7,
2007, and the claimant appealed.
The Board determined that ALJ Smith erred by vacating the CALJ's
order, reversed the decision, and remanded the matter for a consideration of
the merits. Crawford appealed, but the Court of Appeals affirmed. Appealing,
Crawford continues to assert that the Board misinterpreted 803 KAR 25:010
and 803 KAR 25 :012 and that it erred by reversing ALJ Smith's order of April
9, 2007 . We disagree.
The courts afford an administrative agency's construction of its own
regulation great weight when determining the regulation's meaning . 5 We find
the Board's interpretation of the disputed regulations to be reasonable .
Moreover, we agree with its ultimate conclusion .
5 Blanton v. Lowe , 415 S.W.2d 376 (Ky. 1967) .
6
The party responsible for paying post-award medical expenses has the
burden of contesting a particular expense by filing a timely motion to reopen
and proving it to be non-compensable . 6 Thus, 803 KAR 25 :012, § 6 requires
both a motion to reopen and Form 112 to be filed in a post-award medical
dispute . Reopening a final workers' compensation award is a two-step
process .? The first step involves the filing of a motion to reopen together with a
prima facie showing of a reasonable possibility that the movant will be able to
prevail on the merits . Only if the movant makes the required showing will the
adversary be put to the expense of re-litigating or will further proof be
authorized.
Drs. Scott and David Watkins, who provided medical treatment for the
effects of the claimant's injury, recommended an orthopedic consultation . As
the party responsible for paying medical expenses regarding the injury,
Crawford had the burden to contest them in a timely manner and to prove in
the subsequent reopening proceeding that they were unreasonable and
unnecessary for the injury's effects. Crawford filed a motion to reopen together
with prima facie evidence although it failed to comply with 803 KAR 25:010, §
4(6)(a)7 and perhaps also with 803 KAR 25:012, § 1(6)(b) because it failed to
serve the claimant's counsel of record .
6 See Mitee Enterprises v. Yates , 865 S.W .2d 654 (Ky. 1993) (the burden of contesting a
post-award medical expense in a timely manner and proving that it is non-
compensable is on the employer) .
7 AAA Mine Service v. Wooten, 959 S .W.2d 440 (Ky. 1998).
7
Despite Crawford's assertion to the contrary, 803 KAR 25 :010, § 4(6)(c)2
does not require a response to a motion to reopen . It provides that "[a]ny
response shall be filed within twenty (20) days of filing the motion ." 8 Medical
expenses that a worker submits are presumed to be compensable unless the
employer challenges them in a timely manner and proves ultimately that they
are not. 9 Although 803 KAR 25:012, § 1(6)(c) states that a motion to reopen to
contest medical expenses may be decided summarily on the pleadings, its
purpose is not to permit the second step of the reopening process to be short-
circuited if the worker fails to respond to the motion within 20 days- 10 803
KAR 25:012, § 1(6)(c) simply permits a motion that is not supported with an
adequate prima facie showing to be denied summarily but a motion that is
supported with the required showing to be assigned to an ALJ for further proof
time and an adjudication of the merits .
We agree with the Board that the CALJ's order of March 9, 2007,
superseded ALJ Davis's order, rendering it null and void. As the Board
explained, an ALJ who presides over the Frankfort motion docket on the
CALJ's behalf does not retain jurisdiction over a medical dispute. Jurisdiction
over medical disputes rests with the CALJ until they are assigned to another
8 803 KAR 25:012, § (1)(6) states no period within which to respond to a post-award
Form 112, perhaps because it requires the form to be filed with a motion to reopen .
The Form 112, itself, states that the respondent and other parties "have 20 days in
which to file a response pursuant to 803 KAR 25:012 ."
9 See Mitee Enterprises v. Yates , supra.
to A failure to dispute that one's opponent has shown a reasonable possibility of being
able to prevail after proof is taken and the merits considered does not amount to a
concession that the opponent is entitled to prevail .
8
ALJ for an adjudication of the merits . Thus, the CALJ continued to have
jurisdiction over the present dispute despite ALJ Davis's order. Not only did
the order that ALJ Davis entered fail to dispose of Crawford's motion to reopen,
by denying it summarily or ordering it to be assigned for further proceedings,
the order shifted the ultimate burden away from Crawford and did so
erroneously. The CALJ's March 9, 2007, order disposed of the motion, curing
the defects in ALJ Davis's order. ALJ Smith erred by granting Crawford's
petition for reconsideration, vacating the CALJ's order, and resolving the merits
in Crawford's favor, thereby eliminating the second step in the reopening.
The claimant's cross-appeal requests sanctions as permitted by CR
73 .02(4) ." He asserts that Crawford's interpretation of the controlling
regulations is so frivolous and lacking in merit that neither its appeal to the
Court of Appeals nor the present appeal should have been taken . We disagree .
No published decision addresses the proper interpretation of 803 KAR 25:012,
§ 1(6) (c) or the interaction of 803 KAR 25 :012, § 1(6) and 803 KAR 25:010, §
4(6) in a medical reopening. Although we have affirmed the decision of the
Court of Appeals, we are not convinced that Crawford's arguments are frivolous
and so lacking in merit that an appeal should not have been taken.
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
11 See Peabody Coal Company v. Goforth , 857 S.W.2d 167, 170 (Ky. 1993) .
9
COUNSEL FOR APPELLANT/ CROSS-APPELLEE,
CRAWFORD 8s COMPANY:
Joel Walter Aubrey
Mary Ellen Schaffner
Pohl, Kiser 8s Aubrey, P.S .C .
303 North Hurstbourne Parkway
Suite 110
Louisville, KY 40222-5143
COUNSEL FOR APPELLEE/ CROSS-APPELLANT,
JOSEPH WRIGHT :
William B . Norment, Jr .
Dorsey, King, Gray, Norment 8v Hopgood
318 Second Street
Henderson, KY 42420
COUNSEL FOR APPELLEES/CROSS-APPELLEES :
Dr . Scott Watkins, pro se
Dr. David Watkins, pro se
1413 N . Elm Street
Suite 106
Henderson, KY 42420