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NOT TO BE PUBLISHED OPINION
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RENDERED: JUNE 16, 2016
NOT TO BE PUBLISHED
$uprrmr Court of ITAtuTtalg
u Li L,
2015-SC-000476-WC
DANA CORPORATION APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001902-WC
WORKERS' COMPENSATION NO. 03-95433
MARTIN ROBERTS;
HONORABLE J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Dana Corporation, appeals a Court of Appeals decision that
affirmed an award of permanent total disability ("PTD") benefits to Appellee,
Martin Roberts. Dana argues that this Court should reconsider the holding in
Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008), and find that
Roberts's motion to reopen was untimely filed. For the below stated reasons,
we affirm the Court of Appeals.
Roberts suffered a work-related injury on September 24, 2001. The
occurrence of the injury was described as "lower back pain/climbing
on/ servicing equipment, lower back pain from servicing a machine." Roberts
and Dana entered into a settlement agreement based on a 23% impairment
rating which was approved by an Administrative Law Judge ("ALJ") on
February 5, 2004. The settlement did not waive his right to future medical
benefits.
On February 11, 2011, Roberts filed a motion to reopen, KRS 342.125(3),
seeking temporary total disability ("TTD") benefits and payment for medical
treatment. The motion stated that on April 10, 2010, Roberts began to
experience intermittent back pain which subsequently increased. Because of
the symptoms, Dr. David Rouben performed an MRI on Roberts which
indicated a worsening of Roberts's condition. Dr. Rouben restricted Roberts
from walking and recommended surgery. Dana objected to the motion.
However, the Chief Administrative Law Judge ("CALJ") concluded that Roberts
set forth a prima facie case to reopen and sustained the case for another ALJ to
review.
The motion to reopen was assigned to ALJ Lawrence Smith. After a
review of the evidence, AU Smith found that the procedure recommended by
Dr. Rouben was reasonable, necessary, and work-related. He issued an
opinion, order, and award on September 19, 2011, which found Dana
responsible to pay for the medical treatment. ALJ Smith also ordered Dana to
pay Roberts TTD from the date of surgery to the time he reached maximum
medical improvement ("MMI"). Roberts underwent the medical procedure in
November 2011.
On April 10, 2013, Dana filed a motion and affidavit to terminate
Roberts's TTD benefits. Dana stated that Dr. Ellen Ballard conducted an
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independent medical examination ("IME") on Roberts and concluded he
reached MMI on November 2, 2012. Roberts filed a response to the motion
arguing that Dr. Rouben was still treating him. Dr. Rouben believed that
Roberts had not reached MMI.
On May 23, 2013, Roberts filed a "Motion to Reopen for Increased
Impairment, Changed and Worsening of Condition, and Total Occupational
Disability." Roberts alleged that his condition obviously worsened because he
had to undergo the procedure from Dr. Rouben. Roberts noted in 2003, Dr.
Rouben assigned him a 23% impairment rating but now pursuant to the AMA
Guides he falls within DRE Category V, which requires a minimum 25% whole
person impairment. Roberts also contended he was unable to find any type of
work. Dana responded by filing a motion arguing that Roberts's motion to
reopen should be barred by the statute of limitations. KRS 342.125(3). The
matter was reassigned to ALJ Alison Jones.
ALJ Jones entered an order sustaining Dana's motion to terminate TTD
benefits effective June 13, 2013. But, she also overruled Dana's motion to
dismiss based on Hall, 276 S.W.3d at 775. Hall stated that for the purposes of
KRS 342.125(3), any order which grants or denies benefits tolls the statute of
limitations. She found that ALJ Smith's order reopening the claim and
awarding TTD and medical benefits restarted the four year period in which one
may move to reopen the claim. Thus, since Roberts's motion to reopen was
filed May 23, 2013, and that was less than four years after ALJ Smith's motion
granting him TTD benefits, it was timely. A petition for reconsideration filed by
Dana was denied.
The Board affirmed in a two to one opinion. Chairman Alvey dissented,
arguing that the dissent in Hall, which wrote that a reopening may only be filed
four years after the original opinion or award, was correct. He wrote that while
KRS 342.125(3) allows for reopening for additional TTD benefits, it does not
revive the four year statute of limitations every time an order granting or
denying benefits is entered. He noted that a prime objective of the General
Assembly in passing KRS 342.125(3) was to restrict and not expand the
granting of workers' compensation awards. The Court of Appeals affirmed, and
this appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
Further, the function of the Court of Appeals is to "correct the Board only
where the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole
discretion to judge the credibility of testimony and weight of evidence.
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Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). KRS
342.125(3) states:
[e]xcept for reopening solely for determination of the
compensability of medical expenses, fraud, or conforming the
award as set forth in KRS 342.730(1)(c)2., or for reducing a
permanent total disability award when an employee returns to
work, or seeking temporary total disability benefits during the
period of an award, no claim shall be reopened more than four (4)
years following the date of the original award or order granting or
denying benefits, and no party may file a motion to reopen within
one (1) year of any previous motion to reopen by the same party.
Dana requests that this Court overrule the decision in Hall, 276 S.W.3d
775, or in the alternative find that this matter is factually distinguishable. Hall
held that "original award or order" as used in KRS 342.125(3) indicates the
statute of limitation runs from either the original award or any order thereafter
which grants benefits. Hall reasoned:
That the reference to the 'original award or order granting or
denying benefits' was intended to encompass orders granting
benefits other than the 'original award,' is established by several
additional uses in the same statute. For example, KRS 342.125(1)
allows an ALJ to 'reopen and review any award or order' on stated
grounds. (emphasis added). It is uncontestable that the reference
to 'order' in KRS 342.125(1) encompasses an order different than
the original award, otherwise there could be no reopening of
awards changed subsequent to the original award, increasing or
decreasing benefits, as all must concede is the practice. For
example, KRS 342.125(1)(d) specifically allows a 'reopening and
review' upon a Ic]hange of disability as shown by objective medical
evidence of worsening or improvement of impairment due to a
condition caused by the injury since the date of the award or
order.' (emphasis added). If the word 'order' was interpreted to
refer only to the original award, a 'review and reopening' of a
subsequently increased or decreased award or order could simply
not occur. And, KRS 342.125(4) acknowledges that the
Irleopening shall not affect the previous order or award as to any
sums already paid thereunder.' (emphasis added). Meaning
simply, that the new award or order will operate prospective only
for the remaining term of the award.
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Given our further analysis, the conclusion that an 'order
granting or denying benefits' was tended to encompass an order
granting benefits different than an original award or settlement is
compelling. Thus, the reference in KRS 342.125(3) to the original
award or order granting or denying benefits,' must necessarily refer
not only to the original award, but to any subsequent order
granting or denying benefits.
Hall, 276 S.W.3d at 784-85.
We decline to reverse Hall at this time. Addtionally, we do not find that
the facts in this matter prevent the application of Hall. Admittedly, the motion
in Hall, which tolled the statute of limitations, was filed closer to the original
order than the one in this matter. However, the fact remains that ALJ Smith's
order, entered on September 19, 2011, awarded Roberts TTD benefits and is an
order which restarted the four-year statute of limitations in KRS 342.125(3).
Thus, Roberts's motion to reopen filed on May 23, 2013, was timely filed and
shall not be dismissed.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
All sitting. Cunningham, Keller, Noble, Venters, and Wright, JJ., concur.
C.J. Minton, dissents as follows: I must respectfully dissent as I did in Hall v.
Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008), because I believe that
KRS 342.125(3) does not allow for the reopening of a claim filed more than four
years after the initial award or order granting or denying benefits. Hughes, J.,
joins.
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COUNSEL FOR APPELLANT,
DANA CORPORATION:
Guillermo Alfredo Carlos
James Burke Cooper
COUNSEL FOR APPELLEE,
MARTIN ROBERTS:
Stephanie Nicole Wolfinbarger
Jessica Jarboe Logsdon
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