CORRECTED: AUGUST 29, 2006
MODIFIED : AUGUST 24, 2006
RENDERED : MAY 18, 2006
TO BE PUBLISHED
(910urf laf
2005-SC-0719-WC
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DONALD MORRISON APPELLANT
APPEAL FROM COURT OF APPEALS
V. 05-CA-0324-WC
WORKERS' COMPENSATION NO. 02-70313
THE HOME DEPOT; SEDGWICK CLAIMS
MANAGEMENT SERVICES; WORKERS'
COMPENSATION BOARD ; AND HON. JOHN B.
COLEMAN, ADMINISTRATIVE LAW JUDGE APPELLEES
OPINION OF THE COURT
REVERSING AND REMANDING
This appeal concerns the report of a medical evaluation that was ordered under
KRS 342 .315 and performed by a physician who was not employed by the University of
Kentucky or University of Louisville medical school. An Administrative Law Judge (ALJ)
overruled the claimant's motion to strike, rejecting an assertion that the physician was
not a university evaluator within the meaning of KRS 342.315 . Affirming, the Workers'
Compensation Board and Court of Appeals reasoned that the statute required the
commissioner (now executive director) to contract with the universities "to evaluate
workers," that it required "physicians and institutions performing evaluations" to submit
reports, but that it did not require the universities to select physicians who were
university employees . The claimant asserts that they misconstrued KRS 342.315. We
agree; therefore, we reverse and remand this claim for further proceedings .
On June 24, 2002, the claimant fell backward from the bed of a truck while
working for Home Depot in Florence, Kentucky. He completed his shift and then sought
chiropractic treatment from Dr. Skinner for neck, shoulder, and back injuries. Dr.
Skinner provided most of his treatment .
Based on subsequent medical evidence, disputes arose over whether or when
the claimant reached maximum medical improvement (MMI) regarding the shoulder
condition and over the impairment due to all conditions. Although acknowledging the
employer's right to require continued medical examinations, the claimant objected to
having to travel to examinations by physicians in the vicinity of Lexington rather than the
greater Cincinnati area where he lived. As a consequence, the ALJ ordered the
claimant to undergo an evaluation "by a physician at the assigned university medical
school" and to address the disputed issues . A March 1, 2004, letter from the Office of
Workers' Claims advised the claimant that the evaluation was scheduled with Dr .
Martyn Goldman for March 29, 2004, at 12:15 p.m., at the Medical Assessment Clinic
on Dutchman's Parkway in Louisville, and indicated that a map of the site within the
university facility was enclosed . The claimant reported for the evaluation, and Dr.
Goldman submitted both a report and a supplemental report containing his clinical
findings and opinions . The employer also filed Dr. Goldman's initial report into evidence
but does not assert presently that it was admissible except under KRS 342 .315.
The May 27, 2004, hearing order indicates that a ruling on a motion to strike the
report was reserved . On June 1, 2004, the claimant filed a motion to strike Dr.
Goldman's report, asserting that he was not a university evaluator as contemplated by
KRS 342 .315 and that his opinions were neither fair nor unbiased . Although the motion
was filed beyond the 10 days the regulations prescribe, the employer failed to assert
that the motion was untimely or that the claimant waived any right to object to the
report. Therefore, arguments to that effect were not preserved for appeal and will not
be considered . Relying on the plain language of KRS 342 .315, the ALJ overruled the
motion to strike Dr. Goldman's report. After his petition for reconsideration was
overruled, the claimant appealed .
Dr. Goldman is a board-certified orthopedic surgeon whose qualifications were
on file with the Department of Workers' Claims (now Office of Workers' Claims) when
the evaluation was performed. The claimant does not challenge his expertise . He
argues that Dr. Goldman was not a university evaluator within the meaning of KRS
342 .315 because he was not employed by one of the university medical schools ;
therefore, his report was inadmissible . The claimant maintains that he objected as
soon as he learned that Dr. Goldman was not a university employee whose clinical
findings and opinions could be presumed to be unbiased . See Magic Coal Co. v. Fox,
19 S.W .3d 88 (Ky . 2000). He explains that Dr. Goldman is not a teacher of medicine .
He limits his practice to performing medical evaluations and works for a corporation
whose business is to provide expert medical witnesses, largely for employers and
insurance companies .
Arguing that KRS 342 .315 contemplated evaluators who were university
employees, the claimant relies on various documents, including the ALJ's February 17,
2004, order to undergo the evaluation; a 1998 Board opinion ; materials from the 1998
University of Kentucky Workers' Compensation Institute ; a February 16, 2000,
statement by former governor Patton regarding university evaluators; the decision in
Magic Coal Co . v. Fox, supra ; and an article regarding expert witnesses in workers'
-3-
compensation claims (90 Ky. L.J. 891 (200112002)) . Although he acknowledges that
the statute gives the Department of Workers' Claims (now Office of Workers' Claims)
authority to contract with the universities to evaluate injured workers, he asserts that it
does not give the Department authority to permit a university to select a private
physician to perform the evaluation. Flying J Travel Plaza v. Com ., Transp. Cab., Dept.
of Highways, 928 S .W.2d 344 (Ky. 1996) ; Public Service Commission of Kentucky v.
Attorney General of the Commonwealth , 860 S .W .2d 296 (Ky. App. 1993).
The ALJ decided this claim on July 7, 2004, at which time KRS 342 .315
provided, in pertinent part, as follows :
(1) The commissioner shall contract with the University of Kentucky
and the University of Louisville medical schools to evaluate workers
who have had injuries or become affected by occupational
diseases covered by this chapter. Referral for evaluation may be
made to one (1) of the medical schools whenever a medical
question is at issue.
(2) The physicians and institutions performing evaluations pursuant
to this section shall render reports encompassing their findings and
opinions in the form prescribed by the commissioner . Except as
otherwise provided in KRS 342.316, the clinical findings and
opinions of the designated evaluator shall be afforded presumptive
weight by administrative law judges and the burden to overcome
such findings and opinions shall fall on the opponent of that
evidence . When administrative law judges reject the clinical
findings and opinions of the designated evaluator, they shall
specifically state in the order the reasons for rejecting that
evidence .
(3) The executive director or an administrative law judge may, upon
the application of any party or upon his own motion, direct
appointment by the commissioner, pursuant to subsection (1) of
this section, of a medical evaluator to make any necessary medical
examination of the employee . Such medical evaluator shall file with
the commissioner within fifteen (15) days after such examination a
written report. The medical evaluator appointed may charge a
reasonable fee not exceeding fees established by the
commissioner for those services .
Magic Coal Co. v. Fox, supra, involved claims by three coal workers for retraining
incentive benefits under KRS 342 .732(1)(a). In all three claims, the last exposure to
coal dust occurred before December 12, 1996. At issue was whether KRS 342.315
governed claims that arose before it was enacted and, if so, the meaning and legal
effect of the term "presumptive weight."
The court determined that the university evaluation provision enacted on
December 12, 1996, was procedural and governed all claims pending before an AU on
or after its effective date . Addressing the term "presumptive weight," the court
determined that KRS 342.315(2) created a rebuttable presumption governed by KRE
301 . Id . at 95-98 . The proven fact supporting the presumption was that evaluating
physicians would be provided under contracts between the Department of Workers'
Claims (now Office of Workers' Claims) and the university medical schools . Noting that.
vast differences frequently existed in the opinions of the parties' medical experts, the
court determined that clinical findings and opinions from an unbiased medical expert
would reasonably be expected to assist the fact-finder and that KRS 342 .315 assured
sufficient numbers of such experts . Moreover, it was reasonable to infer that physicians
affiliated with a medical school were experts in their fields and less likely to have a
preconceived bias favoring the plaintiff or the defense than experts the parties hired.
Therefore, it was neither unreasonable nor irrational to presume that their clinical
findings and opinions would accurately reflect the claimant's medical condition absent
evidence to the contrary. The court determined that KRS 342 .315(2) neither shifted the
risk of non-persuasion to the defendant nor raised the bar regarding the claimant's
burden of persuasion . It did not restrict the ALJ's authority to weigh conflicting evidence
but simply required the ALJ to state a specific basis for disregarding a university
evaluator's testimony. In other words, a university evaluator's testimony constituted
substantial evidence*that the ALJ could not disregard absent evidence to the contrary .
The purpose of KRS 342 .315 is to obtain clinical findings and opinions from
unbiased medical experts and to assure sufficient numbers of such experts. Id. KRS
342 .315 does not authorize the university medical schools to subcontract with private
physicians to perform evaluations . Nor does it imply a legislative intent to grant such
authority. The rationale for our conclusions in Magic Coal Co . v. Fox, supra, was that
physicians who performed evaluations under KRS 342.315 would be "affiliated with,"
i .e . , employed by or on the staff of, one of the designated medical schools . Id . at 95-
96. A physician who is not affiliated with a university medical school is not a proper
evaluator under KRS 342 .315. Therefore, reports from such a physician are not
admissible for the purposes of KRS 342.315 .
The decision of the Court of Appeals is reversed, and this claim is remanded to
the ALJ for further proceedings .
Lambert, C.J ., and Cooper, Graves, Scott, and Wintersheimer, JJ ., concur.
Roach, J ., dissents by separate opinion in which Johnstone, J ., joins .
COUNSEL FOR APPELLANT :
Otto Daniel Wolff
McMurtry & Wolff
" 405 Garrard Street
Covington, Kentucky 41011
COUNSEL FOR APPELLEE,
THE HOME DEPOT
Kamp T . Purdy
Ferreri & Fogle
300 East Main Street, Suite 400
Lexington, Kentucky 40507
RENDERED : MAY 18, 2006
TO BE PUBLISHED'
2005-SC-0719-WC
DONALD MORRISON
APPEAL FROM COURT OF APPEALS
2005-CA-0324-WC
WORKERS' COMPENSATION NO. 02-70313
THE HOME DEPOT; SEDGWICK CLAIMS
MANAGEMENT SERVICES; WORKERS'
COMPENSATION BOARD ; AND HON. JOHN B.
COLEMAN, ADMINISTRATIVE LAW JUDGE
DISSENTING OPINION BY JUSTICE ROACH
The Administrative Law Judge, the Workers' Compensation Board, and the Court
of Appeals correctly construed KRS 342.315 as imposing no requirement that medical
evaluations described in the statute be performed by university employees . Therefore, I
would affirm .
I would first note that the physician in question, Dr. Martyn Goldman, was not just
a random person chosen to evaluate Appellant . As the Administrative Law Judge noted
in his Opinion and Award :
[1] ordered a university evaluation pursuant to [KRS 342.315] as there was
a medical question in regards to the plaintiff's shoulder condition . The
Office of Workers' Claim made the referral to the University of Louisville
who scheduled the evaluation with Dr. Goldman . There is nothing in the
statute which prevents the university medical schools from contracting
with duly qualified physicians . . . .
Though the ALJ's characterization of the relationship between Dr. Goldman and the
University of Louisville is not explicit, it clearly states that the university had chosen Dr.
Goldman as its agent in performing the evaluation and strongly implies that Dr.
Goldman did so as a subcontractor . The ALJ also arrived at what I think is the correct
construction of KRS 342.315.
KRS 342 .315 provides, in relevant part, as follows:
(1) The commissioner shall contract with the University of Kentucky and
the University of Louisville medical schools to evaluate workers who have
had injuries or become affected by occupational diseases covered by this
chapter. Referral for evaluation may be made to one (1) of the medical
schools whenever a medical question is at issue.
(2) The physicians and institutions performing evaluations pursuant to this
section shall render reports encompassing their findings and opinions in
the form prescribed by the commissioner . Except as otherwise provided in
KRS 342 .316, the clinical findings and opinions of the designated
evaluator shall be afforded presumptive weight by administrative law
judges and the burden to overcome such findings and opinions shall fall
on the opponent of that evidence . When administrative law judges reject
the clinical findings and opinions of the designated evaluator, they shall
specifically state in the order the reasons for rejecting that evidence .
In construing statutes, we have consistently employed the following rules of
statutory construction :
The best way in most cases to ascertain such intent or to determine the
meaning of a statute is to look to the language used, but no intention
must be read into the statute not justified by the language. The primary
rule is to ascertain the intention from the words employed in enacting the
statute and not to guess what the Legislature may have intended but did
not express. Resort must be had first to the words, which are decisive if
they are clear, The words of the statute are to be given their usual,
ordinary, and everyday meaning .
Gateway Const. Co . v. Wallbaum , 356 S.W .2d 247, 249 (Ky. 1962)(citations omitted) .
In light of these principles, the statute is clear-it does not require the physicians
to be university employees or, in the words of the majority opinion, "affiliated with" the
medical schools . These requirements simply are not present in the statute. Rather, the
statute simply requires the commissioner to contract with the university medical schools
to evaluate workers and that the "physicians and institutions performing evaluations"
render reports on a prescribed form . KRS 342.315(2) contains no requirement that the
physicians who perform the evaluations be university employees or otherwise "affiliated
with" the university . Absent such a requirement, nothing in the statute prevents the
universities from selecting physicians who are not university employees to perform the
evaluations .
Moreover, the statute's use of the language "[t]he physicians and institutions"
clearly contemplates two separate sets of entities who can perform the evaluations . But
by requiring that the universities themselves, or at least their direct employees, perform
the evaluations, the majority opinion renders the words "physicians and" superfluous .
However, "[i]t is a cardinal principle of statutory construction that a statute ought, upon
the whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant." Brooks v. Lexington-Fayette Urban County
Housing Authority , 132 S.W.3d 790, 811 n .4 (Ky. 2004) (quoting TRW Inca v Andrews,
534 U .S . 19, 31, 122 S.Ct. 441, 449,151 L.Ed.2d 339 (2001)) (internal quotation marks
omitted) .
The General Assembly could easily have specified that evaluators must be
university employees or "affiliated with" the institutions, but it did not. Moreover, nothing
in the language of the statute implies such intent. It is not this Court's role to speculate
what the legislature may have intended but failed to express . Commonwealth v. Allen,
980 S.W.2d 278, 280 (Ky. 1998) . Yet, that is precisely what the majority has done .
respectfully dissent.
Johnstone, J ., joins this dissenting opinion .
CORRECTED : AUGUST 29, 2006
ularmt Iffourf of ~ruturkV
2005-SC-0719-WC
DONALD MORRISON APPELLANT
APPEAL FROM COURT OF APPEALS
V. 2005-CA-0324-WC
WORKERS' COMPENSATION NO . 02-70313
THE HOME DEPOT; SEDGWICK
CLAIMS MANAGEMENT SERVICES;
WORKERS' COMPENSATION BOARD ;
AND HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE APPELLEES
ORDER DENYING REHEARING AND MODIFYING OPINION
The petition for rehearing filed by appellant is DENIED . The Opinion is modified
on page 6 to reflect the following change beginning with "Therefore, a report from such
a physician is not admissible for the purposes of KRS 342.315 ." This change does not
affect the holding of the Court.
All concur except Roach, J., who would grant rehearing.
Entered : August 24, 2006
~uyrmr dourf . of Arufurkg
2005-SC-0719-WC
DONALD MORRISON APPELLANT
APPEAL FROM COURT OF APPEALS
V. 05-CA-0324-WC
WORKERS' COMPENSATION NO. 02-70313
THE HOME DEPOT ; SEDGWICK CLAIMS
MANAGEMENT SERVICES; WORKERS'
COMPENSATION BOARD; AND HON. JOHN B .
COLEMAN, ADMINISTRATIVE LAW JUDGE APPELLEES
ORDER CORRECTING
The order denying rehearing and modifying the opinion rendered August 24,
2006, and page 1 of the original opinion modified August 24, 2006, are corrected to
show the Court of Appeals case No. as 2005-CA-0324-WC in the captions .
Entered August 29th , 2006