RENDERED: SEPTEMBER 28, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0423-WC
FRANCISCO RODARTE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2022-CA-0239
WORKERS’ COMPENSATION BOARD
NO. WC-18-64352
BLUELINX CORPORATION; APPELLEES
HONORABLE JOHNATHAN R.
WEATHERBY, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’ COMPENSATION
BOARD
AND
2022-SC-0428-WC
FRANCISCO RODARTE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2021-CA-1473
WORKERS’ COMPENSATION BOARD
NO. WC-16-98428
BLUELINX CORPORATION; APPELLEES
HONORABLE DOUGLAS WAYNE GOTT,
ADMINSTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
Francisco Rodarte (Rodarte) appeals a ruling of the Court of Appeals that
addressed two separate appeals from the Workers’ Compensation Board (the
Board). Rodarte sustained two work-related injuries while working for
BlueLinx Corporation (BlueLinx): a knee and ankle injury in 2016 and a
shoulder injury in 2018. In 2019, Rodarte filed an application for resolution of
a claim (Form 101) for his knee and ankle injuries. At that time, Rodarte was
receiving total temporary disability (TTD) and medical benefits for his shoulder
and had not yet filed a Form 101 for that injury. Rodarte and BlueLinx
ultimately entered into a Form 110 agreement as to compensation (settlement
agreement) for Rodarte’s knee and ankle injuries. The settlement agreement
did not include language regarding Rodarte’s 2018 shoulder injury.
Eleven months after the settlement agreement was entered, Rodarte
reached maximum medical improvement (MMI) for his shoulder injury and
stopped receiving benefits. He filed a Form 101 for his shoulder injury three
months later. BlueLinx denied his shoulder claim, arguing that it was barred
pursuant to KRS1 342.270 due to his failure to join it to the 2016 claim.
Rodarte then filed a motion to reopen the 2016 claim based on a mutual
mistake of fact, asserting that both parties had intended to join the shoulder
injury to the settlement agreement. Chief Administrative Law Judge Douglas
Gott (CALJ Gott) denied the motion to reopen. Thereafter, ALJ Johnathan
Weatherby (ALJ Weatherby) dismissed Rodarte’s shoulder claim, finding that
1 Kentucky Revised Statute.
2
his failure to join his shoulder claim to the 2016 claim rendered his shoulder
claim waived under KRS 342.270. Rodarte appealed the respective rulings.
In separate opinions, the Board affirmed CALJ Gott’s denial of Rodarte’s
motion to reopen and reversed ALJ Weatherby’s ruling that his shoulder claim
was barred due to failure to join. Rodarte and BlueLinx each filed appeals.
The Court of Appeals consolidated the appeals, and a split panel affirmed the
Board in part and reversed it in part. The Court of Appeals affirmed the
Board’s ruling on the motion to reopen but reversed its determination that
Rodarte’s shoulder claim was not barred for failure to join and reinstated ALJ
Weatherby’s order denying the 2018 claim. After review, we affirm the Court of
Appeals in full.
I. FACTS AND PROCEDURAL BACKGROUND
Rodarte is a fifty-five-year-old male with an eleventh-grade education.
He began working for BlueLinx as a truck driver in 2015. On January 5, 2016,
Rodarte fell from a flatbed truck while trying to tighten a ratchet strap, tearing
the meniscus in his right knee and spraining his left ankle. His meniscus was
surgically repaired on July 19, 2016. After he recovered from knee surgery, he
returned to work at BlueLinx on March 25, 2017. Over a year later, on August
13, 2018, Rodarte sustained a superior labrum anterior-posterior (SLAP) tear
in his right shoulder while tightening a ratchet strap. He began receiving TTD
and medical benefits for his shoulder injury the next day. Three months later
in November 2018, Rodarte underwent his first shoulder surgery to repair the
SLAP tear.
3
On March 11, 2019, Rodarte filed a Form 101 for his knee and ankle
injuries under claim number 2016-98428 (2016 claim). On October 7, 2019,
Rodarte and BlueLinx entered into a settlement agreement for his 2016 claim.
The settlement agreement was approved by ALJ Roland Case on the same date.
Rodarte did not file a motion to join his shoulder injury to his 2016 claim, and
the settlement agreement accordingly did not include language excluding his
2018 shoulder injury. A month after the settlement agreement was entered,
Rodarte underwent a second shoulder surgery; he was still reporting pain and
decreased strength following the first surgery and a physician had opined that
revision surgery was needed.2 When the settlement agreement for the 2016
claim was entered Rodarte was still receiving TTD benefits and medical benefits
for his shoulder injury, which BlueLinx continued to pay until September 14,
2020, when he reached MMI.
Thereafter, on December 4, 2020, Rodarte filed a Form 101 for his
shoulder injury under claim number 2018-64352 (2018 claim). In January
2021, BlueLinx filed a Form 111 notice of claim denial. BlueLinx denied the
claim based, in part, on its contention that the 2018 claim was waived in
accordance with KRS 342.270(1) due to Rodarte’s failure to join it to the 2016
claim. That statute provides in relevant part:
If the parties fail to reach an agreement in regard to compensation
under this chapter, either party may make written application for
resolution of claim. . . . When the application is filed by the
employee or during the pendency of that claim, he or she shall join
2 BlueLinx paid for both of Rodarte’s shoulder surgeries.
4
all causes of action against the named employer which have
accrued and which are known, or should reasonably be known, to
him or her. Failure to join all accrued causes of action will result
in such claims being barred under this chapter as waived by the
employee.3
Rodarte then attempted to alter the settlement agreement by filing a motion to
reopen the 2016 claim under KRS 342.125, which states that
(1) Upon motion by any party or upon an administrative law
judge's own motion, an administrative law judge may reopen
and review any award or order on any of the following
grounds:
(a) Fraud;
(b) Newly-discovered evidence which could not have
been discovered with the exercise of due diligence;
(c) Mistake; and
(d) Change 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.
Rodarte argued that the 2016 claim should be reopened due to a “mistake”: he
asserted that both parties intended to include language in the settlement
agreement that excluded his shoulder injury, and that their failure to do so was
a “clerical error.” Rodarte also filed a motion to amend the settlement
agreement and correct the omission nunc pro tunc as well as a motion to void
the settlement agreement for mutual mistake of fact. Rodarte’s motion to
reopen was assigned to CALJ Gott under the original 2016 claim number,
3 KRS 342.270(1).
5
2016-98428, while his 2018 claim and BlueLinx’s corresponding joinder
defense was addressed by ALJ Weatherby under claim number 2018-64352.
On July 1, 2021, CALJ Gott entered an order denying Rodarte’s motion
to re-open the 2016 claim. He reasoned:
Rodarte wants the CALJ to issue an order to retroactively say that
the settlement of the 2016 claim in 2019 had no effect on the
separate 2018 injury claim pending between the same parties.
The CALJ finds no basis for this argument. Rodarte says, “It is
clear there was no intent by either party to settle the 2018 claim”
in the settlement of the 2016 injury. But that’s not the point.
BlueLinx’s defense in the 2018 claim is that Rodarte failed to join
that claim to the 2016 claim before the Form 110 was approved,
and therefore the 2018 claim is barred. It is up to the ALJ in the
2018 claim to decide whether the joinder defense applies. Rodarte
cites no authority to allow this CALJ to reopen a claim to add
language to a settlement agreement in order to protect the viability
of a separate claim.
Rodarte’s alternative motion to amend the prior Form 110 is
denied for these same reasons. [. . .]
Rodarte’s subsequent pleading grounding his motion to reopen in
mutual mistake is also without merit. . . . Interestingly, Rodarte
does not claim any mistake on his part, but says “[BlueLinx] was
clearly mistaken” in not preserving his 2018 shoulder claim in the
2019 settlement agreement. [BlueLinx] concedes no such thing, so
there cannot be a mutual mistake. The fact that [BlueLinx]
continued to pay benefits under the 2018 shoulder claim is
immaterial. Further, [BlueLinx] had to weigh the consequences of
terminating benefits if the joinder defense is unsuccessful.
[. . .]
Finally, as BlueLinx notes, Rodarte does not seek reopening of the
2016 claim to modify the benefits he received from that settlement;
he only seeks to change the effect of the closed 2016 claim on the
pending 2018 claim. That is not a basis for reopening under KRS
342.125.
6
Rodarte thereafter filed a petition for reconsideration (PFR), which was denied.
In denying the PFR, CALJ Gott again emphasized a lack of mutual mistake as
well as a lack of an obligation on BlueLinx’s part to ensure Rodarte’s shoulder
claim was preserved. The CALJ also noted that it was Rodarte’s decision to
settle his knee and ankle claims before his shoulder claim was ready for
negotiations, and that in the absence of an express agreement by both parties
to preserve the 2018 claim, the CALJ lacked the ability to re-open the 2016
claim.
The following month, ALJ Weatherby dismissed Rodarte’s 2018 claim.
The ALJ made the following conclusions in support of his ruling:
11. The undisputed facts in this matter indicate [Rodarte] suffered
an onset of pain while working for [BlueLinx] on August 13, 2018,
reported an injury, and received [TTD] benefits as a result thereof.
12. It is also undisputed that [Rodarte] settled a prior claim against
the same employer on October 7, 2019, for an injury that occurred
in 2016.
13. The Kentucky Supreme Court, in Ridge v. VWV Enterprises,
Inc., 114 S.W.3d 845 (Ky. 2003), said the language of KRS
342.270(1) is clear and unequivocal, and mandatory. Ridge
involved almost identical facts including two sequential but
different injuries suffered in the employ of the same defendant.
The court reasoned that once a claim was made for the first injury,
KRS 342.270(1) required him to join the claim for the second
injury prior to settling the first.
14. [Rodarte] has argued that the failure to join the instant claim
was due to a mistake or in the alternative that the language barrier
prevented his understanding of the joinder requirement.
15. [Rodarte] however testified he understood the origin of the
[TTD] and medical benefits he received due to the 2018 injury. [. .
.]
7
16. The ALJ therefore finds [Rodarte] failed to join this cause of
action as required by KRS 342.270(1), that the claim had accrued,
and that he knew or should have reasonably known of the
requirement due to his representation by competent, English-
speaking, legal counsel.4
Rodarte filed separate appeals with the Board regarding each adverse
ruling. On November 19, 2021, the Board addressed Rodarte’s appeal from
CALJ Gott’s denial of his motion to reopen. Rodarte again argued that the
2016 claim should have been reopened based on mutual mistake of fact: he
asserted that he was mistaken in not including language joining the 2018
claim to the settlement agreement, and that BlueLinx was mistaken because it
continued to pay TTD and medical benefits for his shoulder injury for eleven
months after the settlement agreement was approved.
A unanimous Board panel rejected Rodarte’s arguments and affirmed the
CALJ. The Board reasoned that Rodarte did not identify any “mistake
regarding the settlement agreement as it applies to the 2016 injury claim[,]”
and that the only mistake alleged concerned solely the 2018 claim. Moreover,
Rodarte had presented no evidence whatsoever indicating that the parties
intended the settlement agreement to contain language preserving his shoulder
injury. The Board further discussed that the “payment of benefits in the 2018
claim after the settlement [had] no bearing on the 2016 claim.” Finally, it
noted that “the facts in the case sub judice are indistinguishable from Ridge,”
and that the CALJ properly determined that Rodarte’s motion to reopen was an
4 BlueLinx filed a PFR from this ruling that is not material to this appeal that
was granted. Rodarte did not file a PFR.
8
improper attempt to use the 2016 injury claim to cure a perceived failure
regarding the 2018 claim.
However, a few months later in February 2022, the Board unanimously
reversed ALJ Weatherby’s dismissal of Rodarte’s 2018 claim. The Board held
that KRS 342.270(1)’s compulsory joinder requirement was not applicable
because Rodarte’s shoulder claim had not yet accrued when the settlement
agreement was entered. It reasoned:
In the case sub judice, there is no dispute that after the 2018
injury, Rodarte immediately began drawing TTD benefits and
shortly thereafter underwent surgery on November 27, 2018. The
undated Form 110 in the 2016 claim was approved by ALJ Case by
order dated October 7, 2019. At that time, Rodarte had not filed a
claim for the 2018 injury presumably because he was receiving
TTD benefits and was still recovering from the November 2018
surgery. The parties’ stipulation establishes that at the time the
Form 110 was approved in [the 2016 claim], Rodarte was still
drawing TTD benefits. Further, he underwent another surgery one
month after the settlement agreement in the 2016 claim was
approved. Thus, at the time the settlement agreement was
approved, Rodarte could not possibly ascertain the extent to which
the first surgery remedied his shoulder problem, whether he would
be impaired as a result of the injury, i.e., the nature and extent of
his injury, and whether the injury merited an impairment rating.
Significantly, he underwent a second surgery which BlueLinx’s
evaluating physician, Dr. Walkiewicz, agreed was reasonable and
necessary. . . . Dr. Walkiewicz opined that Rodarte would be at
MMI one year after [that] surgery. Assuming his opinion also
applied to the [first shoulder surgery], Rodarte at the time ALJ
Case approved the settlement of the 2016 claim would not have
been at MMI following the first shoulder surgery. Rather, he would
have attained MMI on November 27, 2019.
Rodarte’s TTD benefits were terminated by BlueLinx on September
4, 2020, over eleven months after the parties settled [the 2016
claim]. Based on a November 2, 2020, examination, Dr. Kay was
the first doctor to offer an opinion concerning the existence of an
impairment rating assessing a 24% impairment rating as a result
of the 2018 injury. . . . In light of the above, we hold that at the
9
time [the 2016 claim] settled, Rodarte’s claim had not accrued for
purposes of KRS 342.270(1). At the time of the settlement,
assuming Dr. Walkiewicz would have assessed MMI one year after
the first [shoulder] surgery, Rodarte would have attained MMI at
least one month beyond the date ALJ Case approved the
settlement on October 7, 2019. Significantly, when ALJ Case
approved the [the settlement agreement in the 2016 claim] Rodarte
was drawing TTD benefits. The BRC5 Order reflects Bluelinx did
not dispute Rodarte’s entitlement to TTD benefits between August
14, 2018, and September 14, 2020. Thus, Rodarte had met the
statutory definition of temporary total disability and was entitled to
TTD benefits during this period. Just as important, as of October
7, 2019, none of the physicians could offer an opinion regarding
the nature and extent of the injury and whether the 2018 injury
generated an impairment rating pursuant to the AMA Guides, as
the AMA Guides are clear an impairment rating cannot be assessed
prior to attainment of MMI.
The first impairment rating offered in the case sub judice was
generated by Dr. Kay, who based on a November 2, 2020,
examination assessed a 24% impairment rating. Consequently, at
the earliest, Rodarte was aware he sustained a permanent injury at
the time of Dr. Kay’s report. [Most] importantly, at the time the
2016 claim settled, the statute of limitations had not begun to run
on Rodarte’s claim as the limitation period began to run after
September 14, 2020, when payment of TTD benefits ceased. Thus,
his claim had not accrued at the time the settlement agreement in
the 2016 claim was approved and KRS 342.270(1) is inapplicable.
BlueLinx would have us hold that in order for Rodarte’s August
2018 claim to be viable, he was required to file a claim for the 2018
injury even though he was recovering from surgery, probably not at
MMI, and could not be appraised of the nature and extent of his
right shoulder injury. Further, in all likelihood, upon filing the
claim for the 2018 injury, Rodarte’s TTD benefits would have been
terminated. According to BlueLinx, even though there was
uncertainty as to the extent the first surgery was beneficial and
whether Rodarte’s 2018 right shoulder injury merited an
impairment rating, he was required to file a claim for the 2018
injury. As claimed by BlueLinx, Rodarte was required to file a
claim for the 2018 eleven months before the statute of limitations
began to run on the claim. We reject that premise.
5 Benefit review conference.
10
The Board held that Ridge was distinguishable because this Court
specifically noted that there was no indication that TTD benefits were paid for
Ridge’s second injury at the time Ridge filed a claim for his first injury. In
Ridge this Court noted that
[a]lthough TTD benefits continued to be paid for the [second] injury
at that point, the parties stipulated that they ceased shortly
thereafter on December 26, 1999. The [first] injury claim was not
filed until April 19, 2000. Contrary to the claimant's assertion,
there is no indication in the record that any TTD benefits for the
[second] injury were paid after the [first] injury claim was filed.6
Based on the foregoing language, the Board concluded that this Court’s holding
in Ridge would have been different “had Ridge been receiving TTD benefits for
the [second] injury at the time the parties settled the [first] injury claim.” For
reasons discussed below, the Board also found Saint Joseph Hospital v. Frye,7 a
published case, as well as Pepsi Cola General Bottlers, Inc. v. Butler,8 and
Martin County Fiscal Court v. Simpkins,9 two unpublished cases, to be
persuasive.
BlueLinx appealed the Board’s ruling on the compulsory joinder issue,
while Rodarte appealed its ruling on his motion to reopen. The Court of
Appeals consolidated the cases and addressed both issues in Rodarte v.
6 114 S.W.3d at 847.
7 415 S.W.3d 631 (Ky. 2013).
8 2006-CA-002401-WC, 2007 WL 1964526 (Ky. App. July 6, 2007), aff'd sub
nom. Pepsi Cola v. Butler, 2007-SC-000514-WC, 2008 WL 1850581 (Ky. Apr. 24,
2008).
9 2014-CA-001863-WC, 2015 WL 4880356 (Ky. App. July 24, 2015).
11
BlueLinx Corporation.10 The court affirmed the Board and the CALJ in their
rulings on the motion to reopen and agreed that Rodarte had presented no
evidence of mutual mistake of fact, and that he could not use the 2016 claim to
cure his failure to join the 2018 claim.11
However, the court reversed the Board as to the joinder issue, thereby
reinstating the ALJ’s motion to dismiss the 2018 claim.12 The court held that
under its unpublished opinion of Wireman v. Bizzack, Inc.,13 Rodarte’s 2018
claim had accrued “on the day he was injured and first saw a doctor for his
injury.”14 The court further concluded that “[t]he Board’s determination that
MMI must be reached for a claim to accrue is not based on any precedent[,]”
and that the Board conflated the issues of claim accrual and the statute of
limitations.15 It explained that, because Rodarte’s claim for his shoulder injury
accrued on the day that he was injured, the statute of limitations on his claim
began running on that date.16 And, the fact that BlueLinx paid TTD benefits
on the 2018 claim tolled the statute of limitations but did not change the date
of accrual.17
10 2021-CA-1473-WC, 2022 WL 3721729 (Ky. App. Aug. 26, 2022).
11 Id. at *6.
12 Id. at *8.
13 2011-CA-001948-WC, 2012 WL 2483451 (Ky. App. June 29, 2012).
14 Rodarte, 2022 WL 3721729 at *7.
15 Id.
16 Id. at *8.
17 Id.
12
Judge Maze dissented and agreed with the Board that Rodarte’s 2018
claim had not yet accrued when he settled the 2016 claim.18 He asserted that
three decisions relied upon by the Board that were rendered subsequent to
Ridge —Frye, Butler, and Simpkins—called the result in Ridge into question
and “made it clear that joinder is not required simply because a subsequent
injury occurs while a prior injury claim is pending[.]”19
Rodarte now appeals the Court of Appeals’ rulings on his motion to
reopen and the dismissal of his 2018 claim to this Court. Additional facts are
discussed below as necessary.
II. ANALYSIS
Our well-established standard of review in workers’ compensation cases
is to “correct the Board only where [this] 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 a gross injustice.”20
However, when an issue solely concerns statutory interpretation, i.e., a
question of law, our review is de novo and we provide no deference to the
rulings made below.21
18 Id.
19 Id.
20 W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
21 Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky. 2013) (citing Ky. Emps.
Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007)).
13
A. Rodarte’s motion to reopen was properly denied.
As noted, KRS 342.125 provides that “an administrative law judge may
reopen and review any award or order” on the grounds of fraud, newly
discovered evidence, mistake, or change of disability.22 “Upon reopening, the
administrative law judge may end, diminish, or increase compensation
previously awarded, within the maximum and minimum provided in [KRS
Chapter 342], or change or revoke a previous order.”23 In order to prevail on a
motion to reopen, a claimant is “required to make a reasonable prima facie
preliminary showing of the existence of a substantial possibility of the presence
of one or more of the prescribed conditions that warrant a change in [the ALJ’s
decision] before his adversary is put to the additional expense of relitigation.”24
Rodarte has never argued that his 2016 claim should be reopened to
affect a material change to his 2016 settlement agreement. Rather, he sought
only to add language to the settlement agreement stating that his 2018
shoulder claim would not be waived by its entry. We agree with the reasoning
of both the CALJ and the Board that KRS 342.125 provides no authority for an
ALJ to reopen a closed claim to add language in order to protect the viability of
a separate claim.
Moreover, Rodarte continues to argue that his motion to reopen should
have been granted on the basis of mutual mistake of fact. He contends that he
22 KRS 342.125(1).
23 KRS 342.125(4).
24 Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681, 682 (Ky. 1972).
14
and BlueLinx were mutually mistaken on a material fact regarding the 2016
settlement agreement. Rodarte asserts that he was mistaken in not including
language joining his 2018 claim to the settlement agreement, while BlueLinx
was mistaken after the settlement agreement was entered because it continued
to pay TTD and medical benefits for the 2018 claim. This does not constitute
mutual mistake of fact.
To reform a written contract upon the equitable grounds of mutual
mistake, the proponent of the reformation must satisfy these three
elements: “First, it must show that the mistake was mutual, not
unilateral. Second, [t]he mutual mistake must be proven beyond a
reasonable controversy by clear and convincing evidence. Third, it
must be shown that the parties had actually agreed upon terms
different from those expressed in the written instrument.”25
Rodarte’s argument fails each of these requirements. BlueLinx has never
conceded that both it and Rodarte intended to include his 2018 shoulder injury
in the 2016 settlement agreement, and Rodarte has never presented any
evidence, let alone clear and convincing evidence, of that alleged mutual intent.
We therefore agree that Rodarte failed to make a prima facie case for reopening
his 2016 claim and affirm.
B. Rodarte’s 2018 claim accrued prior to the entry of the settlement
agreement for the 2016 claim. His 2018 claim is therefore barred by
KRS 342.270.
Rodarte next argues that ALJ Weatherby and the Court of Appeals erred
by ruling that his 2018 claim was waived under KRS 342.270 due to his failure
to join that claim to his 2016 claim prior to the entry of the settlement
25 Nichols v. Zurich Am. Ins. Co., 423 S.W.3d 698, 702–03 (Ky. 2014) (quoting
Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 704 (Ky. 2006)).
15
agreement. He argues in line with the reasoning of both the Board and the
dissenting opinion from the Court of Appeals decision below. In particular, he
asserts that although Ridge appears to be controlling, its facts are sufficiently
distinguishable. And, he argues, the subsequent opinions of Frye, Butler, and
Simpkins have called the holding in Ridge into question. For the reasons that
follow, we disagree.
We begin with the joinder statute at issue, KRS 342.270(1). The statute
became effective in 1996 and was enacted by the General Assembly to address
concerns raised by this Court in Jeep Trucking, Inc. v. Howard26 regarding
problems that often arose due to the piecemeal litigation of workers’
compensation claims. KRS 342.270(1) directs in its entirety:
If the parties fail to reach an agreement in regard to compensation
under this chapter, either party may make written application for
resolution of claim. The application must be filed within two (2)
years after the accident, or, in case of death, within two (2) years
after the death, or within two (2) years after the cessation of
voluntary payments, if any have been made. When the application
is filed by the employee or during the pendency of that claim, he or
she shall join all causes of action against the named employer
which have accrued and which are known, or should reasonably
be known, to him or her. Failure to join all accrued causes of
action will result in such claims being barred under this
chapter as waived by the employee.27
Accordingly, a workers’ compensation claimant is required to join all causes of
action against an employer “which have accrued and which are known, or
26 891 S.W.2d 78 (Ky. 1995).
27 (Emphasis added).
16
should reasonably be known[.]”28 And, if a claimant fails to join an accrued
cause of action, that cause of action will be considered waived and therefore
barred. The sole issue before this Court, then, is whether Rodarte’s shoulder
injury claim accrued before the settlement agreement on his 2016 claim was
entered. We begin with discussion of the case law cited by the parties.
Ridge is considered the seminal case to interpret and apply KRS
342.270(1). But, although the facts of Ridge are similar to the ones at bar, the
issues addressed are quite different. The claimant in Ridge sustained two
distinct work-related injuries while working for the same employer: a knee
injury in July 1998 and a back injury in April 1999.29 In November 1999, the
employer’s insurance carrier sent a letter to the claimant’s attorney proposing
that the parties settle the 1998 knee injury “and concentrate on the [1999]
back claim.”30 The employer paid TTD benefits for the back injury, but those
payments ceased in December 1999, a month after the carrier’s letter was
sent.31 Four months later in April 2000, the claimant filed a Form 101 for his
knee injury.32 The parties reached a settlement agreement for the knee injury
in August 2000, but the agreement contained no mention of his back claim.33
28 Id.
29 114 S.W.3d at 846.
30 Id.
31 Id.
32 Id.
33 Id.
17
The claimant did not file a Form 101 for his back injury until February 2001,
which the employer denied citing a lack of joinder under KRS 342.270(1).34
Following a hearing, the ALJ dismissed the back claim, noting that
“although the claimant was clearly aware of his back injury when settling the
knee injury claim, he did not seek to join the claims,” and that the burden was
on the claimant to comply with KRS 342.270(1) “between the date of the back
injury and the date upon which the knee injury claim was settled[.]”35 In his
PFR, the claimant asserted that KRS 342.270 only required joinder of claims
arising out of the same incident.36 In addition, he argued that the ALJ erred by
not addressing his argument that the employer was estopped from invoking
KRS 342.270 because it agreed to bifurcation via its carrier’s letter.37 The PFR
was denied, the claimant appealed, and the Board and Court of Appeals
affirmed.38
Before this Court, the claimant argued: (1) that he sustained different
injuries on different dates, and KRS 342.270 applied separately to each
incident; and (2) that the employer was estopped from invoking the joinder
statute because it had agreed to bifurcating the claims via its carrier’s letter,
and that the ALJ erred by failing to consider his estoppel argument.39 The
34 Id.
35 Id.
36 Id.
37 Id.
38 Id.
39 Id.
18
Ridge Court dismissed the claimant’s first argument in short order by holding
that
[t]he language of KRS 342.270(1) is clear, unequivocal, and
mandatory, both with respect to a worker's obligation to join “all
causes of action” against the employer during the pendency of a
claim and with respect to the penalty for failing to do so. Under
KRS 342.270(1), it is immaterial that the claimant's knee and back
injuries arose at different times, involved separate claims, and were
treated by the parties as separate matters. Once he filed a claim
for the knee injury, KRS 342.270(1) required him to file and join
the claim for the back injury before the knee injury claim was
settled.40
The Court likewise rejected the claimant’s estoppel argument. It held:
We are not persuaded that by sending a letter to encourage
settlement of the knee injury claim so that the parties could
concentrate on the back injury or that by paying separate TTD
benefits for the two injuries, the employer or its carrier engaged in
conduct that warranted an estoppel. The injuries occurred at
different times and affected different parts of the claimant's body.
At the time that the letter was sent, no claim had been filed for
either injury. Although TTD benefits continued to be paid for the
back injury at that point, the parties stipulated that they ceased
shortly thereafter on December 26, 1999. The knee injury claim
was not filed until April 19, 2000. Contrary to the claimant's
assertion, there is no indication in the record that any TTD
benefits for the back injury were paid after the knee injury claim
was filed.41
So, the primary issue the Ridge Court addressed was whether KRS
342.270(1) applies separately to each work-related injury a claimant might
sustain. Because of that, although the Ridge claimant’s back injury had
impliedly accrued prior to the settlement agreement because joinder was
mandated, nowhere in the opinion does the Court directly address when, how,
40 Id. at 847.
41 Id.
19
or why his back claim accrued. And, although the Ridge Court specifically
noted that TTD payments for the back injury ceased prior to the settlement
agreement, it did so in response to an estoppel argument, not an accrual
argument. We therefore must respectfully disagree with the Board’s conclusion
that the outcome in Ridge would have been different had the claimant been
receiving TTD benefits for the second injury at the time the parties settled the
first injury claim.
Frye, Butler, and Simpkins are similarly not dispositive of the issue now
before us nor do they call any aspect of Ridge into question.
Frye presented an atypical set of procedural circumstances wherein the
claimant’s second work-related injury did not occur until after the final hearing
before the ALJ for her first work-related injury.42 When this Court addressed
whether joinder of the claims was required, it explicitly declined to address the
claimant’s argument that her cause of action for the second injury had not yet
accrued.43 Instead, the Court held that joinder was not mandated under KRS
342.270(1) because her “first injury claim was not pending between the date of
the hearing and the date the ALJ rendered his opinion regarding that claim.”44
Frye is therefore of little use here, as it did not address accrual and is factually
42 415 S.W.3d at 631-32.
43 Id. at 632.
44 Id. at 635. See KRS 342.270(1) (“When the application is filed by the
employee or during the pendency of that claim, he or she shall join all causes of
action against the named employer . . . .”) (emphasis added).
20
distinct: Rodarte’s second injury occurred several months before he filed a
Form 101 for his first injuries.
The next two opinions, Butler and Simpkins, are both un-published.
“‘Not To Be Published’ opinions of the Supreme Court and the Court of Appeals
are not binding precedent[.]’”45 Nevertheless, even assuming arguendo that
those opinions have precedential value, they would not be dispositive.
Butler addressed when a claimant’s cause of action for a psychological
injury accrued.46 In February 2000, the claimant sustained a work injury to
his coccyx.47 He thereafter filed a Form 101 for that injury and settled the
claim with his employer in October 2001.48 Neither the Form 101 nor the
settlement agreement contained any language concerning a psychological
injury.49 During his deposition prior to the settlement, the claimant testified
that he took “nerve pills” for depression and that he was experiencing anxiety
and depression as a result of no longer being able to provide for his family.50
The claimant returned to work from his injury in January 2001 and continued
45 Kentucky Rule of Appellate Procedure (RAP) 41(A).
46 Butler, 2007 WL 1964526 at *6. We note here that this Court subsequently
affirmed the Court of Appeals’ ruling in Butler in an unpublished opinion, Pepsi Cola v.
Butler, 2007-SC-000514-WC, 2008 WL 1850581 (Ky. Apr. 24, 2008), and agreed with
the Court of Appeals’ reasoning. The Board and Rodarte have only cited to the Court
of Appeals opinion; it is therefore the one we address.
47 Butler, 2007 WL 1964526 at *1.
48 Id.
49 Id.
50 Id. at *2.
21
to work until July 2004 when he had to stop due to increased back pain and
fatigue.51
In March 2005 the claimant filed a motion to reopen alleging that his
physical condition had worsened and that he had developed depression due to
his severe, chronic pain.52 In support of his psychological injury claim, he
submitted physician reports diagnosing him with depression caused, at least in
part, by loss of function from his work-related injury.53 The ALJ granted the
motion to reopen, rejected the employer’s argument that the psychological
injury claim was barred by KRS 342.270(1), and awarded the claimant benefits
for his psychological injury.54
On appeal, the employer argued that the cause of action for the
psychological injury claim had accrued when the claimant first experienced
depression and anxiety and sought treatment for those symptoms, which
occurred prior to the settlement agreement.55 The claimant responded, and the
Court of Appeals agreed, that his “cause of action . . . did not accrue until that
claim had all the elements present to be a compensable claim,” which did not
occur until after the settlement agreement was entered.56
51 Id.
52 Id. at *1.
53 Id. at *3.
54 Id. at *5.
55 Id. at *6.
56 Id. (internal quotation marks omitted).
22
The Court of Appeals began by noting that KRS 342.270(1) mandates a
claimant to bring all claims “which are known, or should reasonably be known
to him.”57 Based on this, it held that “a cause of action for a psychological
injury accrues when a claimant becomes aware that he has suffered a
psychological injury.”58 Next, it determined “when a psychological injury
occurs” based on the definition of injury provided in KRS 342.0011:
any work-related traumatic event or series of traumatic events,
including cumulative trauma, arising out of and in the course of
employment which is the proximate cause producing a harmful
change in the human organism evidenced by objective medical
findings. . . . but shall not include a psychological, psychiatric, or
stress-related change in the human organism, unless it is a direct
result of a physical injury.59
Reading this definition in conjunction with the joinder statute, the court held
that a “cause of action for a psychological injury accrues when a claimant has
suffered a ‘harmful change in [his] human organism evidenced by objective
medical findings’ and he knows or should know that such harmful change is a
‘direct result of a physical injury.’”60 The court noted that there was no
evidence of record that the claimant treated with a psychologist or psychiatrist
or underwent any psychological testing prior to the settlement agreement, nor
was there evidence that a physician had assigned him an impairment rating for
57 Id.
58 Id.
59 Id. at *7.
60 Id.
23
his complaints of anxiety or depression until after the reopening.61 Citing
Gibbs v. Premier Scale Company/Indiana Scale Co.,62 the court held that the
claimant’s psychological injury claim did not accrue until “his symptoms were
diagnosed by a physician and there were objective medical findings to support
that diagnosis.”63 It accordingly affirmed the ALJ’s finding that the claim was
timely filed.64
In Simpkins, the claimant sustained skin damage caused by an exposure
to chemicals in July 2010.65 He later filed a Form 101 for the injury and
entered into a settlement agreement regarding the claim.66 On October 10,
2011, the ALJ entered a hearing order noting that the parties had settled the
claim, and the settlement was formally approved on October 27.67 Earlier that
month, on October 4, Simpkins injured his back and reported the injury to his
employer.68 However, “the record [demonstrated] that it was unclear on
October 5, 2011, whether Simpkins’ complaints stemmed from a new work-
related injury or from aggravation of preexisting and possibly non-work-related
61 Id. at *7.
62 50 S.W.3d 754 (Ky. 2001) (holding that a diagnosis must be supported by
“objective medical findings,” i.e., direct observation and testing applying objective or
standardized methods, in order to establish the presence of a compensable injury).
63 Butler, 2007 WL 1964526 at *7.
64 Id. at *8.
65 2015 WL 4880356 at *1.
66 Id.
67 Id.
68 Id.
24
back pain.”69 The claimant filed a Form 101 for his back injury in January
2013, which his employer moved to dismiss based on his failure to join his
back injury to his 2010 skin damage claim.70 The ALJ concluded that KRS
342.270 did not bar his claim because the claimant’s back injury did not
accrue until after the skin damage claim was settled, and the Board affirmed.71
The sole issue before the Court of Appeals was whether the joinder
statute required the claimant to join his back injury claim to his skin injury
claim prior to the entry of the settlement agreement.72 The court noted that
both the ALJ and the claimant had relied heavily on Butler, which in turn relied
on the definition of “injury” under KRS 342.0011(1) “in holding that the
claimant’s cause of action for psychological injury did not accrue until the
claimant [had] suffered a harmful change in his human organism evidence by
objective medical findings and he knows or should know that such harmful
change is a direct result of a physical injury.”73
The Court of Appeals reaffirmed its holding in Butler and saw no reason
it was inapplicable to the claimant in Simpkins.74 Citing Butler and KRS
342.0011, the Court of Appeals reasoned that the existence of an injury is only
69 Id. at *1-2.
70 Id. at *1.
71 Id.
72 Id.
73 Id. at *2 (internal quotation marks omitted).
74 Id.
25
one element of determining when a workers’ compensation claim “accrues.”75
In addition, the claimant must also be aware that the injury is work-related.76
It held that the claimant was not aware that his back injury was work related
until January 3, 2013, when a physician concluded that his back injury “was a
job injury resulting in a low back injury[.]”77 The court went on to reason that
in the five days between the [back] injury and settlement of the
2010 claim, “[i]t was extremely difficult to determine whether
Simpkins had a meritorious claim for a work-related injury[.]”
Indeed, on October 10, 2011, when the 2010 claim was settled, the
appropriate process for making such a determination had only just
begun. To read KRS 342.207(1) as requiring Simpkins to
immediately continue the settlement of the 2010 claim and seek
joinder of an unconfirmed work-related claim is unreasonable,
unduly burdensome, and beyond the intended function of KRS
342.270(1).78
Accordingly, the court held that the claimant’s back injury claim was not
barred by KRS 342.270(1).79
In comparison to Butler and Simpkins, in the case now before us there
has never been any dispute that on August 13, 2018, Rodarte sustained a
“work-related traumatic event” that was “the proximate cause producing a
harmful change in the human organism evidenced by objective medical
findings.” The parties stipulated that Rodarte’s shoulder injury was work-
related, and there can be no doubt that objective medical findings supported
75 Id.
76 Id.
77 Id.
78 Id. at *3.
79 Id.
26
the diagnosis of that injury: an MRI revealed a SLAP tear in Rodarte’s shoulder
which led to his first shoulder surgery on November 27, 2018. And, again,
both the MRI and the shoulder surgery occurred before the Form 101 for his
knee and ankle injuries was filed in March 2019. Consequently, even if Butler
and Simpkins held sway, they are simply inapplicable here.
Rather, to determine the date on which Rodarte’s shoulder injury claim
accrued, we now turn to KRS 342.185, the workers’ compensation statute of
limitations. The statute directs:
[N]o proceeding under this chapter for compensation for an injury .
. . shall be maintained unless a notice of the accident shall have
been given to the employer as soon as practicable after the
happening thereof and unless an application for adjustment of
claim for compensation with respect to the injury shall have been
made with the department within two (2) years after the date of
the accident[.] . . . If payments of income benefits have been
made, the filing of an application for adjustment of claim with
the department within the period shall not be required, but
shall become requisite within two (2) years following the
suspension of payments or within two (2) years of the date of
the accident, whichever is later.80
KRS 342.185 acts “as both a statute of limitations and a statute of repose.”81
When the alleged injury is cumulative, “the running of both periods begins on
the date the injured employee is advised that he has suffered a work-related
cumulative trauma injury.”82 But, for single-event injuries such as Rodarte’s
this Court has refused to adopt a discovery rule,83 and has consistently held
80 KRS 342.185(1) (emphasis added).
81 Consol of Ky., Inc. v. Goodgame, 479 S.W.3d 78, 84 (Ky. 2015).
82 Id.
83 See Coslow v. General Elec. Co., 877 S.W.2d 611 (Ky. 1994).
27
that “the running of both periods begins on the date of accident,”84 i.e., the
date the work-related injury occurs. “A statute of limitations limits the time in
which one may bring suit after the cause of action accrues[.]”85 If the statute
of limitations is triggered on the date the cause of action accrues, and the
statute of limitations begins running on the date of the accident, then the date
of the accident is the date the cause of action accrues. Therefore, Rodarte’s
claim accrued on the date he injured his shoulder: August 13, 2018.
The fact that Rodarte received TTD benefits beginning the day after his
shoulder injury and ending almost a year after the settlement agreement is a
red herring. If income benefits are paid, KRS 342.185 tolls the running of the
statute of limitations until two years after the last voluntary payment or two
years after the date of the accident, whichever is later.86 But a tolling provision
is just that, it postpones the date on which a claimant must file a claim for a
cause of action that has already accrued, it does not change the date on which
it accrued. It is on this point that the Board “overlooked or misconstrued
controlling statutes or precedent” when it held that
at the time the 2016 claim settled, the statute of limitations had
not begun to run on Rodarte’s claim as the limitation period began
to run after September 14, 2020, when payment of TTD benefits
ceased. Thus, his claim had not accrued at the time the
settlement agreement in the 2016 claim was approved and KRS
342.270(1) is inapplicable.
84 Consol, 479 S.W.3d at 84.
85 Id. at 82 (quoting Coslow, 877 S.W.2d at 612) (emphasis added).
86 KRS 342.185(1).
28
In other words, the Board held that Rodarte’s claim accrued on the date that
BlueLinx stopped paying TTD benefits. But, as noted, Rodarte’s claim accrued
on the date his shoulder injury occurred, meaning that his statute of
limitations began running on August 13, 2018. BlueLinx’s act of beginning
TTD payments on August 14 tolled the statute of limitations, but it did not and
could not cause the date of accrual to change. If the Board’s logic is followed,
then the act of making voluntary payments would have stopped the running of
a statute of limitations that never started: it held that the claim did not accrue,
and therefore the statute of limitations did not begin running, until Rodarte
stopped receiving voluntary benefits.
In addition, we agree with the Court of Appeals’ observation that the
Board’s holding that Rodarte had to reach MMI before his claim could accrue is
not based on any precedent. In that vein, we would further note that 803 KAR
25:010 §7, which lists the documents that must be filed in support of a Form
101, does not require documents stating that the claimant has reached MMI.
Rather, the regulation states, in relevant part:
(1) The applicant shall file an application for resolution of an injury,
occupational disease, hearing loss, or interlocutory relief claim
through the LMS. At the time of, or within fifteen (15) days after
the filing of the application, the following shall be filed:
(d) One (1) medical report, which may consist of
legible, handwritten notes of the treating physician,
and which shall include the following:
1. A description of the injury that is the
basis of the claim; [and]
2. A medical opinion establishing a causal
relationship between the work-related
29
events or the medical condition that is
the subject of the claim[.]
Moreover, the plain language of KRS 342.270 requires joinder of all claims that
have accrued and are known or reasonably should be known. Nowhere does
the statute state that the joinder is only required if the claimant has reached
MMI.
Based on the foregoing, we hold that Rodarte’s shoulder injury claim
accrued prior to the entry of the settlement agreement for the 2016 claim. KRS
342.270(1) directs that a claimant “shall join all causes of action against the
named employer which have accrued and which are known, or should
reasonably be known, to him[.]” And, “[f]ailure to join all accrued causes of
action will result in such claims being barred under this chapter as waived by
the employee.” Rodarte’s cause of action for his shoulder injury accrued on the
date he injured his shoulder: August 13, 2018. There is no dispute as to the
injury’s work-relatedness or that the SLAP tear diagnosis was supported by
objective medical evidence. It is also not alleged that the injury was not
“known” to Rodarte. When Rodarte filed his Form 101 for his knee and ankle
injury in November 2018, he had already injured his shoulder, been diagnosed
with a SLAP tear, and underwent surgery to repair the SLAP tear. He was
therefore obligated by KRS 342.270(1) to join his 2018 shoulder claim to his
2016 knee and ankle claim prior to the finality of the settlement agreement.
His failure to do so renders his 2018 claim barred.
Although we feel constrained by KRS 342.270(1) to reach this outcome,
we are further compelled to note our displeasure in doing so. It is well-
30
established that the primary purpose of the Workers’ Compensation statutes
“is to aid injured or deceased workers” and that they must “be interpreted in a
manner that is consistent with their beneficent purpose.”87 Under these facts
and circumstances we are left with no choice but to apply KRS 342.270(1),
though doing so does not serve the overarching purpose of the Workers’
Compensation statutes.
III. CONCLUSION
Based on the foregoing, we affirm the Court of Appeals in full. CALJ
Gott’s order denying Rodarte’s motion to reopen is affirmed, and ALJ
Weatherby’s order dismissing Rodarte’s 2018 shoulder claim is hereby
reinstated.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Michael Louis Weber
Weber, Dickey & Bellman
COUNSEL FOR APPELLEE, BLUELINX CORP.:
Douglas P. Dawson
Sewell & Neal, PLLC
87 See, e.g., Kindred Healthcare v. Harper, 642 S.W.3d 672, 679 (Ky. 2022)
(quoting Ky. Unisured Emp.’s Fund v. Hoskins, 449 S.W.3d 753, 762 (Ky. 2014)).
31
APPELLEE, WORKERS’ COMPENSATION
BOARD:
Michael Wayne Alvey, Chair
Department of Workers’ Claims
APPELLEE, ADMINISTRATIVE LAW JUDGE:
Hon. Johnathan R. Weatherby
APPELLEE, ADMINISTRATIVE LAW JUDGE:
Hon. Douglas Wayne Gott
32