Lowe’s Home Centers, Inc. v. Middleton, No. 2014-CA-001136-WC (Ky.App. 2015):  The Fawbush rule is not applicable to circumstances where a claimant returns, post-injury, to exactly the same pre-injury employment and admittedly maintains the capacity to perform it on the date of her award; it is only applicable where a claimant proves he or she no longer has the capacity to work the same type of pre-injury employment, and has either returned to some accommodated form of prior employment or to a different form of employment.

Middleton was injured during the course and scope of her employment with Lowe’s.  The parties agreed that due to her anterior cervical discectomy and fusion, she incurred an impairment rating of 27%, but the parties differed over application of the multipliers under KRS 342.730(1)(c)1 and (1)(c)2.  Middleton returned to work at her same pre-injury job, earning a higher wage than she did pre-injury.  Nonetheless, the ALJ awarded benefits based on the triple multiplier of KRS 342.730(1)(c)1 presumably based on plaintiff’s assumption she might someday require accommodations and might someday require a prescription for pain relief.  The Court determined the record was void of any restrictions on her activities other than a recommendation that she avoid certain activities.  Every physician had released her to resume her pre-injury employment, and Middleton returned to that same pre-injury work.  Because of this, KRS 342.730(1)(c)1 did not apply and, thus, a Fawbush analysis was not appropriate since the Fawbush rule requires that both KRS 342.730(1)(c)1 and (c)2 must apply.  As such, the Court concluded the evidence merely supported reopening, “per KRS 342.730(1)(c)4, for an application of the KRS 342.730(1)(c)2 two-times multiplier to any benefit period during which Middleton’s employment ceases in the future for a reason relating to her injury.”

Governor Beshear has reappointed Sherri Keller of Nicholasville, Kentucky to the Workers’ Compensation Nominating Commission (WCNC).  He has also appointed McKinnley Morgan of London to replace Roger Riggs (also of Morgan’s firm) on the WCNC. Both terms will expire December 4, 2018.

Consol of Kentucky, Inc. v. Goodgame, No. 2013-CA-000281-WC (Ky.App. 2014):  For purposes of establishing jurisdiction under KRS 342.670(5)(d) “Principally localized” means the employer must either lease or own a location in the state at which it regularly conducts its business affairs, and the employee must regularly work at or from that location. 

Claimant worked for Consol as a laborer in its underground mines in Kentucky.  In 2009, Consol closed its Kentucky operation and claimant chose to go to work at Consol’s operation in Virginia.  He began working at the new location on August 1, 2009.  Claimant then left his employment with Consol on January 19, 2010.  He claimed his physical ailments (cumulative trauma to his spine and extremities) prevented him from continuing to work.  On January 17, 2012 he filed an application for resolution of injury claim, listing January 19, 2010 as the date of injury.  The ALJ determined Kentucky did not have jurisdiction over claimant’s claim arising in Virginia and also found the statute of limitations for the claim arising from claimant’s employment in Kentucky began to run from his last day of employment in Kentucky, August 1, 2009, and, thus, his claim was barred because he did not file it within two years of that date.  The Workers’ Compensation Board  (WCB) reversed and the Court of Appeals affirmed the WCB.

The Court reviewed the issue of jurisdiction in light of KRS 342.670 (5)(d)1 and (5)(d)2, which states Kentucky will have jurisdiction if a person’s employment is principally localized in Kentucky, meaning:  (1) The Employer has a place of business in this state and claimant regularly works at or from that place of business or (2) claimant is domiciled and spends a substantial part of his working time in service of his employer in Kentucky.

The Court determined that under (5)(d)1, the employer must either lease or own a location in the state at which it regularly conducts its business affairs and the employee must regularly work at or from that location.  This was not the case with the claimant in Goodgame. Thus, Kentucky did not have jurisdiction.

The WCB and the Court of Appeals did not feel the Kentucky claim was barred by the statute of limitations, however, because the statute did not begin to run until the condition was manifest, meaning a physician had diagnosed the condition and its work-relatedness.  On remand, the ALJ was to determine the date of manifestation before addressing the statute of limitations issue.

Sumitomo Electric Wiring v. Kingery, No. 2013-CA-000855-WC (Ky.App. 2014 ) (designated to be published). The claimant in a medical fee dispute bears the reciprocal burden of rebutting the employer’s evidence of non-compensability.

This appeal originated as an employer’s medical fee dispute as to work-relatedness and reasonableness/necessity of office visits and various prescriptions by plaintiff’s treating physician. The ALJ found the treatment and prescriptions compensable, relying only on plaintiff’s own testimony that her neck and back pain were, at least in part, related to the work injury.  The ALJ ignored the unchallenged testimony of the employer’s medical expert.  beast of burdenThe Court concluded the testimony as to compensability did not involve a situation where causation was apparent and, thus, should have been proved by competent medical evidence.  Since the question was one properly within the province of medical experts, the ALJ was not justified in disregarding the medical evidence and relying instead on the claimant’s lay testimony.  While the employer bore the burden of establishing non-compensability, the Court determined that claimant bore the reciprocal burden of rebutting the employer’s evidence with substantial, contrary evidence.

Central Baptist Hospital v. May, No. 2014-CA-001228-WC (Ky.App. 2014) (not to be published): The ALJ has the discretion to determine whether a settlement agreement is in the best interests of the claimant and whether it constitutes a true meeting of the minds.

In June of 2012, claimant May sustained a herniated disc at T8-T9.  The case was fully litigated.  A hearing took place on June 12, 2013, but a week before the hearing, the claimant submitted reports of two physicians.  Proof was then extended two weeks beyond the hearing to allow the employer to cross-examine the witnesses.

rabit from aiwlThe case stood submitted on June 25, 2013, but the employer did not cross-examine the witnesses.  On July 24, 2013, the employer submitted a proposed settlement agreement to claimant.  Claimant requested a longer period of TTD to be paid under the agreement and submitted proof of such to the employer’s counsel on August 13, 2013. The employer submitted a revised agreement to claimant on September 4, 2013.  The ALJ issued an opinion on September 11, 2013 (before the agreement was signed) awarding PPD benefits with application of the x3 factor under KRS 342.730(1)(c)(1).

On September 13, 2013, without knowledge of the ALJ’s decision, the claimant signed the revised agreement. (NOTE:  She had previously signed it on September 12, 2013, but did so on the wrong line and, further, due to her attorney’s illness had not had a change to fully discuss the terms of the agreement.) On September 16, 2013, the agreement was forwarded to the ALJ.  Soon thereafter the employer filed a motion and affidavit to set aside the September 11, 2013 opinion and to enforce the settlement agreement.

On rehearing, the ALJ determined there was no meeting of the minds, essentially because claimant was not aware of the settlement agreement at the time she signed it.

The employer appealed arguing, among other issues, that the ALJ should have approved the settlement agreement.  The Workers Compensation Board and the Court of Appeals affirmed deferring to the ALJ’s factual determination that the claimant never truly assented to the agreement.

Bluegrass Rehabilitation Center v. Miles, No. 2013-CA-000973-WC (Ky.App. 2014): An ALJ cannot merely recite the evidence he relied upon in supporting a decision of permanent total disability (PTD). He must state how he considered the evidence to arrive at the finding of PTD. Without such, a meaningful review of the case cannot be had.

This appeal stems from an ALJ’s award of permanent total disability (PTD) benefits and the Workers’ Compensation Board’s (WCB) affirming of same.

The ALJ awarded the PTD benefits as follows:qmarks

In the present case, I considered the severity of the plaintiff’s work, her age, her work history, her education, the testimony of the plaintiff and Dr. Madden’s specific opinions regarding her occupational disability. Based on all those factors, I make the factual determination that the plaintiff cannot find work consistently under regular work circumstances and work dependably. I, therefore, make the factual determination that she is permanently and totally disabled.

The Court of Appeals determined this was insufficient as a finding as it merely recited the ultimate fact necessary to sustain an award of PTD. They observed the record showed no evidence that the ALJ balanced claimant’s age, work history, and education against her physical restrictions, the availability of more sedentary jobs, and her ability to perform these jobs. The ALJ’s opinion was “simply conclusive,” as he stated only that he considered the evidence but did not provide an explanation of how he did so.

As a result, the Court of Appeals held the record did not contain the evidentiary basis for the ALJ’s findings so as to allow for a meaningful review of the case. It was remanded for the ALJ to vacate his award of PTD and, if appropriate, award benefits based on adequate evidentiary grounds.

Basin Energy Company v. Howard, No. 2013-CA-001725-WC (KyApp. 2014) (to be published):  Subject matter jurisdiction cannot be waived and an ALJ upon a motion to reopen has subject matter jurisdiction to hear a medical fee dispute, regardless of any prior settlement language relative to a “dismissal with prejudice.” Further, language of  “dismissal with prejudice,” does not forestall a reopening, especially where medicals were clearly left open per the settlement agreement/Form 110.

This appeal originated from a  Kentucky Workers’ Compensation Board (WCB) decision regarding a medical fee dispute.  The dispute and motion to reopen was brought by the employer to contest the reasonableness and necessity of specific medical treatment.  The Chief ALJ allowed the dispute to proceed , and after the taking of proof and a hearing, the ALJ ruled in favor of the employer.  Plaintiff appealed.

Instead of addressing the issues presented on appeal, the WCB focused on boiler plate language in the order approving the original settlement agreement, the specific terms of which left open plaintiff’s right to future medical benefits.  The specific language of the agreement provided:

Settlement is for complete and total dismissal with prejudice of any and all claims, except that Plaintiff preserves and does not waive his right to future medical expenses that are reasonable and necessary and for his physical injuries. The open medical obligation of the Defendant/Employer is defined as a cervical and lumbar strain and right shoulder impingement syndrome.

There is a partial waiver of future medical expenses in connection with the psychological/psychiatric claim. Plaintiff preserves and does not waive his right to future medical expenses for an open medical obligation of the Defendant/Employer which is defined as cervical and lumbar strain and right shoulder impingement syndrome. Medical expenses for any other medical conditions are waived, and $1,000.00 of the settlement proceeds constitutes consideration for this partial waiver of future medical expenses.

Due to the risks and costs of further litigation, Plaintiff and the Defendant/Employer have agreed to compromise and settle this claim for a complete and total dismissal with prejudice of all claims including a waiver of medical expenses, a waiver of vocational rehabilitation and a waiver of the right to reopen; except that Plaintiff preserves and does not waive his right to future medical expenses that are reasonable and necessary and for the following defined open medical obligation; cervical and lumbar strain and right shoulder impingement syndrome. In consideration of the payment of $85,000.00 in a lump sum all claims are waived except that Plaintiff preserves and does not waive his right to future medical expenses covered under the open medical obligation as described above.

The Plaintiff acknowledges the effects of the settlement. The Plaintiff has been advised that a dismissal with prejudice of all claims for indemnity means that he shall have no right to further payment of any income benefits whatsoever as a result of the work accident referenced herein. Plaintiff understands that he shall receive no further income benefits; vocational rehabilitation; or TTD benefits at anytime [sic] in the future. Plaintiff has been warned of the effects of this settlement agreement; Plaintiff desires to go forward with the settlement agreement due to the risk of loss and costs of further litigation.

The language of the order approving the agreement, however, contained broader, boilerplate language:

This matter is before the Administrative Law Judge on motion of the Defendant-Employer to approve a Form 110-I settling the above-captioned claim. The Administrative Law Judge having reviewed the motion and being fully advised; IT IS HEREBY ORDERED that the Plaintiff’s claim will be and the same is hereby ordered DISMISSED, with prejudice, as SETTLED.
Despite the very specific delineation of future medical benefits as not being waiver, the WCB apparently focused on the ALJ’s order approving the agreement and found that the entire claim was dismissed with prejudice (even though the agreement was clear and unambiguous that medicals were to be left open) and held the Chief ALJ was without jurisdiction to rule on the motion to reopen in the first place. Therefore, the board dismissed the appeal and remanded to the Chief ALJ with instructions to deny the motion to reopen.

Basin Energy Company appealed, and the Court of Appeals quite swiftly put the WCB in its place by explaining to it the difference between Subject-Matter Jurisdiction and Particular-Case Jurisdiction.  The Court noted that subject-matter jurisdiction clearly existed and was properly exercised by the ALJ via the motion to reopen after the dismissal.  Thus, the “with prejudice” language in the original order did not divest the ALJ of her statutory authority to decide such matters in general.  The “with prejudice” language only affected her authority  in this particular case.  Thus, the subject matter jurisdiction could not be waived.

The question should have been whether the ALJ had particular case jurisdiction, which could be waived and was, in fact, waived by the parties when the matter proceeded without objection on reopening.

The Court also opined that the right to reopen under KRS 3432.125 is a central part of the Act “that survives irrespective of a dismissal ‘with prejudice,’ particularly a dismissal occurring as a result of a settlement where medicals have been left open.”  The Form 110 in the matter before them was clear and unambiguous that medicals were left open.

mileage rate jan 2015

Roberts v. Sticklen, slip opinion no. 2014-CA-000793-WC (Ky.App. 2014) (Designated to be published):  An attorney representing multiple parties on one claim is limited to one fee with the statutory maximum of $12,000.

Roberts represented the surviving spouse, three children and estate of a deceased claimant arising from a single claim alleging a work-related death.  Following settlement of the claim, Roberts sought an order approving five separate motions for attorney fees amounting to fees just under $30,000.  The ALJ concluded Roberts had represented multiple parties on just one claim and limited him to the statutory maximum of $12,000 per KRS 342.320(2). The Court of Appeals agreed and hinged its holding on what constitutes an “original claim” as the term is used in KRS 342.320.  Relying on Curry v. Toyota Motor Mfg. KY., Inc. 91 S.W.3d 557 (Ky. 2002), it determined that “original claim” means one claim and one work-related injury.  The court held the settlement and resulting benefits in the matter before it stemmed from one claim and one work-related incident, resulting in entitlement to one fee not exceeding $12,000.

KEMI v. Burnett, No. 2013-CA-008134-WC (Ky.App. 2014): Extraterritorial coverage applies when an injury occurs out of state under a contract of hire made within the state and the employment is not principally localized in any state.

Burnett, an Indiana resident, became employed by Stilwell the owner of Deck Doktor, characterized as a mobile business, following negotiations in Kentucky where the two negotiated the terms, conditions, pay, rate and hours of Burnett’s full-time employment with Deck Doktor. Deck Doktor did not have an office location in Indiana or Kentucky as Stillwell conducted business out of his truck and via his cell phone.  Although he performed 90% of his work in Kentucky, Burnett’s work injury occurred in Indiana.  Thus, the issue of extraterritorial coverage under KRS 342.670(1)(b) became relevant. The Court found that Kentucky had jurisdication because  (1) the contract of hire was made when the two met in Kentucky to discuss the terms of employment and (2) his employment was not principally localized in any state due to the mobile nature of the Deck Doktor operation.

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