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OPINION
ENTERED: July 31, 2012
CLAIM NO. 200500744
BOBBY WORKMAN PETITIONER
VS. APPEAL FROM HON. J. LANDON OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE
TWIN RESOURCES, LLC
and HON. J. LANDON OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
*
* * * * *
BEFORE: ALVEY,
Chairman, STIVERS and SMITH, Members.
STIVERS,
Member. Bobby Workman (“Workman”) appeals from the
December 12, 2011, Order of Hon. J. Landon Overfield, Chief Administrative Law
Judge (“CALJ”) summarily resolving a medical fee dispute in favor of Twin
Resources, LLC (“Twin Resources”) and relieving Twin Resources “from the
responsibility of payment of the contested medical expenses” and “from the
responsibility of payment of any similar medical expenses for treatment of the
same condition by the same medical provider.”
Because of the issue raised on appeal, a recitation of the
procedural history is necessary. In a
January 20, 2006, opinion and award, the Hon. Donna H. Terry, Administrative
Law Judge (“ALJ Terry”) determined Workman sustained compensable neck and back
injuries, each of which resulted in a 2% impairment for a total impairment of
4%.[1] ALJ Terry subsequently issued a March 23,
2006, final opinion and order determining Workman’s average weekly wage
(“AWW”). On April 17, 2006, ALJ Terry
entered an amended opinion and final order correcting a mistake contained in
the March 23, 2006, final opinion and order.
ALJ Terry’s decision was affirmed by this Board on September 1,
2006.
In 2008, Twin Resources filed a motion to reopen and Form
112 medical fee dispute.[2] A portion of the medical fee dispute related
to treatment rendered or proposed to be rendered by Dr. David Weinsweig, since on
October 23, 2008, CALJ Terry entered an order joining Dr. Weinsweig as a
party. On November 26, 2008, CALJ Terry
sustained Twin Resources’ motion to reopen to the extent the matter would be
referred to an ALJ for final adjudication.
The medical fee dispute was assigned to Hon. Douglas W. Gott,
Administrative Law Judge (“ALJ Gott”).
In a September 1, 2010, opinion and order, ALJ Gott noted initially the
primary issue was the compensability of low back surgery proposed by Dr.
Weinsweig and the medical fee dispute was later supplemented to contest various
medications. In his findings and
conclusions, ALJ Gott noted as follows: “The first issue raised was the
recommendation for surgery, but that issue is now moot based on Dr. Weinsweig’s
note of February 24, 2009.” ALJ Gott
then resolved the remaining issues. Workman
filed a notice of appeal appealing the September 1, 2010, opinion and order of
ALJ Gott, which was subsequently dismissed by order December 8, 2010.
On September 6, 2011, Twin Resources filed another motion
to reopen and Form 112 stating in the motion that the purpose of filing the
Form 112 is as follows:
[F]or the purpose of determining
whether a request for pre-approval of cervical fusion surgery consisting of an
anterior cervical discectomy and allograft fusion with plating at C4-5 and
probably also C3-4 is for the work-related injury that is the subject of this
case and reasonable and necessary and compensable under the K.R.S. 342.020.
Twin Resources stated it
had already filed one medical fee dispute involving Workman and Dr. Weinsweig regarding
proposed L3-4 lumbar microdiscectomy.
Twin Resources noted Dr. Weinsweig subsequently withdrew the surgical
request. Twin Resources stated Dr.
Weinsweig has now billed it for another surgery consisting of anterior cervical
discectomies and allograft fusion with plating at C3-4 and C4-5. Twin Resources stated as follows:
Attached is an [sic] utilization review
report of Dr. Richard Mortara, a Board-certified neurosurgeon, Index No.
3024. Dr. Mortara found that there was
no evidence of a radiculopathy or myelopathy.
Dr. Mortara indicated that clinical examination and neurosurgical
examination of the cervical spine was normal.
While Plaintiff reports chronic neck and back pain the MRI scan did not
show any specific abnormality at C3-4 or C4-5 where the request for anterior
cervical discectomy and fusion was targeted according to Dr. Weinsweig’s
records. Dr. Mortara stated that there
was a significant lack of correlation with MRI scan and clinical examinations
and that it is very questionable as to how the determination was made by Dr.
Weinsweig as to what levels to operate on.
Dr. Mortara stated that the Plaintiff did not meet the guidelines for
anterior cervical fusion from the Official Disability Guidelines publication or
Milliam Care Guidelines. Relief from
liability for this medical billing is respectfully requested.
The Form 112 filed by Twin Resources notes a final
utilization review decision with supporting medical opinions is attached. In describing the nature of the dispute, Twin
Resources stated, in part, as follows:
The official record from the prior
litigation is absent any mention of herniated disc at any cervical level. Defendant/Employer has been billed by Plaintiff
and Dr. David Weinsweig for an anterior cervical discectomy and fusion C4-5 and
probably C3-4. These conditions are not
work-related and not covered under the open medical obligation of the
Defendant/Employer for the October 15, 2004 work accident which involved neck
and low back strains only. Also attached
is an utilization review of Dr. Richard Mortara, Index No. 3024. His report establishes that the proposed
cervical fusion surgery is not reasonable and necessary for the cure and/or
relief of Plaintiff’s work-related injury.
Relief from liability for this medical billing is respectfully
requested.
Among the documents
attached to the Form 112 are the August 2, 2011, “Utilization Review Physician
Pre-Certification Determination” of Dr. Richard H. Mortara and the “Utilization
Review Notice of Denial.” Twin Resources
also attached numerous records from the Spine and Pain Center, the March 10,
2011, “MRI Cervical Spine WO Contrast,” report, and the March 10, 2011, “MRI
Lumbar Spine WO Contrast” report. Also
attached is the July 27, 2011, letter of Dr. Weinsweig to Dr. Lon Lafferty.
On September 28, 2011, CALJ Overfield entered the following
order:
This
matter comes before the undersigned Chief Administrative Law Judge (CALJ) upon
the Frankfort Motion Docket for consideration of a motion to reopen and Form
112, medical fee dispute. Therein, the
Defendant Employer is seeking to reopen Plaintiff’s claim to resolve a dispute
regarding the compensability of Plaintiff’s medical treatment, specifically treatment
rendered or to be rendered by David Weinsweig, M.D. Therefore, being otherwise duly and
sufficiently advised, IT IS HEREBY
ORDERED as follows:
1. David Weinsweig, M.D. is JOINED as a
party to this medical fee dispute in order to have the opportunity to present
proof regarding the compensability of the contested medical expenses or
proposed procedure.
2. Defendant Employer has made a prima facie showing for reopening and
the motion to reopen is SUSTAINED
and the claim is assigned to the CALJ.
3. Proof taking for all parties shall
commence as of the date of this notice and shall extend for fifteen (15) days, followed by thirty (30) days for Plaintiff and Dr.
Weinsweig only, and fifteen (15) days
thereafter for rebuttal by Defendant Employer.
All evidence must include a certificate of service stating that a copy
of the evidence has been provided to all parties. The evidence submitted with
the motion to reopen and/or the Form 112 shall not be considered unless notice
is given by Defendant Employer of its intent to rely on the evidence for
support of its position in this medical fee dispute.
4. If no evidence is filed by Plaintiff
or Dr. Weinsweig this matter may be submitted on the record to the CALJ and may
result in this dispute being resolved based upon the pleadings and evidence in
record.
FAILURE
OF THE CLAIMANT OR JOINED PROVIDER TO FILE EVIDENCE IN RESPONSE TO THE PROOF
SUBMITTED IN SUPPORT OF THE MEDICAL FEE DISPUTE BY THE END OF THE PROOF
DEADLINES MAY RESULT IN A FINDING THAT THE CHALLENGED TREATMENT IS NOT
COMPENSABLE.
(emphasis in original).
After no evidence or response was submitted by Workman or
Dr. Weinsweig, on December 12, 2011, the CALJ entered the following order:
This
matter comes before the Chief Administrative Law Judge (CALJ) upon the
Frankfort Motion Docket for consideration of a motion by the Defendant Employer
to contest certain medical expenses pursuant to K.R.S. 342.020. The motion was supported by the report of
Richard Mortara, M.D., who opined that the contested medical treatment is not
reasonable and necessary for the cure and relief from the effects of
Plaintiff’s work-related injury. An
order rendered on September 28, 2011 granted the Plaintiff and the joined
medical provider forty-five (45) days to submit evidence and noted that failure
to do so many result in a summary resolution of the medical fee dispute. No evidence or any other type of response was
filed by the Plaintiff or the joined medical provider. The CALJ having reviewed the pleadings and
being fully and sufficiently advised thereby,
IT IS THEREFORE ORDERED as follows:
1. Defendant Employer has established a prima facie showing to establish the basis for reopening and the
motion to reopen is GRANTED.
2.
The contested medical expenses are, based on the evidence and pleadings in the
record, unreasonable and/or unnecessary for treatment of Plaintiff’s work-related
condition pursuant to K.R.S. 342.020.
Further, said expenses were timely challenged pursuant to Phillip Morris, Inc. v. Poynter,
Ky., 786 SW2d 124 (1990).
Therefore,
IT IS HEREBY ORDERED that the
medical fee dispute is RESOLVED in
favor of the Defendant Employer.
Defendant Employer is relieved from the responsibility of payment of the
contested medical expenses and further is relieved from the responsibility of
payment of any similar medical expenses for treatment of the same condition by
the same medical provider.
No petition for
reconsideration was filed and on January 12, 2012, Workman filed a notice of
appeal.
On appeal, Workman cites to the various medical records in
the record arguing Dr. Mortara’s Utilization Review is incorrect on its face
and should not have been the basis for the denial of the proposed medical
treatment. Workman argues Dr. Mortara’s
medical opinion is flawed on its face and clearly incorrect based on the
medical records submitted with the motion to reopen. Those records show that despite Dr. Mortara’s
assertion conservative treatment had not been initiated, Workman had been
undergoing conservative treatment for months prior to the surgical
request. Workman maintains the MRI
clearly indicates “multiple level involvement.”
Therefore, Workman argues based on the mistakes in Dr. Mortara’s report,
the ALJ erroneously relied on Dr. Mortara’s report in finding in favor of Twin
Resources. Workman argues he is entitled
to an award of the appropriate medical benefits for the treatment and cure of
his cervical condition, including the proposed fusion surgery.
Because we believe the CALJ’s orders clearly violate the Kentucky
Supreme Court’s holding in Crawford & Co. v. Wright, 284 S.W.3d 136
(Ky. 2009), we vacate the CALJ’s December 12, 2011, order and numerical
paragraphs three and four of the CALJ’s September 28, 2011, order.
In Crawford & Co. v. Wright,
supra, Crawford & Co., the employer’s third-party insurance
adjuster, had filed a post-award medical dispute. An Administrative Law Judge (“ALJ”) had
vacated the order of the CALJ which “reopened the underlying the claim for
additional proof to be taken and the merits in dispute adjudicated.” In vacating the order, the ALJ considered
only the evidence Crawford submitted with the Form 112 and determined Crawford
had no responsibility for future medical treatment of Wright’s knee problem and
also denied a petition for reconsideration.
This Board reversed and remanded the matter “for proof to be completed
and the merits considered.” The Court of
Appeals affirmed this Board, and the Supreme Court affirmed the Court of
Appeals. In so doing, the Supreme Court
stated:
We affirm. Although
803 KAR 25:012, § 1(6)(c) permits a motion to reopen to contest medical
expenses to be decided summarily on the pleadings, its purpose is not to enable
the second step of the reopening process to be short-circuited if the worker
fails to respond within 20 days. It simply permits a motion that is not
supported with an adequate prima facie showing to be denied summarily
but a motion that is supported with the required showing to be assigned for
further proof time and an adjudication of the merits.
After discussing the facts of the
case, the Supreme Court further held as follows:
The courts
afford an administrative agency’s construction of its own regulation great
weight when determining the regulation’s meaning. We find the Board’s interpretation of the
disputed regulations to be reasonable.
Moreover, we agree with its ultimate conclusion. [Footnote omitted]
The party
responsible for paying post-award medical expenses has the burden of contesting
a particular expense by filing a timely motion to reopen and proving it to be
non-compensable. Thus, 803 KAR
25:012, § 6 requires both a motion to reopen and Form 112 to be filed in a
post-award medical dispute. Reopening a final workers\' compensation award is a
two-step process. The first step
involves the filing of a motion to reopen together with a prima facie showing of a reasonable possibility that the movant
will be able to prevail on the merits. Only if the movant makes the required
showing will the adversary be put to the expense of re-litigating or will
further proof be authorized. [Footnotes omitted]
Drs. Scott
and David Watkins, who provided medical treatment for the effects of the
claimant’s injury, recommended an orthopedic consultation. As the party responsible for paying medical
expenses regarding the injury, Crawford had the burden to contest them in a
timely manner and to prove in the subsequent reopening proceeding that they
were unreasonable and unnecessary for the injury’s effects. Crawford filed a motion to reopen together
with prima facie evidence although it
failed to comply with 803 KAR 25:010, § 4(6)(a)7 and perhaps also with 803 KAR
25:012, § 1(6)(b) because it failed to serve the claimant’s counsel of record.
Despite
Crawford’s assertion to the contrary, 803 KAR 25:010, § 4(6)(c)2 does not
require a response to a motion to reopen. It provides that “[a]ny response
shall be filed within twenty (20) days of filing the motion.” Medical
expenses that a worker submits are presumed to be compensable unless the
employer challenges them in a timely manner and proves ultimately that they are
not. Although 803 KAR 25:012, §
1(6)(c) states that a motion to reopen to contest medical expenses may be
decided summarily on the pleadings, its purpose is not to permit the second
step of the reopening process to be short-circuited if the worker fails to
respond to the motion within 20 days.
803 KAR 25:012, § 1(6)(c) simply permits a motion that is not supported with an
adequate prima facie showing to be denied summarily but a motion that is
supported with the required showing to be assigned to an ALJ for further proof
time and an adjudication of the merits. [Footnotes omitted]
Based on the holding in Crawford
& Co. v. Wright, supra, we conclude once the CALJ established
Twin Resources made a prima facie
showing in support of reopening, the matter should have been assigned to an ALJ
for further proof time and an adjudication on the merits. The September 28, 2011, order should not have
contained numerical paragraphs three and four since these paragraphs are not in
conformity with the Supreme Court’s holding in Crawford & Co. v. Wright, supra,
and 803 KAR 25:012(6)(c). Crawford
& Co. v. Wright, supra, prohibits the CALJ from assigning the
matter to himself, ordering “proof taking for all parties shall commence” as of
the date of the order, and granting Workman and Dr. Weinsweig forty-five days
to submit proof and Twin Resources fifteen days for rebuttal.
It certainly appears the CALJ retained
control of the matter and established an abbreviated proof schedule to see if
Workman and Dr. Weinsweig would file evidence or a response to Twin Resources’ motion. The CALJ did not have the authority to order
that if no evidence is filed by Workman or Dr. Weinsweig, the matter would be
submitted on the record and may result in the dispute being resolved based on
the evidence in the record. We conclude
the CALJ’s order was an attempt to short circuit the holding in Crawford
& Co. v. Wright, supra. The
CALJ entered an order determining Twin Resources had made a prima facie showing for reopening and
then attempted to resolve the medical fee dispute in contravention of the
holding in Crawford & Co. v. Wright, supra. In Crawford & Co. the Supreme
Court instructed that once the motion to reopen is made with the required prima facie showing, the matter is to be
assigned to an ALJ for further proof time and an adjudication of the
merits. Therefore, once the CALJ
determined a prima facie showing had
been made, the provisions of 803 KAR 25:010 Sections eight through eighteen are
applicable and the parties are entitled to conduct discovery, introduce
evidence, attend a Benefit Review Conference (“BRC”), and have a hearing.
This is consistent with 803 KAR
25:012(6)(a)(b)(c) which reads as follows:
(6) Following resolution of a
workers\' compensation claim by final order, a motion to reopen pursuant to 803
KAR 25:010, Section 4(6), shall be filed in addition to the Form 112.
(a) Unless utilization review has
been initiated, the motion to reopen and Form 112 shall be filed within thirty
(30) days following receipt of a complete statement for services pursuant to
803 KAR 25:096.
(b) The motion to reopen and Form
112 shall be served on the parties, upon the employee, even if represented by
counsel, and upon the medical providers whose services or charges are at issue.
If appropriate, the pleadings shall also be accompanied by a motion to join the
medical provider as a party.
(c) This dispute shall be
assigned to the Frankfort motion docket, where it shall be either summarily
decided upon the pleadings, or assigned to an administrative law judge for
further proof time and final resolution.
Section
6(a) does not permit the CALJ to retain jurisdiction of the matter and unilaterally
set an abbreviated proof schedule.
Significantly, after noting no evidence or other type of response was
filed by Workman or Dr. Weinsweig, the December 12, 2011, order again ordered
there had been a prima facie showing
to establish the basis for reopening and summarily ruled in Twin Resources’
favor. This repetitive finding buttresses
our conclusion the September 28, 2011, order was intended to require Dr.
Weinsweig and Workman to file evidence or responses to the motion to reopen. As pointed out in Crawford & Co. v.
Wright, supra, no response is required to the motion to reopen. The CALJ must make a determination as to
whether a prima facie showing has
been made and, if so, the matter should be assigned to an ALJ for further proof-taking.
That said, contrary to Twin Resources’
assertions we note Dr. Mortara did not state that “while [Workman] reports
chronic neck and back pain the MRI scan did not show any specific abnormality
at C3-4 or C4-5 where the request for anterior cervical diskectomy and fusion was
targeted.” Dr. Mortara stated as
follows:
The patient has had prior
problems of chronic neck and back pain.
The records do not indicate a recent period of conservative therapy for
his neck and epidural steroid injections, etc.
In addition, the MRI scan shows multiple levels of pathology. The request is for a C4-5 anterior cervical
discectomy and fusion and possible C3-4. The actual medical records indicate
that there are no multiple levels and because there is a lack of correlation with
the neuroimaging study and the exam, it is impossible to know which is the
appropriate level to operate on based on the information provided. I suggest that the patient have conservative
therapy for his neck and if he fails, possibly consider selective nerve root
block to see if they would provide relief and then possibly consider surgery.
What
is omitted from Twin Resources’ motion to reopen is Dr. Mortara’s suggestion
Workman have conservative therapy for his neck.
If this fails, Dr. Mortara suggested Workman “possibly consider
selective nerve root block” to see if the procedure provided relief; after
that, then possibly consider surgery.
While Dr. Mortara stated that at the present time Workman does not meet
the usual standard guidelines as seen in Milliman Care Guidelines for anterior
cervical fusion as well as the ODG Guidelines, he did not express the opinion
surgery, at some point, would not be reasonable and necessary treatment of and
causally related to the work injury.
The reason Dr. Mortara denied the surgery
was because, at that time, Workman did not meet the “usual standard guidelines
as seen in Milliman Care Guidelines for anterior cervical fusion as well as the
ODG Guidelines.” Dr. Mortara did not set
out or explain the guidelines to which he was referring.
Assuming, arguendo, the CALJ had the authority to order a makeshift proof schedule,
the opinion of Dr. Mortara did not entitle Twin Resources to summary relief as granted
by the CALJ. Dr. Mortara’s report
clearly establishes that surgery, at some point, may be a consideration. Consequently, we believe the CALJ’s December
12, 2011, order was clearly erroneous and an abuse of discretion.
So that there is no confusion in the
future, once the CALJ determines the party filing the motion to reopen and the
Form 112 has made a prima facie
showing in support of its motion to reopen, the CALJ is only authorized to sustain
the motion and then assign the matter to an ALJ for further proof time and an
adjudication of the merits. Crawford
& Co. v. Wright, supra, at 141.
The CALJ is to do no more.
In the case sub judice, after determining Twin Resources had made a prima facie showing sufficient to merit
reopening the claim to resolve the medical fee dispute, the CALJ could not then
set up his own makeshift proof schedule which required Workman and Dr.
Weinsweig to submit proof in contravention of that introduced by Twin Resources
in its motion to reopen. Clearly, the
action of the CALJ required Workman and Dr. Weinsweig to respond to the motion
to reopen. The CALJ impermissibly revisited
Twin Resource’s motion to reopen and summarily decided the medical fee dispute
on the basis of Workman’s and Dr. Weinsweig’s failure to file a response to the
motion to reopen.
Accordingly, the CALJ’s December 12,
2011, order and numerical paragraphs three and four of the CALJ’s September 28,
2011, order are VACATED, and this
matter is REMANDED to the CALJ for
entry of an order on Twin Resources’ motion to reopen and Form 112 consistent
with the views expressed in this opinion.
MEMBER,
SMITH, CONCURS.
CHAIRMAN, ALVEY, DISSENTS AND FILES A
SEPARATE OPINION.
ALVEY,
Chairman.
I respectfully dissent from the opinion
rendered by the majority. This is not
the same situation as that set forth in Crawford & Co. v. Wright,
284 S.W.3d 136 (Ky. 2009).
It is well established the
procedure for reopening a prior workers’ compensation claim pursuant to KRS
342.125 is a two-step process.
Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 216 (
The
burden during the initial step is on the moving party and requires that party
to establish the grounds for which the reopening is sought under either KRS
342.125(1) or (3). Jude v. Cubbage, 251
S.W.2d 584 (
In Crawford
& Co. v. Wright, supra,
the Kentucky Supreme Court held the same two-step process applies to reopening
involving post-award medical disputes brought pursuant to KRS 342.125(3). The Court in Crawford & Co.
specifically instructed:
Although 803 KAR 25:012, § 1(6)(c) permits a motion
to reopen to contest medical expenses to be decided summarily on the pleadings,
its purpose is not to enable the second step of the reopening process to be
short-circuited if the worker fails to respond within 20 days. It simply
permits a motion that is not supported with an adequate prima facie
showing to be denied summarily but a motion that is supported with the required
showing to be assigned for further proof time and an adjudication of the
merits.
The party responsible for paying post-award medical
expenses has the burden of contesting a particular expense by filing a timely
motion to reopen and proving it to be non-compensable. Thus, 803 KAR 25:012, §
6 requires both a motion to reopen and Form 112 to be filed in a post-award
medical dispute. Reopening a final workers\' compensation award is a two-step
process. The first step involves the filing of a motion to reopen together with
a prima facie showing of a reasonable
possibility that the movant will be able to prevail on the merits. Only if the
movant makes the required showing will the adversary be put to the expense of
re-litigating or will further proof be authorized. [Footnotes omitted.]
. . . 803 KAR 25:010, § 4(6)(c)2 does not require a
response to a motion to reopen. It provides that “[a]ny response shall be filed
within twenty (20) days of filing the motion.” Medical expenses that a worker
submits are presumed to be compensable unless the employer challenges them in a
timely manner and proves ultimately that they are not. Although 803 KAR 25:012,
§ 1(6)(c) states that a motion to reopen to contest medical expenses may be
decided summarily on the pleadings, its purpose is not to permit the second
step of the reopening process to be short-circuited if the worker fails to
respond to the motion within 20 days. 803 KAR 25:012, § 1(6)(c) simply permits
a motion that is not supported with an adequate prima facie showing to
be denied summarily but a motion that is supported with the required showing to
be assigned to an ALJ for further proof time and an adjudication of the merits.
[Footnotes omitted.]
In this instance, the Chief
Administrative Law Judge (“CALJ”) found Twin Resources, LLC, met the
requirements for reopening the claim. In an order dated September 28, 2011, the
CALJ ordered Dr. Weinsweig be joined as a party and ordered the claim reopened. The CALJ ordered proof taking for all parties
to commence on September 28, 2011, “and shall extend for fifteen (15) days,
followed by thirty (30) days for Plaintiff and Dr. Weinsweig only, and fifteen
days (15) days thereafter for rebuttal evidence by Defendant Employer.” The CALJ warned “if no evidence is filed by
the Plaintiff or Dr. Weinsweig this matter may be submitted on the record to
the CALJ and may result in this dispute being resolved based upon the pleadings
and evidence of record.” Neither Workman
nor Dr. Weinsweig filed any evidence regarding the medical dispute before the
ALJ, nor did they otherwise respond.
803 KAR 25:012(6)(c) states as
follows:
Following the resolution of
a workers’ compensation claim by final order, a motion to reopen pursuant to
803 KAR 25:010, Section 4(6), shall be filed in addition to the Form 112.
This dispute shall be
assigned to the Frankfort motion docket, where it shall be either summarily
decided upon the pleadings, or assigned to an administrative law judge for further
proof time and resolution.
The CALJ satisfied the requirements
set forth in the applicable administrative regulation, previous opinions from
this Board, and the directive of the Kentucky Supreme Court in Crawford
& Co., supra. The two-part process was observed. The claim
was reopened, and a proof schedule was issued.
Contrary to the opinion of the majority, no specific guidance is set
forth in 803 KAR 25:012 regarding how much proof time is to be afforded to the
parties. The proof time provided by the
CALJ was reasonable, and neither Workman nor Dr. Weinsweig submitted any
evidence or responded in any other manner.
For purposes of KRS Chapter 342, it has long been accepted the ALJ has the authority to control the taking and presentation of proof in a workers’ compensation proceeding in order to facilitate the speedy resolution of the claim and to determine all disputes in a summary manner. Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d 283 (Ky. 2005); Yocum v. Butcher, 551 S.W.2d 841 (Ky. App. 1977); Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 1991); Searcy v. Three Point Coal Co., 134 S.W.2d 228, 231 (Ky. 1939). Since no evidence was submitted during the applicable proof time, the CALJ did not err in exercising his discretion in finding in favor of Twin Resources, LLC, and I would affirm.
COUNSEL FOR PETITIONER:
HON GRETCHEN R NUNN
128 SHOPPERS PATH
PRESTONSBURG KY 41653
COUNSEL FOR RESPONDENT:
HON W BARRY LEWIS
P O BOX 800
HAZARD KY 41702
CHIEF ADIMINISTRATIVE LAW JUDGE:
HON J LANDON OVERFIELD
657 CHAMBERLIN AVE
FRANKFORT KY 40601
