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October 1, 2008 06-92209

OPINION ENTERED: October 1, 2008

CLAIM NO. 06-92209

ANDRE MULLIGAN PETITIONER

VS. APPEAL FROM HON. JAMES KERR,

ADMINISTRATIVE LAW JUDGE

MCDONALDS

and HON. JAMES KERR,

ADMINISTRATIVE LAW JUDGE RESPONDENTS

AFFIRMING

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BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.

GARDNER, Chairman. In a March 25, 2008 decision, Hon. James L. Kerr, Administrative Law Judge (“ALJ”) rejected Andre Mulligan’s (“Mulligan”) claim for permanent partial disability benefits against McDonalds. The ALJ limited Mulligan’s award to a period of temporary total disability and medical benefits. Additionally, the ALJ concluded Mulligan’s testimony concerning his physical limitations and his ability to earn an income post-injury amounted to perjury. The ALJ: 1) imposed sanctions against Mulligan pursuant to KRS 342.310 and 2) referred his claim to the Department of Insurance Fraud Investigation Unit. On appeal, Mulligan argues the ALJ erred as a matter of law by reopening proof time to allow the introduction of post-hearing evidence. Mulligan also asserts a portion of the medical evidence the ALJ found persuasive was improperly introduced after McDonalds’ proof time had expired. Alternatively, he contends, relying on Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), this medical evidence was not substantial evidence. Because we believe the ALJ did not abuse his discretion by reopening proof time following the hearing and because any objection to the medical evidence was specifically waived at the final hearing, we affirm.

In the Application for Resolution of Injury Claim, Form 101, Mulligan alleged he was injured on March 8, 2006, when he slipped and fell at work. At the time of the accident, Mulligan was twenty-five years of age and a college graduate. After the fall, he was transported to the University of Louisville Emergency Room by ambulance, where he was initially diagnosed with an acute lumbar and thoracic strain, prescribed medication and discharged. Mulligan sought treatment two days later at St. Mary and Elizabeth Hospital, where he underwent a physical examination and x-rays were taken. The diagnosis at that time was an acute herniated disc at L5-S1. Mulligan came under the care of Dr. Steven Reiss, who in a March 16, 2006 report, noted a CT scan did not reveal any severe abnormalities other than a bulging disc in the lower lumbar spine. Dr. Reiss’s impression was that Mulligan sustained a lumbar ligamentous and muscular strain with a lumbar disc herniation. Dr. Reiss ordered physical therapy, followed by an MRI. An April 13, 2006 MRI revealed L5-S1 disc dehydration with mild protrusion and bilateral foraminal and mild lateral stenosis. In a May 2, 2006, report, Dr. Reiss recorded that Mulligan had decided to see Dr. Rodney Chou for rehabilitation. Dr. Reiss believed Mulligan could return to work at any time with restrictions of lifting ten pounds or less and no bending. One week later, Dr. Reiss stated there was no anatomic or physiologic reason why Mulligan could not return to work “within the quite severe restrictions” previously imposed. On June 26, 2006, Mulligan presented to Dr. Reiss, complaining of pain. Again, Dr. Reiss believed Mulligan could return to work.

A second MRI performed on November 6, 2007 was interpreted by Dr. Richard Karrel as revealing a central L5-S1 herniated nucleus pulposus and mild bulging disc at L4-L5. Dr. Karrell explained “[t]he history indicates the patient having sustained back pain secondary to herniation. It is clear from the history and physical examination that the pain and injury the patient has suffered was directly related to the fall that occurred on 03/08/07 [sic].”

Mulligan also relied on the independent medical evaluation performed by Dr. Jules J. Barefoot on November 9, 2007. After receiving a history of the injury, performing a physical examination and reviewing medical records, Dr. Barefoot diagnosed L5-S1 disc protrusion. He placed Mulligan in a DRE lumbar Category II and assigned a 6% whole person impairment rating. Dr. Barefoot believed Mulligan would continue to have significant problems with chronic pain and limited mobility in his lumbar spine that would limit his ability to repetitively bend, squat, crawl, climb, and lift or carry heavy loads.

The ALJ convened a benefit review conference (“BRC”) on January 9, 2008. At the time of the BRC, McDonalds had not introduced any evidence, but apparently at its request, was granted the opportunity to depose Mulligan prior to the scheduled January 25, 2008 final hearing. On January 17, 2008, Mulligan was deposed and testified he was a college athlete and a graduate with degrees in political science and history. He stated he had worked for McDonalds for over a year prior to his injury, while still in school. He explained that on the morning of the accident he was setting up for breakfast and upon retrieving frozen pies from the freezer, he slipped and fell straight back on his back and shoulder. After being seen at the University of Louisville, he was taken off work for three days, but the following day he was in severe pain and it was difficult for him to move. He stated he could not stand in the shower, could not walk, and the next day his mother took him to the hospital where he came under the care of Dr. Reiss who prescribed medication and physical therapy.

Additional conservative treatment by pain management physicians included a series of epidural and trigger point injections. Mulligan stated that none of the treatments provided any relief and he was physically unable to perform a functional capacity evaluation because of the pain. Mulligan testified that although he is now able to sit and walk, he is in pain, has difficulty urinating and has numbness in his toes and feet. He stated that his mother does most of his shopping because he has difficulty walking and can’t reach down and pick up a gallon of milk or do household chores. He explained that he must sit down while taking a shower because he cannot stand too long or bend to get soap. Mulligan attempted to return to work for McDonalds but could not complete a shift. Although he is actively seeking employment, he has been unable to find a job because of his restrictions.

During deposition, counsel for McDonalds asked Mulligan if he had treated with Dr. Rodney Chou, and Mulligan responded that he had seen him on several occasions. At that point, an October 18, 2006 medical report from Dr. Chou was tendered as an exhibit. That report revealed Mulligan had been treated by Dr. Chou since May 23, 2006. Mulligan was diagnosed with a lumbar strain and had been treated conservatively with trigger point injections, medications, and epidural steroid injections. Dr. Chou reviewed a functional capacity evaluation which placed Mulligan in a sedentary work category, but stated:

There were many inconsistencies noted during the examination including 5 of 5 Waddell’s test, 2 of the 4 Bell Curves were self-limited. It was noted that the patient had very sufficient and nice muscle mass with no atrophy reported. At this point, I believe that the patient has met maximum medical improvement. He does not have a very good effort during the functional capacity evaluation. I would place the patient back to work without restrictions. I would also say that the patient has no impairment according to the Fifth Edition of the Guides to the Evaluation of Permanent Impairment as there are no objective signs.

Mulligan again testified at the final hearing the following week. As a preliminary matter, the ALJ directly addressed and resolved, by agreement, Mulligan’s current appellate argument that Dr. Chou’s report was not timely introduced and should have been stricken from the record. Before Mulligan testified, the following exchange took place between the ALJ and counsel for Mulligan:

JUDGE KERR: . . . There’s one wrinkle to that, I guess, and that’s with Mr. Mullilgan’s deposition. Ms. Lee tendered a report of Dr. Chou, and I assume that’s C-h-o-u, and when she did that, that you objected. Since that time my understanding was that there was a discussion between Mr. House [sic] and Ms. Lee in which Mr. House [sic] stated that it would be permissible to file that provided you were given sufficient rebuttal time. And, so - - or at least he requested rebuttal time if I allowed him to file.

MR. PAIGE: That’s correct.

JUDGE KERR: Is that a better way to put it?

MR. PAIGE: That’s a better way to put it.

JUDGE KERR: Okay; and so what I’m going to do is allow her to file Dr. Chou’s report, and then give you twenty days rebuttal effective today. We also - - is that - - is that agreeable?

MR. PAIGE: That’s agreeable.

Thus, we conclude Dr. Chou’s report was admitted into evidence by agreement. Mulligan’s argument to the contrary is disingenuous, and any objection to the medical evidence was waived.

Mulligan was then administered the oath and was examined. He testified that as a manager of McDonalds, he was required to help unload trucks, sweep, pick up boxes weighing up to forty pounds, he had to be able to lift at least eighty pounds and, at times, he was required to lift over 100 pounds. He stated that in a nine hour shift, which he regularly worked, he was on his feet probably eight hours and forty-five minutes. He testified an attempt to return to work was unsuccessful because of pain. Mulligan stated he cannot engage in sporting activities with his son and had to move from an apartment that required walking up three flights of stairs. He again testified he cannot take showers, he has pain when he urinates, and his groin is constantly hurting. Mulligan stated he received temporary total disability benefits from March 16, 2006 through October 20, 2006, but he has earned no income since that time and has depleted his savings. Following the final hearing, Mulligan, in accordance with the pre-hearing agreement, filed a supplemental report from Dr. Barefoot who, relying on the November 6, 2007 MRI which revealed a herniated disc at L5-S1, stood by his original finding that Mulligan qualified for a DRE lumbar Category II and assigned a 6% whole person impairment rating as a result of the March 2006 work-related injury.

On February 19, 2008, before the ALJ rendered a decision, McDonalds filed an emergency motion to reopen discovery and for an extension of time to file its brief. McDonalds alleged that Mulligan had committed fraud and lied under oath about his physical limitations and pain. McDonalds alleged it was in possession of newly discovered evidence that directly contradicted Mulligan’s testimony. McDonalds asserted that on February 15, 2008, Mulligan “performed an x-rated dance routine in which he stripped down to absolutely nothing!” McDonalds requested an extension of time to file its brief until additional discovery had been completed. Mulligan objected, arguing the emergency motion was blatantly prejudicial and a gross violation of his civil and statutory rights. Mulligan contended that most of the materials attached to the motion were irrelevant, irresponsible, and unprofessional. Mulligan argued the ALJ is required to make a decision within sixty days of the hearing unless an extension is mutually agreed to by the parties and that only contested issues should be the subject of proceedings beyond the BRC. Mulligan asserted there is no provision in KRS Chapter 342 for an emergency motion and McDonalds was required to wait its opportunity to reopen under KRS 342.125.

In a February 28, 2008 order, the ALJ conceded that McDonalds was not seeking to reopen its claim, but only to file additional proof. The ALJ stated:

While this matter is post hearing, the Administrative Law Judge believes that reopening proof is within judicial discretion but will only do so if the interests of both parties are protected and each party is given due process. To this extent, the plaintiff’s motion to strike is granted and the materials filed in support of the emergency motion to reopen discovery are hereby stricken from the record. However, an extension of time will be granted so that the parties may have a chance to supplement their cases and positions in light of the newly discovered evidence.

The ALJ gave McDonalds four days to complete its proof and provided Mulligan seven days for rebuttal. The ALJ also ordered that the parties be prepared to address KRS 342.310 (sanctions) and KRS 342.335 (fraud) in the proof taking and briefing processes.

The proof introduced following the hearing primarily focused on Mulligan’s website and male revue business known as Romeo Entertainment. That proof principally comes by way of a second deposition of Mulligan; the deposition of William Green, Mulligan’s half-brother; and, Josephine Guy, a private investigator who videotaped a February 16, 2008 male dance revue promoted by Romeo Entertainment, in which Mulligan performed. The evidence is succinctly summarized by the ALJ as follows:

[Mulligan] acknowledged that he had done modeling at a club called Villa Fontana since he injured his back. He believed that was in the summer of 2007 and he was only required to walk around for about 35 minutes with his shirt off. The plaintiff stated he last worked out at a gym about eight months ago. He did state that he could continue to do push-ups as long as he did not put pressure on his back. Plaintiff has two web sites, one for his employment as a comedian and a second for Romeo Entertainment. The plaintiff described financial difficulties within the past year including a threat of eviction. His tax return was admitted indicating a negative adjusted gross income in 2007. Plaintiff described various activities to make money including Romeo Entertainment. He described selling t-shirts and food and plaintiff also has a cleaning business. He acknowledged that Romeo Entertainment includes male review shows.

As to the male review shows, plaintiff had his first in May or June of 2007 in Lexington and he served as a host. He first danced in a show in November of 2007. He believes that there have been four shows so far. His brother has assisted with the financing. He recalled meeting Josephine Guy at a show and he told her she could not take pictures. He also denied offering her a private showing. Plaintiff stated he has danced at only one show. However, when confronted, he recalled that he had also done a cha-cha line at the November show. He stated that he was walking with a limp at the show where Ms. Guy was. He estimated he was on his feet approximately 45 minutes that night. Plaintiff further testified to difficulty getting an erection due to pain and he had to use a device to assist him. Plaintiff reviewed and commented on the video. He stated that during his performance, his back was hurting and his legs were tingling. He also described back stiffness. Plaintiff also admitted to being in two plays presently and that he participated in one in October of 2007. He also admitted to stripping in seven shows all together. He also appears in comedy shows on open mic nights.

. . . .

The plaintiff presented the testimony of William Green by deposition taken on March 10, 2008. Mr. Green is plaintiff’s half brother and he financed Romeo Entertainment. He estimated that they had had four or five male reviews. Plaintiff did not dance at the January review because he stated that if he danced every time, the audience would be tired of seeing him. He is aware that his brother states that he has back problems; he believes plaintiff’s back does hurt but that he dances because he has to do so financially. He did recall plaintiff doing a bachelorette party in an apartment off Newburg Road. He stated the two of them split $2500.00 as a result of the last show. He reviewed the video tape of the February 15th concert and had no previous knowledge that a lady was spanking his brother and that he was ‘humping up and down.’

. . . .

The defendant-employer presented the testimony of Jo Guy by deposition taken March 4, 2008. Ms. Guy is a private investigator retained by the defendant-employer. She was contacted to attend a male review to investigate a claimant who was perhaps running a business. She reviewed the plaintiff’s my space company website so that she would recognize the plaintiff. The investigator arranged to buy tickets from plaintiff’s brother. She also spoke to the plaintiff about a private bachelorette party and he stated he would be unable to do so as he was leaving for New York for a modeling opportunity. The witness arranged to have four friends accompany her to the review. She was advised that she would not be allowed to videotape that night. The witness testified that alcoholic beverages were available. Plaintiff was the master of ceremonies and he also oversaw all of the functions including seating arrangements, helping with the sound system and other administrative duties. At one point, plaintiff came to the table and asked if anyone was interested in a private review in another room away from the banquet hall. She did not observe plaintiff to have a limp. She did see him pick up coats and he did not appear to be in pain. There were five dancers on the program that evening with plaintiff being last. At one point plaintiff stood in a chair and later he did very wild dancing. Plaintiff appeared to be going up and down on the floor. The plaintiff continued to dance and at one point laid on his back with his legs in the air. Later, plaintiff performed pelvic thrust gyrations with his body. He turned to the wall and then turned around, fully exposing himself. The witness estimated that plaintiff’s dance lasted twenty to thirty minutes. The DVD made by the witness was admitted as an exhibit to the deposition.

The ALJ, following a summary of the lay and medical evidence contained in the record, was persuaded Mulligan’s fall at McDonalds on March 8, 2006 was a traumatic event that resulted in a period of temporary total disability. The ALJ, being more persuaded by the evidence from Drs. Reiss and Chou, awarded a period of temporary total disability benefits and medical benefits. However, relying on the video recording introduced through the testimony of the private investigator, the ALJ concluded Mulligan had engaged in fraud. The ALJ was satisfied that Mulligan’s testimony regarding his complaints of pain and his physical limitations that would reduce him to a sedentary lifestyle was false. The ALJ also noted Mulligan had worked as a model, acted in plays, and had organized shows in which he was the star performer. The ALJ was convinced Mulligan had misrepresented his ability to earn income and had indeed made money despite his testimony to the contrary. The ALJ stated: “[i]t is obvious to the undersigned that the plaintiff has perjured himself repeatedly through two depositions and a hearing.” The ALJ referred the matter to the Department of Insurance Fraud Investigation Unit for further investigation, including investigation of possible perjury charges. The ALJ also concluded that pursuant to KRS 342.310, Mulligan prosecuted his claim without reasonable grounds and expressed his intent to assess costs incurred by McDonalds against Mulligan.

Without resorting to a petition for reconsideration, Mulligan has directly appealed, first arguing the ALJ erred by permitting the introduction of post-hearing evidence. Mulligan does not argue the evidence relied upon by the ALJ does not support the ultimate conclusions, but broadly contends there is no regulatory or statutory authority to reopen proof time post-hearing and, for that reason, any evidence relied upon by the ALJ which was garnered after the hearing, was “prohibited.”

It is well established that an ALJ has broad discretion as fact finder. In that capacity, the ALJ is charged with conducting benefit review conferences and hearings, granting extensions and enlargements of time, setting briefing schedules, supervising the presentation of evidence and in receiving evidence, and making rulings affecting the competency, relevancy, materiality, and admissibility of the evidence. See KRS 342.230. As trier of fact, the ALJ is the gatekeeper and arbiter of the record both procedurally and substantively. Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d 283 (Ky. 2006). As a general proposition, it is not unreasonable for an ALJ to either direct additional proof to be presented or prohibit evidence in order to maintain a reasonable element of due process. Yokom v. Butcher, 551 S.W.2d 841 (Ky.App. 1977); Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 19991); Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939).

Certainly one of the cardinal purposes of the Workers’ Compensation Act is to facilitate the speedy resolutions of claims and 803 KAR 25:010 et. seq., is directed in major part toward that end. KAR Section 13(15) specifically provides: “[u]pon motion with good cause shown, the administrative law judge may order that additional discovery or proof be taken between the benefit review conference and the date of the hearing and may limit the number of witnesses to be presented at the hearing.” While this regulation makes clear provision for the possibility of additional evidence between the time of the BRC and the hearing, it does not specifically preclude the introduction of post-hearing evidence under any or all circumstances. In New Directions Housing Authority v. Walker, 149 S.W.3d 355 (Ky. 2004), the Kentucky Supreme Court again reiterated that an ALJ has broad authority to make exceptions to the designated times for submitting proof where the circumstances warrant. Thus, we reject Mulligan’s contention that proof time post-hearing cannot be granted as a matter of law, and our standard of review is whether the ALJ’s decision constituted an abuse of discretion.

In Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004), the court explained that a decision constitutes an abuse of discretion if it is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Here, with the specter of fraud overarching the proceedings and any possible award, and further considering Mulligan’s limited appellate argument, we cannot say the ALJ’s decision was so unreasonable that it constituted an abuse of discretion. Admittedly, the one week time frame allotted to Mulligan to assemble his rebuttal proof might have been too abbreviated and we agree with Mulligan that he should not have been compelled to scramble to rebut evidence introduced well after the full blown litigation of the claim had already terminated. Nonetheless, Mulligan was able to assemble his proof, did not object to the time frame set by the ALJ or request additional time. Thus, we detect no reversible error.

We also disagree with Mulligan’s argument that the ALJ improperly interjected the contested issues of fraud and unreasonable proceedings and erroneously decided those issues post-hearing. KRS 342.310 explicitly and KRS 342.335 implicitly allows an ALJ to raise issues of unreasonable proceedings or fraud sua sponte, regardless of whether the parties preserve those issues as contested issues at the BRC. The ALJ did not err in advising Mulligan that fraud or unreasonable proceedings would be addressed if the proof so warranted.

Finally, Mulligan argues the ALJ erred in determining the medical testimony of Dr. Chou was the most credible. Mulligan contends Dr. Chou’s October 18, 2006 report is critically deficient since it does not contain the results of either the April 13, 2006 or the November 6, 2007 MRI. Mulligan argues the April 13, 2006 MRI revealed a herniated disc, but there is no indication that Dr. Chou ever reviewed that evidence and his report does not contain enough medical history or diagnostic findings to be considered valid under Cepero v. Fabricated Metals Corp., supra.

Cepero stands for the proposition that a medical opinion addressing causation that is based on a substantially inaccurate or incomplete medical history and unsupported by any other credible evidence cannot constitute substantial evidence. Factually, Cepero is distinguishable because there the injured claimant intentionally misled an evaluating physician whose opinion the ALJ relied on, even though the physician later changed his mind once the correct history was known.

Here, it was established that Dr. Chou was a treating physician and there is no indication that he did not have an accurate history of the accident. While it remains unexplained why all of Dr. Chou’s records were not introduced, Dr. Barefoot’s November report reveals that as early as July 27, 2006 following the April 13, 2006 MRI, Dr. Chou was of the impression that Mulligan had a lumbar herniated disc and recommended a series of lumbar epidural injections. In Dr. Barefoot’s January 2008 supplemental report, he noted a letter from Dr. Chou dated November 16, 2006, in which Dr. Chou stated he did not believe Mulligan had any objective evidence to qualify for a permanent impairment. The fact that a second MRI was obtained in November 2007 does not destroy the substantiality of Dr. Chou’s opinion and the ALJ could reasonably infer that Dr. Chou was aware of the results of the earlier MRI. Mulligan’s arguments go to the weight and credibility of that evidence – a factual issue to be resolved by the fact finder and the fact finder alone.

Mulligan, the party with the burden of proof and risk of non-persuasion was unsuccessful and the question on appeal is whether the evidence is so overwhelming, upon consideration of the record as a whole, as to compel a finding in his favor. Since we are of the opinion that Dr. Chou’s report constitutes substantial evidence, this Board is obliged to affirm the decision of the ALJ, limiting the award to temporary income and medical benefits.

For the foregoing reasons, the opinion and order of the Administrative Law Judge is hereby AFFIRMED.

COWDEN, MEMBER, CONCURS.

STIVERS, MEMBER, CONCURS IN PART, DISSENTS IN PART AND FILES A SEPARATE OPINION.

STIVERS, MEMBER. While I concur with a portion of the Board’s opinion affirming the decision of the ALJ, I respectfully dissent with that portion of the Board’s opinion affirming the ALJ’s award of sanctions pursuant to KRS 342.310. The ALJ held as follows:

23. ...It is obvious to the undersigned that the plaintiff has perjured himself repeatedly through two depositions and a hearing. A determination as to fraud herein would best be left to the Office of Insurance after a proper investigation. Wherefore, the undersigned refers this matter to the Department of Insurance Fraud Investigation Unit for further investigation. In addition, plaintiff’s testimony should be investigated for possible perjury charges.

24. KRS 342.310 allows the Administrative Law Judge to determine the proceedings which have been prosecuted without reasonable ground may make the prosecutor liable for the whole cost of the proceedings. For the reasons stated above, the undersigned finds that the plaintiff has acted unreasonably in prosecuting this matter and the plaintiff shall be responsible for the defendant-employer’s cost incurred herein, to include deposition costs, attorney fees, investigator expenses and all other out of pocket expenses as is contemplated by the statue [sic], for all costs incurred as of August 27, 2007, the date plaintiff filed the application herein.

My reasons are based upon the fact the Administrative Law Judge found Mulligan did, in fact, have a legitimate claim and accordingly awarded him $346.00 per week as temporary total disability benefits from March 9, 2006 through April 27, 2006 with interest. The ALJ also ordered McDonald’s or its insurance carrier to pay for the medical expenses incurred but not limited to providers fees, hospital treatment, surgical care, nurse supplies and appliances as may reasonably be required for the care and relief from the effects of the work-related injury through October 18, 2006, the date of Dr. Chou’s letter finding the plaintiff had no permanent impairment.

A close reading of KRS 342.335 (1) does not support the ALJ’s decision; it reads as follows:

No person shall knowingly file, or permit to be filed, any false or fraudulent claim on his behalf to compensation or other benefits under this chapter, or by fraud, deceit or misrepresentation procure or cause to be made or receive any payments of compensation or other benefits under this chapter to which the recipient is not lawfully entitled, or conspire with, aid, or abet another so to do...

In this case that did not occur. The ALJ concluded in paragraph 20, on page 11, of his opinion as follows:

...Accordingly, the Administrative Law Judge concludes that the event of March 8, 2006 was a traumatic event which resulted in a period of temporary total disability benefits from March 8, 2006 through April 27, 2006 when Dr. Reiss assigned restrictions for the plaintiff and would allow a return to work. However, plaintiff’s claim for permanent occupational disability benefits is disallowed.

The ALJ’s findings conclusively establish Mulligan did not file a fraudulent or false claim. Further, Mulligan did not receive compensation or benefits by fraud, deceit or misrepresentation. He only received that to which he was entitled. Mulligan may have filed a fraudulent claim for permanent partial disability benefits but he did not file a false or fraudulent claim since the ALJ determined Mulligan was entitled to TTD benefits for a period of time and was entitled to medical benefits beyond the period of TTD awarded since he awarded reasonable medical expenses through October 18, 2006. Therefore, I would reverse the ALJ and remand this matter to the ALJ for a determination and award of only the defendant-employer’s cost, expenses and attorney fees incurred as a result of resisting the claim of Mulligan for permanent partial disability benefits. The ALJ’s award of costs, expenses and attorney fees is a windfall to McDonald’s since Mulligan’s claim, in part, was clearly valid. Significantly, McDonald’s did not appeal the ALJ’s determination Mulligan was entitled to a period of TTD and reasonable and necessary medical expenses through October 18, 2006. Therefore, I respectfully dissent to that portion of the Board’s opinion affirming the ALJ’s decision awarding McDonald’s all its attorney fees, expenses and costs related to this litigation.

COUNSEL FOR PETITIONER:

HON JAMES D HOWES

1501 DURRETT LN STE 200

LOUISVILLE KY 40213

COUNSEL FOR RESPONDENT:

HON ERICA A LEE

1400 PNC PLAZA

500 W JEFFERSON ST

LOUISVILLE KY 40202

ADMINISTRATIVE LAW JUDGE:

HON JAMES KERR

SPINDLETOP OFFICE COMPLEX

2780 RESEARCH PARK DR

LEXINGTON KY 40511