Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: June 27, 2014
CLAIM NO. 2012673151
CENTRAL BAPTIST HOSPITAL PETITIONER
VS. APPEAL FROM HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE
MARTY MAY
and HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER, Member. Central Baptist Hospital (“Central Baptist”)
appeals from the September 11, 2013 Opinion and Order, the January 30, 2014
Opinion and Order, the February 6, 2014 Opinion and Order on Reconsideration
and the March 7, 2014 Opinion and Order on Reconsideration rendered by Hon.
William J. Rudloff, Administrative Law Judge (“ALJ”). In the September decision, the ALJ awarded
permanent partial disability benefits enhanced pursuant to KRS
342.730(1)(c)1. In the January 2014
decision, the ALJ declined to enforce a settlement agreement and reaffirmed the
September 2013 decision. On appeal,
Central Baptist argues the ALJ erred in failing to enforce the settlement
agreement. Alternatively, Central
Baptist argues benefits should have been awarded pursuant to KRS 342.730(1)(c)2
or proof time should have been extended to permit cross examination of Drs.
James C. Owen and Frank Burke. For the
reasons set forth herein, we affirm.
Marty May (“May”), a registered nurse
working in a neurosurgical intensive care unit, sustained a back injury on June
30, 2012 while assisting a patient getting out of bed. The parties introduced medical proof at and
following the Benefit Review Conference hearing on June 12, 2013. A week before the final hearing on June 26,
2013, May submitted the reports of two physicians. Central Baptist was unable to depose these
physicians prior to the final hearing.
Accordingly, at the conclusion of the hearing, the ALJ granted both
parties thirty days to complete any additional proof. He further ordered both parties to submit
briefs by July 25, 2013, on which day the case would stand submitted for
decision. Though they also informed the
ALJ that a settlement agreement was being discussed, both parties agreed to
this solution.
Evidently, Central Baptist did not
submit additional proof prior to July 25, 2013 because the parties were
actively negotiating a settlement. In
fact, a proposed agreement was forwarded to May’s counsel on July 24,
2013. The proposed agreement provided
temporary total disability (“TTD”) benefits would be paid from September 25, 2012
to October 22, 2012 and indicated “Non-MCO treatment denied.” May did not accept the terms of the proposed
agreement, and sought a longer period of TTD benefits. May’s counsel sent an email to Central
Baptist’s counsel on August 13, 2013. It
explained May disagreed with the period of TTD in the proposed settlement
agreement, and insisted she be paid TTD until December 20, 2012. After May provided documentation, a revised
agreement was sent to May’s counsel on September 4, 2013. The revised agreement indicated Central
Baptist agreed to pay all reasonable, necessary and related medical expenses
and provided TTD benefits would be paid from September 25, 2012 to October 22,
2012 and from November 16, 2012 to December 23, 2012.
Though he had indicated the case would
stand submitted on July 25, 2013, it is unclear from the record whether either
party informed the ALJ a settlement was being actively negotiated. We do know that, as of July 25, 2013, neither
party had submitted additional proof or a brief. The ALJ rendered an Opinion and Order on
September 11, 2013, finding May sustained an injury to her thoracic spine
entitling her to permanent partial disability benefits based upon an 8%
functional impairment rating. After
performing an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003), the ALJ determined May is unlikely to continue to earn the same or
greater wage for the indefinite future and is entitled to the three
multiplier. He also awarded TTD benefits
from October 8, 2012 through October 22, 2012.
On September 12, 2013, without
knowledge of the ALJ’s decision, May signed the revised agreement. However, she signed the agreement on the
wrong line. On September 13, still without
knowledge of the ALJ’s decision, May returned to her attorney’s office and
signed on the correct line. On neither
of these occasions did she discuss the terms of the revised settlement
agreement with her attorney, who was unexpectedly hospitalized at the time due
to a health emergency. The agreement was
forwarded to the ALJ along with a motion for attorney’s fees, and was approved
on September 16, 2013.
On September 23, 2013, Central Baptist
filed a motion and affidavit to set aside the September 11, 2013 Opinion and
enforce the settlement agreement. The
motion stated the ALJ’s office was informed of the initial agreement. After May insisted on additional TTD, her
counsel provided documentation concerning the time she was off work. A revised agreement was sent to May’s counsel
on September 4, 2013, and he was informed the agreement needed to be in the
ALJ’s office by September 6 pursuant to the ALJ’s instructions. Central Baptist noted there was no indication
May disagreed with the terms of the revised agreement until the ALJ rendered
his Opinion.
On September 25, 2013, Central Baptist
filed a petition for reconsideration of the September 11, 2013 Opinion, arguing
the ALJ did not make sufficient findings of fact regarding the enhancement of
benefits. Central Baptist also argued
that, if the settlement agreement is not enforced, it should be granted
additional proof time to depose Drs. Burke and Owen.
A hearing was held on December 18,
2013 at which time May and her counsel testified. Because he was hospitalized at the time,
May’s counsel was uncertain of the exact dates upon which the revised Form 110
arrived in his office and May signed the agreement. On September 16th, 2013, he had
been released from the hospital and informed May of the ALJ’s opinion. May indicated she wanted to “accept” the
ALJ’s opinion. He informed opposing
counsel of her position on the 17th.
May’s counsel acknowledged the revised Form 110 contained all of the
revisions May had requested. At the time
May signed the agreement, neither she nor her counsel were aware the ALJ had
issued an opinion.
May testified she signed the revised
agreement on the wrong line on September 12th and returned on the 13th
to sign on the correct line. On neither
of these days did she discuss the revised agreement with her attorney, nor did
she read the agreement before signing it.
According to May, she became aware of the ALJ’s opinion on September 15th. On cross-examination, May was asked why she
signed the revised agreement if she did not agree with its terms, as she had
previously testified. After obliquely
implying she wanted the matter finalized, May then offered: “I rejected the
agreement because – how do I put this, because I agreed with the Judge’s
award….which was more money.”
The ALJ issued an Opinion and Order on
January 30, 2014, holding there was no meeting of the minds as to the terms of
the revised Form 110 and therefore no settlement agreement. Accordingly, the ALJ denied the motion to set
aside the September 11, 2013 Opinion and Order and enforce the settlement
agreement. Additionally, he reaffirmed
the September 11, 2013 Opinion.
Central Baptist filed two petitions
for reconsideration, challenging both the September 11, 2013 Opinion and Order
and the January 30, 2014 decision. Both
were denied. On appeal, Central Baptist
first argues the ALJ erred in failing to enforce the revised settlement
agreement. Alternatively, it challenges
the award of benefits pursuant to KRS 342.730(1)(c)2 as unsupported by the
evidence. Finally, it requests
additional proof time to permit cross-examination of two physicians.
We first address the ALJ’s refusal to
enforce the terms of the settlement agreement.
KRS 342.265, states in pertinent part:
(1) If the employee and
employer and special fund or any of them reach an agreement conforming to the
provisions of this chapter in regard to compensation, a memorandum of the
agreement signed by the parties or their representatives shall be filed with
the commissioner, and, if approved by an administrative law judge, shall be enforceable
pursuant to KRS 342.305.
The purpose of the statute is to give
the fact-finder an opportunity to pass upon the terms of compensation
agreements and protect the interests of the worker. Skaggs v. Wood Mosaic Corp., 428
S.W.2d 617 (Ky. 1968). The obvious
policy and purpose of KRS 342.265 is to discourage the making of settlements
except under the protective supervision of the ALJ. Kendrick v. Bailey Vault Co., Inc.,
944 S.W.2d 147 (Ky. App. 1997). In Commercial
Drywall v. Wells, 680 S.W.2d 299 (Ky. App. 1993) the Court of Appeals
stated an ALJ “may look behind the settlement when an agreement appears not to
be in the interest of the worker, provided there is cause to do so.” Accordingly, the ALJ enjoyed the authority to
set aside the settlement agreement, even after it was evidently mistakenly
approved.
Furthermore, the ALJ properly focused
his analysis on whether the revised settlement agreement represented a meeting
of the minds. See Skaggs, 428 S.W.2d at 619 (defining “agreement” as a “mutual understanding”). The determination as to whether a meeting of
the minds occurred is a question of fact.
As such, this Board may only disturb the ALJ’s findings if they are
unsupported by substantial evidence. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Here,
the ALJ stated he based his decision on the testimony of May and her counsel.
Looking at the totality of
evidence presented, many would fairly conclude that May agreed with the terms
of the revised settlement at the time she signed it, and only changed her mind
after learning the ALJ had awarded her more money. She essentially admitted this during her
testimony at the hearing. Nonetheless,
the circumstances concerning the execution of the settlement agreement can
reasonably support a different conclusion.
For this reason, we cannot conclude the ALJ’s factual findings are
devoid of evidentiary basis or entirely unreasonable.
It is undisputed the ALJ
issued the September 11, 2013 Opinion before the settlement agreement was
submitted for approval. Also, it is
uncontroverted May was unable to discuss the revised agreement with her
attorney before she signed it, due to his hospitalization. Finally, May changed her mind about the
settlement agreement after she was afforded the opportunity to discuss the
matter with her attorney. From these
facts, the ALJ concluded May never truly assented to the agreement. The fact her attorney believed an agreement
had been reached is immaterial, as attorneys are without power to bind
their clients. Daugherty v. Runner,
581 S.W.2d 12 (Ky. App. 1978). Under the
circumstances of the case, we conclude the ALJ acted within his authority in
declining to enforce the revised agreement. Square D Co. v. Tipton, 862
S.W.2d 308 (Ky. 1993)(KRS 342.285 grants the ALJ, as fact-finder, the sole
discretion to determine the quality of the evidence and draw reasonable
conclusions therefrom).
In the alternative, Central Baptist
argues benefits should have been awarded pursuant to KRS 342.730(1)(c)2 or
proof time reopened to permit cross-examination of Drs. Owen and Burke. Central Baptist notes May testified at the
hearing that her condition was improving.
Further, Central Baptist contends the records of Drs. Brooks, Owen and
Burke fail to establish May is unlikely to continue to earn an average weekly
wage equal to or exceeding her pre-injury wage, and their reports do not
indicate her condition is likely to worsen.
Finally, Central Baptist asserts it cancelled the depositions of Drs.
Owen and Burke as a result of the settlement and it would be prejudiced by not
having the cross-examinations as part of the record. Accordingly, it requests that if the
agreement is not enforced, the matter should be vacated and remanded with
additional proof time.
The function of the Board in reviewing
an ALJ’s decision is limited to a determination of whether the findings made
are so unreasonable under the evidence that they must be reversed as a matter
of law. Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
The Board, as an appellate tribunal, may not usurp the ALJ’s role as
fact finder by superimposing its own appraisals as to weight and credibility or
by noting other conclusions or reasonable inferences that otherwise could have
been drawn from the evidence. Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Where KRS 342.730(1)(c)1 and (1)(c)2
are both applicable, the ALJ must determine which provision is more
appropriate. As part of that analysis,
the ALJ must determine whether the injured employee is likely to continue
earning a wage which equals or exceeds his or her wages at the time of the
injury for the indefinite future. In Adkins
v. Pike County Board of Education, 141 S.W.3d 387, 390 (Ky. App. 2004), the
Court of Appeals indicated an ALJ must consider a broad range of factors, only
one of which is the ability to perform the current job. The Supreme Court in Adams v. NHC
Healthcare, 199 S.W.3d 163, 168, 169 (Ky. 2006) further elaborated “The
standard for the decision is whether the injury has permanently altered the
worker's ability to earn an income.”
Here, the ALJ determined both the two
and three multipliers are applicable, a conclusion which Central Baptist does
not challenge. He then conducted a Fawbush
analysis and provided an explanation for his determination that the three
multiplier was more appropriate. The ALJ
specifically noted the determination is not based on a claimant’s ability to
continue her current employment.
Ultimately, he determined May was unlikely to continue to earn a wage
equal to or greater than the wage earned at the time of the injury, and that the
injuries have permanently altered her ability to earn an income.
In reaching this conclusion, the ALJ
stated he relied on May’s testimony, and the medical reports of Drs. Brooks,
Owen and Burke. The February 6, 2014
Order on Reconsideration contains a more detailed explanation of the ALJ’s
decision, and we consider it together with the September 11, 2013 Opinion.
May testified she cannot perform
necessary duties of her job involving heavy lifting, such as assisting patients
getting out of bed. She requires
assistance with heavier tasks that are common in nursing positions. She indicated she continues to have
significant pain which requires medication, a TENS unit and physical
therapy. She further testified Dr.
Brooks lifted her restrictions at her request so she could return to work. Dr. Owen agreed with restrictions of no
lifting greater than 25 pounds, no repetitive bending, stooping, or prolonged
sitting, and no prolonged standing or walking.
Based on the totality of the evidence, we cannot say the ALJ’s
determination that the three multiplier is more appropriate is clearly
erroneous.
We also do not believe Central Baptist
is entitled to additional time to develop proof. The ALJ, as fact-finder, 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. See 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). While 803 KAR 25:010, § 13(15) permits an ALJ to order additional discovery or proof between
the benefit review conference and the hearing upon motion with good cause
shown, no regulation anticipates that additional proof will be taken after a
claim has been taken under submission. T.J.
Maxx v. Blagg, 274 S.W.3d 436, 438-439 (Ky. 2008). Moreover, failure to timely assert a right to
rebuttal at any time during a proceeding may result in the loss of that
right. Maxey v. R.R. Donnelley and
Sons Co., 859 S.W.2d 130 (Ky. App. 1993).
In this instance, upon agreement of
the parties, the ALJ ordered all proof to be completed by July 25, 2013. Central Baptist, having undertaken settlement
negotiations, voluntarily elected to forego taking the depositions of Drs. Owen
and Burke. It forwarded the first
settlement agreement to May’s counsel only one day prior to the date the claim
was to be taken under submission, leaving no time to revise the agreement if
its terms were not acceptable to May.
Central Baptist did not request an additional extension of time to cross
examine the doctors until the filing of its petition for reconsideration. A petition for reconsideration is not a
proper vehicle to obtain an extension of proof time. Central Baptist’s attempt to extend proof
after the ALJ rendered a decision is an attempt at a second bite of the apple
and is simply too late. The ALJ properly
limited proof taking concerning the motion to set aside the September opinion
to evidence concerning the validity of the revised agreement. Pursuant to T.J. Maxx v. Blagg, we
believe it would be improper to order the ALJ to reopen proof time to permit
the taking of the depositions of Drs. Owen and Burke.
Accordingly, the September 11, 2013
Opinion and Order, the January 30, 2014 Opinion and Order, the February 6, 2014
Opinion and Order on Reconsideration and the March 7, 2014 Opinion and Order on
Reconsideration of Hon. William J. Rudloff, Administrative Law Judge, are
hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON GUILLERMO A CARLOS
444 W SECOND ST
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON DONALD R TODD
145 MARKET ST
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J RUDLOFF
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601