RENDERED: DECEMBER 5, 2014; 10:00 A.M.
NOT
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CENTRAL BAPTIST HOSPITAL. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-12-73151
MARTY MAY;
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, KRAMER,[1]AND STUMBO, JUDGES:
CAPERTON, JUDGE: The Appellant, Central Baptist Hospital, appeals the June 13, 2014, opinion of the Kentucky Workers’ Compensation Board, as well as the September 11, 2013, and January 30, 2013, opinions and orders of the Administrative Law Judge, and the opinions and orders issued on reconsideration by the Administrative Law Judge on February 6, 2014, and March 7, 2014. On appeal, Central Baptist argues that it was error to fail to enforce the revised settlement agreement between the parties, that proof should have been reopened to permit expert depositions, and that benefits should have been awarded pursuant to Kentucky Revised Statutes (KRS) 342.730(1)(c)(2). Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
The Appellee, Marty May, sustained a
herniated disc at T8-T9 while helping a patient get out of bed on June 30,
2012. At the time of the injury, May was
employed by Central Baptist as a registered nurse in the Neo-Intensive Care
Unit, a job which required significant lifting, pushing, and carrying, as most
patients in that unit were incapacitated. At the time of her injury in this matter, May
was a maximum wage earner under the Kentucky Workers’ Compensation Act.
The parties introduced medical proof
at and following the June 12, 2013, Benefit Review Conference (BRC). A week before the final hearing on June 12,
2013, May submitted the reports of two physicians. Central Baptist was unable to depose those
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. The ALJ further ordered that both parties
submit briefs by June 25, 2013, on which date the case would stand submitted
for decision. Following the hearing in
this matter, May was transferred to a lighter duty job with less pay. Following the hearing, the parties advised
the ALJ that a potential settlement was being discussed.
Central Baptist subsequently sent a
proposed settlement agreement to May’s counsel on July 24, 2013. That agreement provided that temporary total
disability (TTD) benefits would be paid from September 25, 2012, to October 22,
2012. It further indicated that “Non-MCO
treatment denied.” May did not accept
the terms of the proposed agreement, and sought a longer period of TTD
benefits; according to her counsel’s August 13, 2013, letter, she sought
payment of TTD through December 20, 2012.
After May provided documentation, a revised agreement was sent to her
counsel on September 4, 2013. The
revised agreement indicated that Central Baptist agreed to pay all reasonable,
necessary, and related medical expenses and that TTD benefits would be paid
from September 25, 2012, to October 22, 2012, and again from November 16, 2012
through December 23, 2012.
As of July 25, 2013, neither party had
submitted additional proof. As noted,
the ALJ initially entered an opinion and order in this matter on September 11,
2013. Therein, the ALJ found that May
sustained an injury to her thoracic spine, for which she was awarded permanent
partial disability (PPD) benefits based upon an 8% impairment rating. Finding that May was unlikely to continue to
earn the same or greater wage for the indefinite future, the ALJ enhanced the
award by applying the three multiplier pursuant to KRS 342.730(1)(c)(1). The ALJ 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, but 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 those occasions did she discuss the revised settlement agreement
with her attorney, who was unexpectedly hospitalized at the time for 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.
Thereafter, on September 23, 2013,
Central Baptist filed a motion and affidavit to set aside the September 11,
2013, opinion and enforce the settlement agreement. That motion stated that the ALJ’s office was
informed of the initial agreement.
Central Baptist also filed a September 25, 2013, petition for
reconsideration, arguing that the ALJ did not make sufficient findings of fact
regarding the enhancement of benefits.
Central Baptist also argued that if the settlement agreement was 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 date upon which the revised Form 110
arrived at his office, and on which date May signed it. On September 16, 2013, he had been released
from the hospital, at which time he informed May of the ALJ’s opinion and
order. May indicated that she wanted to
“accept” the ALJ’s opinion. Her counsel
then informed opposing counsel of her position on September 17th. May’s counsel acknowledged that the revised
Form 110 contained all of the revisions that May had requested but further
stated that at the time May had signed the agreement, neither she nor her
counsel were aware that the ALJ had issued an opinion.
Subsequently, on January 30, 2014, the
ALJ issued an opinion and order holding that 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. Central Baptist then filed two petitions for
reconsideration, challenging both the September 11, 2013, opinion and order,
and the January 30, 2014, decision. Both
were denied. Central Baptist then
appealed to the Board, arguing that the ALJ erred in failing to enforce the
revised settlement agreement and, alternatively, that the award of benefits
pursuant to KRS 342.730(1)(c)(1) was unsupported by the evidence. Finally, Central Baptist requested additional
proof time to permit cross-examination of Drs. Burke and Owen.
As noted, the Board issued an opinion
in this matter on June 27, 2014, affirming the ALJ. In so doing, the Board held that the purpose
of KRS 342.265, which addressed Kentucky workers’ compensation settlement agreements,
is to give the fact-finder an opportunity to pass upon the terms of
compensation agreements, and to protect the interest of the worker. Sub
judice, the Board found that the ALJ properly focused his analysis on
whether there was a meeting of the minds and found, within his discretion, that
there was not. The Board held that the
ALJ’s finding that May never truly assented to the agreement in light of her
lack of knowledge of the ALJ’s award and the fact that she had not discussed it
with her attorney was not devoid of evidentiary basis or entirely
unreasonable. Accordingly, the Board
affirmed the ALJ.
Concerning the argument made by
Central Baptist that benefits should have been awarded pursuant to KRS
342.730(1)(c)(2) instead of KRS 342.730(1)(c)(1), the Board held that the ALJ
was acting within his discretion to rely on May’s testimony and the medical
reports of Drs. Brooks, Owen, and Burke, and that this evidence was sufficient
to support the ALJ’s finding on the applicability of the three multiplier.
Finally, concerning Central Baptist’s
request to reopen proof to take the depositions of Drs. Owen and Burke, the
Board held that Central Baptist was not entitled to same. Finding that the ALJ, as fact-finder, had the
authority to control the taking and presentation of proof in order to
facilitate speedy resolution of the claim, the Board held that the ALJ properly
did so in this instance in light of the facts below. It is from that opinion that Central Baptist
now appeals to this Court.
On appeal, Central Baptist argues, as
it did to the Board, that the ALJ erred in failing to enforce the revised
settlement agreement and, alternatively, that benefits should have been awarded
pursuant to KRS 342.730(1)(c)(2), and that proof should have been reopened to
permit Central Baptist to take the depositions of May’s experts. May disagrees, and asserts that there was not
an enforceable agreement, as there was no meeting of the minds between the
parties. Further, she asserts that the
ALJ properly determined that both the two and three multipliers were
applicable, and that the three multiplier was more appropriate to apply sub judice.
Prior to reviewing the arguments of
the parties, we note that the function of this Court on review is to correct
the Board only where the Court perceives that the Board has overlooked or
misconstrued controlling statutes or precedent, or has committed an error in
assessing the evidence so flagrant as to cause gross injustice. See
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). We review this matter with this standard in
mind.
We turn first to the assertion made by
Central Baptist that the ALJ erred in refusing to enforce the revised
settlement agreement. In reviewing this
matter, we note that KRS 342.265 states, in pertinent part, that:
(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.
As our Kentucky Supreme Court has
previously held, the purpose of this statute is to provide the ALJ with an
opportunity to review the terms of settlement agreements and to protect the
interests of the worker. Skaggs v. Wood Mosaic Corp., 428 S.W.2d
617 (Ky. App. 1968). As held by this
Court in Commerical Drywall v. Wells,
860 S.W.2d 299 (Ky. App. 1993), an ALJ “may look behind the settlement when an
agreement appears not to be in the best interest of the worker, provided there
is cause to do so.”
Sub judice,
we believe that the ALJ correctly focused his analysis in this matter on
whether there was actually a meeting of the minds between the parties. A review of the facts indicates that it is
undisputed that the ALJ issued the September 11, 2013, opinion and order before
the settlement agreement was submitted for approval. It is further undisputed that 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 agreement after she had the opportunity to discuss
the matter with her attorney.
From those facts, the ALJ concluded
that May had never truly assented to the agreement. This was a factual finding made by the ALJ,
which the Board correctly found it was without authority to disturb if
supported by substantial evidence. See Wolf Creek Colleries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). Indeed, it
is the ALJ, as fact-finder, who has the sole discretion to determine the
quality of the evidence and to draw reasonable conclusions therefrom. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Accordingly, we affirm.
Having so found, we now turn to the
argument made by Central Baptist that benefits should have been awarded
pursuant to KRS 342.730(1)(c)(2), or that proof time should have been reopened to
permit cross-examination of Drs. Owen and Burke. In support of that argument, Central Baptist
has directed this Court’s attention to May’s testimony that her condition was
improving. Further, it has asserted that
the records of Drs. Brooks, Owen, and Burke fail to establish that May is
unlikely to continue to earn an average weekly wage equal to or exceeding her
pre-injury wage, and that their reports do not indicate that her condition is
likely to worsen. Finally, Central
Baptist has asserted that it cancelled the depositions of Drs. Owen and Burke
as a result of the settlement, and that it would be prejudiced by not having
that cross-examination as a part of the record.
As our courts have clearly held, when
KRS 342.730(1)(c)(1) and KRS 342.730(1)(c)(2) are both clearly applicable, it
is for the ALJ to determine which provision is more appropriate. Fawbush
v. Gwinn, 103 S.W.3d 5 (Ky. 2003).
This determination includes consideration of a number of factors, only
one of which is the ability to perform the current job. Adkins
v. Pike County Board of Education, 141 S.W.3d 387, 390 (Ky. App.
2004). As held in Adams v. NHC Healthcare, 199 S.W.3d 163, 168 (Ky. 2006), “The
standard for the decision is whether the injury has permanently altered the
worker’s ability to earn an income.”
Sub judice,
the ALJ provided an explanation for his determination that the three multiplier
was more appropriate by specifically stating that the determination was not
based upon May’s ability to continue her current employment, but was instead
based upon the determination that she was unlikely to continue to earn a wage
equal to or greater than that earned at the time of the injury, and that the
injuries have permanently altered her ability to earn an income. This conclusion was based upon the medical
reports of Drs. Brooks, Owen, and Burke, including the work restrictions
assigned by those physicians, as well as May’s own testimony. Upon review, we are in agreement with the
Board that, based on the totality of the evidence, the ALJ’s determination that
the three multiplier of KRS 342.730(1)(c)(1) was most applicable was not
clearly erroneous. Accordingly, we
affirm.
In affirming, we note our agreement
with the Board that Central Baptist was not entitled to additional time to
develop proof. As we have previously
noted herein, 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).
Sub judice,
upon agreement of the parties, the ALJ ordered that all proof be completed by
July 25, 2013. Central Baptist, after
undertaking settlement negotiations, voluntarily elected to forego taking the
depositions of Drs. Owen and Burke. We
believe that the ALJ properly limited proof-taking, and find no error in his
determination to that end. Accordingly,
we affirm.
Wherefore, for the foregoing reasons,
we hereby affirm the June 13, 2014, opinion of the Kentucky Workers’
Compensation Board, as well as the September 11, 2013, and January 30, 2013,
opinions and orders of the Administrative Law Judge, and the opinions and
orders issued on reconsideration by the Administrative Law Judge on February 6,
2014, and March 7, 2014.
KRAMER, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION.
STUMBO, JUDGE, CONCURS.
BRIEF FOR APPELLANT: James B. Cooper Guillermo A. Carlos Lexington, Kentucky |
BRIEF FOR APPELLEES: Donald R. Todd Lexington, Kentucky |