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Workers’
Compensation Board
OPINION
ENTERED: September 11, 2015
CLAIM NO. 201270864
SARAH BROWN f/k/a PATRICK BROWN PETITIONER
VS. APPEAL FROM HON. GRANT
S. ROARK,
ADMINISTRATIVE LAW JUDGE
UNITED PARCEL SERVICE and
HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
AND REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Sarah
Brown f/k/a Patrick Brown (“Brown”) appeals from the March 30, 2015 order
rendered by Hon. Grant S. Roark, Administrative Law Judge (“ALJ”) dismissing
her claim without prejudice. Brown also
appeals from the May 22, 2015 order denying her petition for reconsideration.
On appeal, Brown argues
the ALJ erred in dismissing her claim against United Parcel Service (“UPS”) for
failure to attend multiple medical evaluations it had scheduled. She argues the only remedy available to the
ALJ is set forth in KRS 342.205. We
agree, and hereby reverse the dismissal of this claim, and remand to the ALJ
for further proceedings.
Brown filed a Form 101
on August 9, 2013 alleging injuries to her low back on August 18, 2011, and to
her neck on September 12, 2012 while working for UPS in Louisville. She alleged the August 18, 2011 injury
occurred as she was lifting a box. She
alleged the second injury occurred as she was driving a forklift backward and
struck a hole in the floor. In support
of the Form 101, Brown filed records from Baptistworx, Dr. Gary Davis, Dr.
Ellen Ballard, Dr. Steven Young, and Dr. Rodney Chou. She later filed additional records from Dr.
Young, the evaluation report of Dr. Warren Bilkey, records from the VA hospital
in Louisville, and records from the University of Louisville Hospital.
UPS filed records from
Dr. Timir Banerjee who conducted an evaluation on April 13, 2012, Jewish
Hospital, Dr. Chou, Norton Suburban Hospital, and Norton Audubon Hospital. On March 10, 2014, UPS filed a motion to
dismiss the claim with prejudice due to Brown’s failure to attend evaluations
scheduled with Dr. Robert Jacob on two occasions. On April 19, 2014, the ALJ entered an order
denying the motion to dismiss, but placed the claim in abeyance. On September 10, 2014, UPS again filed a
motion to dismiss due to Brown’s failure to attend an evaluation for a third
time. On November 13, 2014, the ALJ
denied the motion to dismiss, but cautioned Brown her failure to cooperate may
result in dismissal of the claim. On
March 2, 2015, UPS again filed a motion to dismiss due to Brown’s failure to
attend a fourth examination. On March
30, 2015, the ALJ entered an order dismissing the claim without prejudice. On April 13, 2015, Brown filed a petition for
reconsideration of the order dismissing, arguing as she does on appeal, the
only remedy available was to place the claim in abeyance with no benefits
accruing so long as she refused to cooperate.
The petition for reconsideration was denied by order entered May 22,
2015. Brown filed this appeal on June
22, 2015.
KRS 342.205(3) states
as follows:
If an
employee refuses to submit himself or herself to or in any way obstructs the
examination, his or her right to take or prosecute any proceedings under this
chapter shall be suspended until the refusal or obstruction ceases. No compensation shall be payable for the
period during which the refusal or obstruction ceases.
This is the only
sanction applicable in this instance.
The ALJ could have placed the claim in abeyance with no benefits
accruing for so long as Brown persists in refusing to attend an evaluation at
UPS’ request, but dismissing the claim was not an option available.
KRS 342.205(3) is
unambiguous on its face, and a rule of statutory construction long accepted by
the Kentucky courts is unambiguous statutes must be applied as written. “[A]bsent an ambiguity, ‘there is no need to
resort to the rules of statutory instruction in interpreting it.’” Hall v. Hospitality Resources, Inc., 276
S.W.3d 775 (Ky. 2008) citing Stewart v. Estate of Cooper, 102 S.W.3d
913, 915 (Ky. 2003). The legislature’s
intent must be inferred, “from words used in enacting statutes rather than
surmising what may have been intended but was not expressed.” Id. Neither the ALJ nor this Board are at liberty
to interpret a statute at variance with its stated language. McDowell v. Jackson Energy RECC, 84
S.W.3d 71, 77 (Ky. 2002).
Additionally, an
established rule of statutory construction is where both a specific statute and
a general statute are potentially applicable to the same subject matter, the
specific statute controls. Parts
Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005). The Kentucky Courts have held, “one of the
established rules of statutory construction is that when two statutes deal with
the same subject matter, one in a broad, general way and the other
specifically, the specific statute prevails.”
Land v. Newsome, 614 S.W.2d 948, 949 (Ky. 1981). Here KRS 342.205(3) is clear on its face, and
specifically sets forth the remedies available in this instance.
KRS 342.205(3) does not
permit an ALJ to dismiss a claim due to the claimant’s failure to attend a
medical examination at the request of the employer, or as in this case,
multiple failures to attend such examination.
The only sanctions available for Brown’s repeated failure to submit to a
medical examination are set forth and clearly articulated in KRS 342.205(3). See also
B.L. Radden & Sons Inc. v. Copley, 891 S.W.2d 84, 84-85 (Ky. App.
1995) where the Kentucky Court of Appeals stated, “We have no hesitation to
hold that the Board correctly concluded that the penalty for failing to appear
for a scheduled medical exam is not dismissal of one’s claims.” While this
Board believes Brown’s continued obstruction is unfortunate and may demonstrate
a reluctance to move forward, the ALJ does not have the discretion to dismiss
the claim for this reason.
Based upon the
foregoing and facts of the claim, the ALJ’s dismissal of the claim is reversed,
and the claim is remanded for further determination, including whether to
assess sanctions pursuant to KRS 342.205(3).
Accordingly,
the March 30, 2015 Order dismissing this claim without prejudice and the May 22,
2015 Order denying the petition for reconsideration by Hon. Grant S. Roark, Administrative Law Judge are REVERSED.
This claim is REMANDED to
the ALJ for further proceedings as set forth above.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON TAMARA TODD COTTON
429 W MUHAMMAD ALI BLVD, STE 1102
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON SARAH C ROGERS
10503 TIMBERWOOD CIRCLE, STE 112
LOUISVILLE, KY 40223
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
