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RENDERED:
JUNE 17, 2016; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2015-CA-001239-WC
LARRY KIDD APPELLANT
PETITION FOR REVIEW
OF A DECISION
v. OF THE WORKERS’ COMPENSATION
BOARD
ACTION NO. WC-13-89060
CROSSROCK
DRILLING, LLC;
HON. STEVEN
BOLTON,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CHIEF JUDGE, J. LAMBERT, AND MAZE, JUDGES.
MAZE, JUDGE: Larry Kidd petitions for review of
an opinion and order by the Workers’ Compensation Board (Board) which affirmed
an order by the administrative law judge (ALJ) denying his motion to set aside
a prior opinion and award. Kidd asserts
that he had entered into a settlement agreement with his employer, Crossrock
Drilling, LLC (Crossrock), prior to entry of the award. As a result, Kidd maintains that the ALJ
erred in finding that he lacked authority to enforce the settlement
agreement. However, this matter turns on
the procedural issue of whether that issue was properly presented to the
ALJ. In the absence of a verified motion
to enforce the purported settlement and filing of the correspondence
documenting that settlement, we agree with the Board that the issue was not
properly presented. Hence, we affirm.
The
relevant facts of this matter are not in dispute. On October 24, 2013, Kidd filed a Form 101
alleging that he suffered work-related injuries to his back, neck, left hip,
and left knee from tripping while exiting a bulldozer and falling onto the
track. The parties proceeded to
introduce evidence. The issues preserved
for decision were whether Kidd retained the physical capacity to return to the
type of work performed at the time of the injury; benefits per KRS[1]
342.730; work-relatedness/causation; unpaid or contested medical expenses;
injury as defined by the Act; duration of temporary total disability (TTD); and
the extent and duration and multipliers.
The ALJ conducted a hearing on these issues on December 18, 2014.
Following
that hearing, Kidd’s attorney engaged in settlement discussions with the
adjustor for Crossrock’s insurer.
Neither the ALJ nor Crossrock’s counsel were
advised of these negotiations. During a
series of emails dated between January 28 and February 24, 2015, Kidd’s
attorney and the adjustor discussed a potential settlement of Kidd’s
claim. In the final email, dated
February 24, the adjustor indicated that Crossrock would agree to a settlement
involving a lump-sum payment of $55,000 with a waiver of vocational rehabilitation
benefits. The adjustor also asked Kidd’s
attorney to prepare the appropriate settlement documents.
But
on February 20, the ALJ issued an opinion and award concluding that Kidd was
not entitled to TTD benefits or future medical benefits. Kidd’s attorney received the opinion on
February 25. On March 3, Kidd filed a
petition for reconsideration, asserting that the parties reached a settlement
prior to receipt of the opinion. Kidd
attached copies of the emails as an exhibit to the petition. In its response, Crossrock argued that any
negotiations between Kidd’s counsel and the adjustor were improper because SCR[2]
3.130 (4.2) prohibits a lawyer from communicating with a client who he knows to
be represented by counsel. In the
alternative, Crossrock argued the alleged settlement failed to resolve all
material terms and was therefore unenforceable.
On
April 3, the ALJ issued an order denying the petition for reconsideration. The ALJ concluded that Kidd failed to
properly raise a motion to adopt the settlement by filing a Form 110 or by
presenting verified motion to adopt the settlement agreement. On appeal, the Board affirmed. This petition for review followed.
The
only issue before this Court is whether there was a proper motion before the
ALJ to adopt the alleged settlement agreement.
“An agreement to settle a workers’ compensation claim constitutes a
contract between the parties.” Whittaker v. Pollard, 25
S.W.3d 466, 469 (Ky. 2000). “Once
approved, an agreement to settle a claim becomes an award.” Id. citing Stearns Coal &
Lumber Co. v. Whalen, 266 Ky. 227, 98 S.W.2d 499 (1936). See
also KRS 342.265(1). A settlement
agreement may be proven by correspondence between the parties provided that
there are no assertions that the terms of the agreement are incomplete. Coalfield Telephone Co. v. Thompson, 113, S.W.3d 178, 180 (Ky.
2003).
In
determining whether the parties have reached an agreement, the ALJ must look to
the substance of the agreement rather than any particular form. Id. at 181. Thus, the
absence of a Form 110 is not controlling.
Nevertheless, there must be sufficient documentary evidence filed in the
record, which when taken together, comprises the memorandum of agreement. Id. The ALJ and the Board each noted that Kidd
never filed a verified motion to adopt the proposed settlement. Consequently, the emails establishing the
purported agreement were never filed of record as required by KRS 342.265(1). As a result, the ALJ and the Board concluded
that the issue was never properly presented to the ALJ.
We
agree. On a petition for
reconsideration, the ALJ is limited in the review to the correction of errors
patently appearing upon the face of the award, order, or decision. KRS 342.281. Thus, Kidd’s petition for reconsideration was
not the proper means to seek enforcement of the alleged settlement. Although Kidd was not required to file a Form
110 to enforce the alleged settlement, he was required to file a verified
motion with the correspondence filed of record.
Hudson v. Cave
Hill Cemetery, 331 S.W.3d 267, 270 (Ky. 2011). In the absence of a proper motion, the
existence of an enforceable settlement agreement was not before the ALJ. Therefore, the ALJ and the Board properly
declined to address the issue.
Accordingly,
we affirm the July 17, 2015 order of the Workers’ Compensation Board.
all
concur.
|
BRIEF FOR
APPELLANT: Glenn Martin
Hammond Matthew R.
Hall Pikeville,
Kentucky |
BRIEF FOR
APPELLEE: Aziza H. Ashy Lexington,
Kentucky |
