Workers’
Compensation Board
OPINION
ENTERED: March 10, 2017
CLAIM NO. 200488349
STEVEN PRICE PETITIONER
VS. APPEAL FROM HON. DOUGLAS W. GOTT
ADMINISTRATIVE LAW JUDGE
TOYOTA MOTOR MANUFACTURING KENTUCKY
and HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Steven
Price (“Price”) appeals from the December 5, 2016, Opinion and Order and the
December 21, 2016, Order on Reconsideration rendered by Hon. Douglas W. Gott,
Administrative Law Judge (“ALJ”). In the December 5, 2016, Opinion and Order,
the ALJ dismissed Price’s Form 101 as an improper means of reopening the 2006
settlement.
On appeal, Price sets forth three
arguments. First, Price asserts there was no consideration for the alleged
waiver of rights regarding Price’s right knee condition. Second, in the
alternative, Price asserts there was no waiver of rights regarding his right
knee condition. Third, Price requests the assessment of costs against his
employer, Toyota Motor Manufacturing Kentucky (“Toyota”), pursuant to KRS
342.310.
The record contains a Form 110-I
Agreement as to Compensation entered into between Price and Toyota and an Order
Approving Settlement dated August 21, 2006, by Hon. Sheila Lowther, Administrative
Law Judge (“ALJ Lowther”). The Form 110-I asserts on February 3, 2004, Price
injured his “[l]eft ankle/foot and right knee” in the following manner: “[t]he
employee tripped over a die cable laying on a pallet.” The Form 110-I indicates
$24,344.09 in medical expenses were paid, and a total of three surgeries were
performed: “04/29/04 - arthrodesis of the talonavicular joint of left foot with
bone graft; 01/11/05 – Removal of screw from left navicular; 11/09/05 – Right
knee medial meniscal repair.” Dr. G. James Sammarco assessed a 4% impairment
rating on July 24, 2006, with the following diagnoses: “Left foot nonunion with
traumatic arthropathy of the talonavicular joint; Painful screw medial foot
left; Right knee medial meniscal tear; Discoid meniscus lateral compartment.”
Temporary total disability (“TTD”) benefits in the amount of $57,161.71 had
been paid at the time of the settlement, and the parties agreed to a lump sum
settlement of $4,200.50. The Form 110-I indicates the settlement amount does
not include a waiver or buyout of past or future medical expenses.
A September 2, 2016, Form 101 filed in
the record alleges on February 3, 2004, Price injured his right knee in the
following manner:
Claimant tripped and fell over a cable that had been left in a
walkway, causing a fractured left ankle and torn right meniscus. The current
claim is for the right knee only. The left ankle claim was settled in 2006
based on a 4% impairment rating for the left ankle assessed by Dr. G. James
Sammarco, who treated the claimant for that condition at the time.
A description of the medical treatment
Price received for his right knee is as follows:
Initial treatment on site at HIS. Three right knee surgeries:
11/09/15 partial posteromedial meniscectomy by Dr. Vincent J. Sammarco; 7/30/08
partial medial meniscectomy by Dr. Vincent J. Sammarco; 10/15/15 partial medial
and lateral meniscectomies by Dr. Timothy Wilson.
The Form 101 indicates TTD benefits
were paid from March 4, 2004, through July 24, 2005; September 20, 2005,
through January 22, 2006; June 5, 2006, through July 4, 2006; July 28, 2008,
through November 30, 2008; and October 14, 2015, through January 17, 2016. Attached
to the Form 101 is the Independent Medical Examination report of Dr. James C.
Owen. After performing an examination and a medical records review, Dr. Owen
set forth the following diagnosis:
Persistent knee pain associated with markedly diminished intraarticular
spacing of the medial compartment. He is likely to be a candidate for knee
replacement at the appropriate age if conservative treatment can get him
through to that point in time.
Regarding causation, Dr. Owen opined
the work-related injury on February 3, 2004, caused Price’s knee condition,
stating “[t]he mechanism of injury being excessive torsion and torque of the
soft tissue meniscus of the right knee.” He assessed an 8% whole person
impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”), and opined Price was “temporarily” at maximum medical
improvement (“MMI”). Regarding MMI, Dr. Owen stated as follows: “I do think he
will require knee replacement at some point in time. Generally speaking, that
rating would be significantly greater than what is offered today per objective
evidence by X-rays done in the office.”
On September 30, 2016, Toyota filed a
Special Answer asserting three defenses: statute of limitations; failure to
join claims; and the claim was previously settled by the parties. Also on
September 30, 2016, Toyota filed a Motion to Dismiss arguing Price improperly
filed a Form 101 for a claim that was previously settled.
Price was deposed on November 3, 2016.
At the time of the deposition, Price was working for Toyota as a team leader in
parts conveyance. Price acknowledged that after the February 3, 2004, injury,
he had problems with his left ankle and right knee.
Q: Okay. So you were having problems with
your left ankle and your right knee; correct?
A: That is correct.
Q: Okay. All from the same - - injury? You
just had one injury that date?
A: Yes, that is correct.
Q: And - - and you hurt two different parts
of your body?
A: That is correct.
Q: Okay. And did you get treatment for both
your left foot and your right knee at the same time frame?
A: Yes.
Price had surgery on his right knee on
November 9, 2005. At the time of the deposition, Price had a torn meniscus in
his right knee. Price explained:
A: I’ve been - - I was off - - I returned to
work yesterday. I’ve been off for six weeks because of my right knee. I have a
torn meniscus in my right knee right now.
Q: Okay. And who - - did you have surgery on
it?
A: No.
Q: You were just taken back off work for a
while?
A: Actually I was walking up the steps, my
knee gave out, I fell down the steps, hurt my foot and they MRI’d my knee again
and it is - - it is torn.
Q: Are they going to do another surgery on
it?
A: Well, at this point there’s [sic] several things that we have
to discuss as far as what we’re going to do to fix it. I’m not - -
Price testified that at the time of
the deposition, he was seeing Dr. Timothy Wilson, an orthopedic surgeon in
Georgetown, KY, for his right knee condition. All of the medical treatment for
his knee injury had been paid by workers’ compensation. Price also testified
that at the time of the 2006 settlement, he was aware he had injured both his
ankle and knee. However, he believed the settlement agreement was based
entirely upon the impairment rating assessed for his left ankle. His testimony
is as follows:
Q: And I’ll try to be brief. First of all
with regard to the 2006 settlement, was it your understanding - - well, let me
ask you to state it, what body parts do you believe the 2006 settlement
covered?
A: Left ankle –
…
A: The left ankle, they sent me to Dr.
Sammarco to have a [sic] impairment rating on my left ankle. I was under - -
understanding that it was my left ankle.
Q: Okay. And when you say Dr. Sammarco is
that Dr. G. James Sammarco?
A: Yes, Senior.
Q: And did Dr. G. James Sammarco, Sr. perform
treatment on your left ankle?
A: Yes.
Q: Okay. Did Dr. G. James Sammarco, Sr. ever
treat you for your right knee?
A: No.
Q: Okay. Was it your understanding that the
2006 settlement agreement was based entirely on - - of the impairment rating
assigned by Dr. James Sammarco that you just referenced?
A: Yes.
Q: Okay. Did you receive a - - a copy of the
approved settlement agreement in the mail after it was executed?
A: I can’t say whether I did or didn’t.
In the December 5, 2016, Opinion and
Order, the ALJ dismissed the Form 101, holding as follows:
Pending is the Defendant’s motion to dismiss a Form
101 alleging a right knee injury on February 3, 2004. The events leading up to
the motion are as follows.
On February 3, 2004, Plaintiff Steve Price
tripped at work and injured his left foot/ankle and right knee. He underwent
surgeries for both injuries. A knee surgery was performed by Dr. Vincent J.
Sammarco, and two ankle surgeries were performed by Dr. G. James Sammarco; both
doctors are orthopedic surgeons in Cincinnati. (A google search confirms the
separate identities of the two doctor Sammarcos; the former graduated medical
school in 1993, and the latter is in his late 70’s.)
Price was still treating for his injuries in
mid-2006. Additional left foot/ankle surgery had been proposed but apparently
declined. On June 22, 2006, a claims representative for the Defendant asked Dr.
James Sammarco for an opinion on impairment assuming Price had no further
surgery. Price testified he was asked to return to Dr. Sammarco’s office solely
for an evaluation for the left foot/ankle. (depo p. 16) Plaintiff filed Dr.
Sammarco’s July 24, 2006 office note documenting only an exam of the left
foot/ankle. Dr. Sammarco answered the claims representative’s questionnaire the
same day, indicating 4% impairment and the need to “use ankle brace.”
The parties entered into a Form 110
settlement agreement that a previous ALJ approved on August 21, 2006. Price
said he thought the settlement agreement only covered the left ankle. (p. 19,
22) On the Form 110, the “left ankle/foot and right knee” are identified as the
“injury” involved. Under the “medical information” section, left/ankle right
knee surgeries are listed. The “diagnosis or diagnoses” section specifies “left
foot nonunion with traumatic arthropathy of the talonavicular joint; painful
screw medial foot left; right knee medial meniscal tear; and discoid meniscus
lateral compartment.” From the Defendant’s perspective, the gist of the above
is that the right knee was clearly specified as a work related injury whose
condition was encompassed in the settlement. Price counters that the settlement
was based on the 4% impairment for the left ankle/foot injury, and since no
consideration was paid for settlement of the right knee injury he is not bound
to the agreement.
Price has had two knee surgeries since the
settlement agreement was approved, and the Defendant has paid for the treatment
and resulting TTD. (p. 17).
Price filed his Form 101 on September 2,
2016. Among the Defendant’s arguments for dismissal of the claim is that the
Form 101 is a disguise for a dispute over the benefits due under a settlement
agreement that can only be resolved through a motion to reopen. KRS 342.265(4)
states: “If the parties have previously filed an agreement which has been
approved by the administrative law judge, and compensation has been paid or is
due in accordance therewith and the parties thereafter disagree, either party
may invoke the provisions of KRS 342.125, which remedy shall be exclusive.”
The ALJ agrees. Price’s remedy for
asserting a dispute over the Form 110, or seeking an increase in PPD benefits
for the knee (from the 0% he was allocated in settlement), is restricted to a
motion to reopen. Contrary to his argument, Price received consideration for
settlement of his knee injury in the Form 110. The right knee was accepted as
compensable, and benefits were left open. (It is unfortunate the claims
representative did not seek an opinion on knee impairment from Dr. Vincent
Sammarco, but that failure does not afford Price any relief 10 years later. And
on the other hand, since Dr. James Sammarco only treated the foot/ankle injury,
Price was reasonably on notice that the impairment on which his PPD settlement
was based was only for the foot/ankle.) If there are grounds to seek increased
benefits for a change of disability in the right knee condition since approval
of the Form 110, Price is restricted to the reopening procedure, contingent
upon the time limitations of KRS 342.125(8), as clarified in Hall v.
Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2009) and Dana Corporation v. Roberts,
2015-SC-000476, 2016 WL 3371084.
Plaintiff’s Form 101
is dismissed.
Price filed a Petition for
Reconsideration on December 14, 2016, requesting an order vacating the December
5, 2016, Opinion and overruling Toyota’s Motion to Dismiss. Price’s petition
was denied by order dated December 21, 2016.
Price’s three arguments on appeal, as
set forth above, can be dispensed with simultaneously under the same principles
of law.
As the claimant in a workers’ compensation
proceeding, Price had the burden of proving each
of the essential elements of his cause of action, including injury as defined
by the Workers' Compensation Act. Snawder v. Stice, 576 S.W.2d 276
(Ky. App. 1979). Because Price was unsuccessful in his burden,
the question on appeal is whether the evidence compels a
different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735
(Ky. App. 1984). “Compelling evidence” is defined as that which is so overwhelming no reasonable person could reach the same conclusion as the
ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App.
1985). The function of the Board in reviewing the ALJ’s decision is
limited to a determination of whether the findings made by the ALJ are so
unreasonable based on the evidence they must be reversed as a matter of
law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.
2000).
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the sole authority to
judge all reasonable inferences to be drawn from the evidence. Miller v.
East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson
v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ may reject any testimony and believe
or disbelieve various parts of the evidence, regardless of whether it comes
from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88
(Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id. In order to reverse
the decision of the ALJ, it must be shown there was no substantial evidence of
probative value to support his decision.
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
The Board, as an
appellate tribunal, may not usurp the ALJ’s role as fact-finder by
superimposing its own appraisals as to the weight and credibility to be
afforded the evidence or by noting reasonable inferences which otherwise could have been drawn from the
record. Whittaker v. Rowland, supra. So long as the
ALJ’s ruling with regard to an issue is supported by substantial evidence, it
may not be disturbed on appeal. Special Fund v. Francis, supra.
Settlement
agreements are addressed by the Workers’ Compensation Act in KRS 342.265. It is
well-recognized that the purpose of this statute is to provide the ALJ an
opportunity to pass upon the terms of workers’ compensation settlements and thus
protect the interest of the injured 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 entry into settlements
except under the protective supervision of the ALJ. Kendrick v. Bailey Vault Co., Inc.,
944 S.W.2d 147, 149 (Ky. App. 1997). Under the safeguard of the ALJ as a
disinterested representative of the public, once a voluntary compromise
agreement has been properly reviewed and approved, its legitimacy has the
effect of becoming permanent and irrevocable with very few exceptions. Id. at 149.
Relevant to this appeal is
KRS 342.265(4) which states as follows:
If the parties have previously
filed an agreement which has been approved by the administrative law judge, and
compensation has been paid or is due in accordance therewith and the parties
thereafter disagree, either party may invoke the provisions of KRS 342.125,
which remedy shall be exclusive.
Reopening
under KRS 342.125, then, is the remedy intended for redressing specific
situations that occur or come to light after a properly executed Form 110
settlement agreement has been approved. See KRS 342.125(1).
The record contains a properly executed Form 110-I Settlement
Agreement entered into between Price and Toyota and approved by ALJ Lowther on August 21,
2006. The injuries that were the subject of the August 21, 2006, Settlement
Agreement include Price’s right knee injury sustained on February 3, 2004.
Consequently, any assertions regarding Price’s right knee injury, including but
not limited to a change of disability, the compensability of medical expenses,
whether consideration was paid for a waiver of rights concerning the right knee
injury, and whether the Form 110 even contained a waiver of rights pertaining
to the right knee injury, could only have been raised in a timely filed Motion
to Reopen pursuant to the express provisions of KRS 342.125. Stated another
way, anything pertaining to Price’s right knee injury was limited exclusively,
by virtue of KRS 342.265(4) and KRS 342.125, to a timely-filed Motion to
Reopen, not a Form 101. The record reveals Price did not file a Motion to
Reopen.
As the
ALJ’s dismissal of Price’s Form 101 is supported by substantial evidence, all
issues raised on appeal by Price, including the peculiar request for assessment
of costs against Toyota, are without merit, and the December 5, 2016, Opinion
and Order and the December 21, 2016, Order on Reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON PIERRE COOLEN
333 W VINE ST STE 1200
LEXINGTON KY 40507
COUNSEL FOR RESPONDENT:
HON KENNETH J DIETZ
1511 CAVALRY LANE STE 201
FLORENCE KY 41042
ADMINISTRATIVE LAW JUDGE:
HON DOUGLAS W GOTT
657 CHAMBERLIN AVE
FRANKFORT KY 40601