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March 10, 2017 200488349

Commonwealth of Kentucky 

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