Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: April 14, 2017

 

 

CLAIM NO. 200364300

 

 

FORD MOTOR COMPANY, LAP                        PETITIONER

 

 

 

VS.        APPEAL FROM HON. JONATHAN WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

JOHN J. FUERTES

and HON. JONATHAN WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

STIVERS, Member. Ford Motor Company, LAP (“Ford”) appeals from the December 22, 2016, Order of Hon. Jonathan Weatherby, Administrative Law Judge (“ALJ”) amending his August 8, 2016, Order to state John J. Fuertes (“Fuertes”) is entitled to interest at the rate of 12% per annum from the date his permanent partial disability (“PPD”) benefits were enhanced by the two multiplier pursuant to KRS 342.730(1)(c)2.

          The ALJ’s August 8, 2016, Order reads as follows:[1]

     This matter has been remanded to the ALJ for a determination of the applicability of the "2" multiplier per KRS 342.730(1)(c)2, in light of the Kentucky Supreme Court's ruling in Livingood v. Transfreight, LLC , 467 SW3d 249 (Ky. 2015). The following findings are hereby entered:

     In Livingood, the Kentucky Supreme Court established a standard that requires the employer to prove that the Plaintiff's conduct constitutes an intentional deliberate action with a reckless disregard of the consequences to either himself or another in order to avoid the "2" multiplier for an applicable cessation of employment. The Defendant Employer in this matter was given the opportuntiy to produce evidence that would support a claim that this Plaintiff was terminated for reasons that would satisfy this standard. The evidence put forward establishes that the reason for termination given by the employer was a failure of the Plaintiff to perform at an acceptable level. This alone does not approach the standard established in Livingood. The ALJ finds that the Plaintiff was terminated for reasons that do not satisfy the standard in Livingood and that also do not disqualify him for the "2" multiplier per KRS 342.730(1)(c)2.

ORDER

     The Plaintiff's permanent partial disability benefits shall be enhanced by a factor of "2" per KRS 342.730(1)(c)2, beginning on the date of his termination, March 11, 2005.

          Fuertes alleged he sustained multiple injuries on October 30, 2003.  In an October 21, 2010, Opinion and Award, Hon. James L. Kerr, Administrative Law Judge (“ALJ Kerr”) determined Fuertes sustained a right knee injury meriting a 5% impairment rating, a cervical spine injury resulting in a 3% impairment rating, and a right shoulder injury resulting in a 4% impairment rating.  ALJ Kerr dismissed Fuertes’ claim for a lumbar injury.  ALJ Kerr awarded temporary total disability (“TTD”) benefits for various periods in 2003, 2004, and 2005.  Beginning February 5, 2005, Fuertes was awarded PPD benefits based on a 12% impairment rating for 425 weeks together with interest at the rate of 12% per annum on all past due and unpaid installments of compensation. ALJ Kerr “declined to award any multipliers in Fuertes’ claim.”  He also resolved various medical fee disputes asserted by Ford. 

          Because Fuertes had filed a hearing loss claim and ALJ Kerr failed to ensure Fuertes had undergone a University Evaluation (“UE”) as required by KRS 342.315, the claim was placed in abeyance until the UE was performed.  Upon submission of all the proof in the hearing loss claim, on June 24, 2011, ALJ Kerr rendered an Opinion and Award determining Fuertes had a 2% impairment due to work-related noise exposure and was only entitled to an award of medical benefits. ALJ Kerr also ruled on outstanding petitions for reconsideration that had been filed following the October 21, 2010, Opinion and Award.  ALJ Kerr amended the October 21, 2010, Opinion and Award to correct factual errors and reaffirmed his finding Fuertes retained the capacity to return to the type of work performed at the time of the injury until his termination by Ford.  Thus, the three multiplier was not applicable.  ALJ Kerr amended the award of TTD benefits and also set aside an award of TTD benefits from September 7, 2004, through September 28, 2004. ALJ Kerr awarded benefits for the work-related hearing loss. The remainder of the October 21, 2010, Opinion and Award remained unaltered. Fuertes appealed from the October 2010 and June 2011 decisions requesting the Board remand the claim to the ALJ for a finding he sustained a compensable lumbar injury; did not retain the physical capacity to return to work or, alternatively, that he is entitled to benefits enhanced by the two multiplier; he is entitled to an award of income benefits for the hearing loss; and is entitled to TTD benefits as originally awarded by the ALJ.

          In an Opinion rendered October 27, 2011, this Board affirmed ALJ Kerr’s determination Fuertes did not sustain a compensable low back injury, is not entitled to enhanced benefits by the three multiplier contained in KRS 342.730(1)(c)1, and is entitled to medical benefits but not income benefits as a result of his work-related hearing loss.  However, we reversed that portion of the June 24, 2011, Opinion and Award setting aside the award of TTD benefits from September 7, 2004, through September 28, 2004, in the October 21, 2010, Opinion and Award.  The claim was remanded to the ALJ for entry of an amended opinion and award, reinstating the award of TTD benefits.  Because we believed the ALJ did not resolve entitlement to enhanced PPD benefits by the two multiplier, the claim was also remanded for a determination of whether Fuertes was entitled to enhanced PPD benefits pursuant to KRS 342.730(1)(c)2 and the applicable case law.  Ford appealed the Board’s decision remanding the claim for a determination of whether the two multiplier was applicable.

          On October 4, 2013, the Court of Appeals rendered an Opinion Reversing and Remanding concluding the Board erred in remanding the matter to the ALJ for additional findings and stating as follows:

Taken as a whole, we find that the phraseology of the ALJ’s two orders clearly conveys the ALJ’s belief that Fuertes failed to produce substantial evidence supporting that his termination was related to any work-related disability (i.e., the third of the above factors). And, because “effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language,” Furlow v. Sturgeon, 436 S.W.2d 485, 486 (Ky. 1969) (citation omitted), the ALJ’s refusal to apply “any multiplier” to Fuertes’s benefits effectively carried with it a refusal to apply the multiplier specified in KRS 342.730(1)(c)2. For this reason, we agree that the Board erred in remanding this matter to the ALJ for additional findings; the findings contemplated by the Board were already made.

 

     Having resolved the only issue briefed by Ford in its appeal, there is now a question of how to proceed. Ford argues that because the Board erred in directing the ALJ to make additional findings, Fuertes’s claim for benefits multiplied by KRS 342.730(1)(c)2 should simply be dismissed. We disagree.

     In Hutchins v. General Elec. Co., 190 S.W.3d 333 (Ky. 2006), the Kentucky Supreme Court remanded to the Court of Appeals for a review of appellate issues on the merits after determining that the Court of Appeals had incorrectly dismissed a claimant’s petition for review for failing to name an indispensable party. In Aisin Automotive Castings v. Rose, No. 2007-CA-000825- WC, 2007 WL 3317545 (Ky. App. Nov. 9, 2007), [footnote omitted] the Court of Appeals remanded to the Workers’ Compensation Board for review of whether the ALJ’s opinion regarding a claimant’s entitlement to medical expenses was supported by substantial evidence after the Board erroneously determined that the failure to join the claimant’s attorney as a party to the administrative appeal precluded any review of that issue. As a practical matter, an erroneous refusal to address an issue on appeal due to a perceived failure to join an indispensable party is the same as an erroneous refusal to address an issue on appeal for any other perceived lack of authority. Thus, taken together, these cases stand for the proposition that in the context of workers’ compensation where a lower appellate tribunal disposes of all or part of an appeal as the result of a mistaken belief that it has no authority to conduct any review, the proper disposition of the case may include remanding the case back to the lower appellate tribunal for consideration of the undecided issues on the merits.

 

     We believe that this is the proper way to proceed. In the instant matter, when these proceedings were before the Board, in addition to arguing that the ALJ had failed to make any findings regarding KRS 342.730(1)(c)2, Fuertes also argued that the evidence of record compelled a finding that KRS 342.730(1)(c)2 applied to his award. The Board did not address Fuertes’s latter argument because, in perceiving that the ALJ had failed to make any finding regarding KRS 342.730(1)(c)2—and in correctly understanding that only the ALJ has the authority to make any such finding [footnote omitted]- the Board assumed that it had no authority to address whether the evidence of record would have compelled such a finding.

CONCLUSION

     The Board incorrectly remanded this matter to the ALJ for additional findings. To that extent, we reverse. However, because the Board failed to address whether the ALJ erred in his determination that substantial evidence does not support the application of the multiplier described in KRS 342.730(1)(c)2 to Fuertes’s award, we remand with directions for the Board to review this issue on the merits.

Slip Op. at 4-5.

          On January 14, 2014, we entered an opinion affirming in part and remanding in part.  We determined the record compelled a finding KRS 342.730(1)(c)2 is applicable as Fuertes returned to work at the same wage earned at the time of the injury.  However, we concluded the evidence did not compel a finding Fuertes was entitled to PPD benefits enhanced by the two multiplier at the time of the ALJ’s decision.  We directed as follows:

     Fuertes is not presently entitled to receive permanent partial disability (“PPD”) benefits enhanced by the two multiplier. Nonetheless, pursuant to the Court’s holding in Chrysalis House v. Tackett, 283 S.W.3d 671 (Ky. 2009), KRS 342.730(1)(c)2 is applicable to his claim because he did return to work at the same wage as he earned at the time of his injury, albeit for a limited period. His right to enhancement by the two multiplier is not triggered until such time as he again returns to work at the same wage and then subsequently ceases to earn that wage for a reason connected to his work injury.

Slip Op. at 4.

          The ALJ was directed to enter an amended opinion and award reinstating the original award of TTD benefits.  The ALJ was also directed to amend his decision to reflect KRS 342.730(1)(c)2 is applicable and Fuertes may reopen his claim should he return to work at the same or greater wage and subsequently cease to earn that wage for a reason related to his injury. 

          After rendition of the Board’s opinion, Fuertes timely appealed.  While the matter was pending before the Court of Appeals, without filing a motion to reopen as required by 803 KAR 25:012 Section 1(6), Ford filed multiple medical fee disputes.[2]  In an opinion rendered May 1, 2015, the Court of Appeals affirmed our decision.  Fuertes appealed to the Kentucky Supreme Court.    

          In Fuertes v. Ford Motor Co., 481 S.W.3d 808 (Ky. 2016), rendered February 18, 2016, the Supreme Court reversed the Court of Appeals based on its recent holding in Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015) and remanded for further proceedings.  The Supreme Court noted the Board’s review “was limited to determining whether the evidence is sufficient to support the ALJ’s finding, or if the evidence compels a different result.” Id. at 810. The Supreme Court concluded it need not address the merits of Fuertes’ argument due to its recent holding in Livingood, supra.  Therefore, it instructed as follows:

     In this matter, no finding has been made whether Fuertes's conduct at Ford satisfies this new standard so as to justify the denial of the application of the two multiplier. On remand, the ALJ should make a finding of whether Fuertes engaged in conduct as outlined in Livingood that led to the reduction of hours he worked and ultimate termination. We note that this is a high standard and basic bad behavior will not bar application of the two multiplier. If Fuertes did not engage in such conduct, the two multiplier may be applied to his award.

     Fuertes has additionally requested that this Court decide whether the claimant or employer has the burden of proof to show the employee was fired due to the type of misconduct as described in Livingood. To prove that the claimant was fired because he committed that type of misconduct, evidence must be provided which supports the conclusion the claimant acted inappropriately. Obviously it is unlikely that the claimant would admit to misconduct. Because of this, and since proving that type of misconduct occurred is a defense against application of the two multiplier, the burden of proof is upon the employer to show the claimant's termination was caused by the type of behavior described in Livingood.

Id.

          On March 7, 2016, Ford filed a “Motion to Reopen Proof” asserting that since the law has now changed, it will be materially affected on remand if it is not permitted to introduce proof as to why Fuertes was fired and “whether or not his behavior contributed to his termination and eventual loss of same or greater wages.”  Ford requested proof be reopened to allow it to submit evidence regarding this issue arguing that failure to reopen the record would result in significant prejudice.

          On that same date, Ford filed a “Motion to Join Southwest Laboratory” as a party to one of its medical fee disputes and another medical fee dispute.

          On March 14, 2016, Fuertes filed a response to the Form 112, the Motion to Join Southwest Laboratory, and an objection to Ford’s motion to reopen the proof time. 

          Thereafter, between March 28, 2016, and May 19, 2016, Ford filed a Motion to Supplement Medical Fee Dispute, a Motion to Join Dr. Scott Kuiper, and another Medical Dispute. 

          In June 2016, Fuertes filed a response to the medical fee dispute and motion to join Dr. Kuiper and the records of Louisville Orthopedic Clinic.  That same month,     Ford filed its reply to Fuertes’ response. 

          On July 18, 2016, the ALJ entered an order noting the parties had participated in a telephonic conference and Ford had requested an opportunity to enter proof in order to establish the “‘Livingood’ standard with respect to the applicable multiplier.”  The ALJ directed Ford had until August 5, 2016, to present prima facie evidence of the likelihood that the standard may be satisfied.  A telephonic conference was set for August 5, 2016.

          On August 8, 2016, the ALJ entered the order enhancing Fuertes’ benefits by the two multiplier beginning on March 11, 2005.  The next day, Fuertes filed a “Response to Defendant’s Submission of Prima Facie Evidence.”[3]

          Neither party filed a petition for reconsideration or a notice of appeal.  The first pleading filed in the record thereafter is the October 28, 2016, “Motion for Approval of Attorney Fee” filed by Fuertes’ counsel.

          On November 9, 2016, Fuertes filed a “Motion to Clarify Ruling” asserting as follows:

Although not specified, the ALJ's decision, as a matter of clearly established law, modifies the original award to reflect that Plaintiff was entitled to double benefits (2 times $51.43), such that the award would be, "beginning March 11, 2005, the sum of $102.86 per week and continuing for a period not to exceed 425 weeks together with interest at the rate of 12% per annum on all past due and unpaid installments of such compensation." The Defendant, however, has refused, without reasonable foundation, to pay interest, by asserting in an October 26, 2016 email correspondence that, "There was no award for interest and since there was no petition for reconsideration requesting that award, Ford did not pay interest." The undersigned does not believe the limited findings in this case can reasonably be afforded Defendant's interpretation. Nevertheless, Plaintiff respectfully requests an Order scheduling a Telephonic Conference at least ten days after the filing of this Motion (to afford Defendant an opportunity to Respond) and a subsequent Order correcting any findings rendered on or about August 10, 2016 which may be subject to misinterpretation by Defendant as discussed herein. Whittaker v. Hall, 132 S.W.3d 816 (Ky. 2004).

          On December 7, 2016, Fuertes filed a “Notice of Filing Order” with a tendered order.  Fuertes contended the tendered order reconciled the ALJ’s findings “rendered on or about August 10, 2016” with ALJ Kerr’s original October 21, 2010, award. 

          On December 22, 2016, Ford filed an “Objection to Plaintiff’s filing a pleading called ‘Order’” requesting the ALJ incorporate by reference all its arguments previously made in response to the motion to clarify and to strike the new proposed order.  Ford reasoned the proposed order would have been appropriate in a petition for reconsideration; however, for reasons previously set forth the order was late and not allowed by rule or statute.  Ford also asserted the ALJ’s original opinion and order cannot be altered due to Fuertes’ oversight and failure to timely file a petition for reconsideration and proposed order.

          On that same date, the ALJ entered the order in question amending the August 8, 2016, Order as follows:

The Plaintiff's permanent partial disability benefits shall be enhanced by a factor of "2" per KRS 342.730(1)(c)2 beginning on March 11, 2005, together with interest at the rate of 12% per annum on all past due and unpaid installments of such compensation.

          In addition, the ALJ entered an order approving an attorney’s fee for Fuertes’ counsel.         

          Ford’s arguments on appeal are as follows:

1. KRS 342.281 sets forth that a Petition for Reconsideration of an ALJ’s Order must be presented within 14 days of the ALJ’s decision and Respondent’s attempt to circumvent this rule by naming a Petition for Reconsideration a ‘Motion to Clarify’ does not create a new time period for asking for review.

2. The Petitioner was not obligated to pay the 2x until after the law changed in 2015 in another case (Livingood v. Transfreight). Thus, no interest can be owed for a period of time when benefits were not owed. Interest cannot be owed on benefits that were not due.

3. This case is distinct from a normal appeal and one that, when the Employer loses, back interest and PPD are to be paid. Legally, no principle became due and owed until, at the earliest, Livingood, which changed the 2x law that related to Fuertes surprise ‘win’ and remand. Since no back due principle was due under the Chrysalis law, it follows that no interest is due when there is no principle due.

          We will only address Ford’s first argument since it is the only issue subject to our review. 

          Ford argues KRS 342.281 and 803 KAR 25 do not set forth legal provisions for this “newly coined motion.”  Thus, it should be stricken as an improper method to review the August 8, 2016, Order which became final on September 10, 2016.  Ford correctly notes KRS 342.281, KRS 342.285, and 803 KAR 25 et. seq. permit the filing of a petition for reconsideration to allow the ALJ to correct patent errors such as omissions contained within the award, calculation errors, or patent error not based on legal interpretation.  Therefore, Ford argues Fuertes should have filed a petition for reconsideration on or about August 24, 2016.  Since neither party filed a petition for reconsideration, the award became final on September 10, 2016.  Ford argues the motion to clarify is nothing more than a late petition for reconsideration.  Consequently, Fuertes should not have been permitted to utilize new forms of relief in an effort to disguise an untimely petition for reconsideration.  Ford requests the untimely December 22, 2016, Order be vacated.

          The ALJ did not have jurisdiction and thereby the authority to enter the December 22, 2016, Order.  Upon entry of the August 8, 2016, Order, neither party filed a petition for reconsideration nor a timely notice of appeal.  Thus, the ALJ’s order became final and no longer appealable thirty days after its rendition. Notably, the claim had not been reopened when Ford filed multiple medical fee disputes because it failed to file a motion to reopen as required by 803 KAR 25:012 Section 1(6) which reads as follows:

(6) Following resolution of a workers' compensation claim by final order, a motion to reopen pursuant to 803 KAR 25:010, Section 4(6), shall be filed in addition to the Form 112.

(a) Unless utilization review has been initiated, the motion to reopen and Form 112 shall be filed within thirty (30) days following receipt of a complete statement for services pursuant to 803 KAR 25:096.

(b) The motion to reopen and Form 112 shall be served on the parties, upon the employee, even if represented by counsel, and upon the medical providers whose services or charges are at issue. If appropriate, the pleadings shall also be accompanied by a motion to join the medical provider as a party.

(c) This dispute shall be assigned to the Frankfort motion docket, where it shall be either summarily decided upon the pleadings, or assigned to an administrative law judge for further proof time and final resolution.

          ALJ Kerr’s June 24, 2011, Opinion and Award which incorporated by reference his decision of October 21, 2010, is a final order.  Thus, in order for Ford to assert a medical fee dispute it was required to file a motion to reopen.  Since a motion to reopen was not filed and there was no appeal from the August 8, 2016, Order, the ALJ did not have jurisdiction to enter his December 22, 2016, Order.  We emphasize that even though the ALJ did not have jurisdiction to enter the December 22, 2016, Order, this does not negate Ford’s right to appeal from that order. 

          In Tube Turns Div. v. Logsdon, 677 S.W.2d 897, 898 (Ky. 1984), the Court of Appeals defined a final order as follows:

A final order has been defined as one that “either terminates the action itself, decides some matter litigated by the parties or operates to divest some right, in such a manner as to put it out of the power of the court making the order after the expiration of the term to place the parties in their original condition.” North American Refractories v. Day, 284 Ky. 458, 145 S.W.2d 75 (1940). This definition has been applied to Workers' Compensation cases, cf. Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939); Green River Fuel Co. v. Sutton, 260 Ky. 288, 84 S.W.2d 79 (1935).

          The ALJ’s August 8, 2016, Order clearly constituted a final order.  If either party desired an amendment to the order, the timely filing of a petition for reconsideration was necessary.  Since neither party filed a petition for reconsideration seeking relief from that order, the ALJ’s August 2016 order became final on or about September 8, 2016, thereby divesting the ALJ of jurisdiction of the claim.  Therefore, the ALJ did not have jurisdiction to consider Fuertes’ November 9, 2016, Motion to Clarify Ruling.

          The Supreme Court’s holding in Davis v. Warrior Coal, LLC, 2009-SC-000773-WC, rendered August 26, 2010, Designated Not To Be Published, is dispositive.  In Davis, the ALJ denied Davis’ post-award motion for additional interest pursuant to KRS 342.040(1) and for sanctions against Warrior Coal pursuant to KRS 342.310(1).  Davis appealed to this Board asserting the ALJ erred in refusing to award additional interest and impose sanctions.  Davis complained Warrior Coal failed to comply with KRS 342.040(1) when it failed to reinstate voluntary benefits after the BRC.  Davis argued he was entitled to the same weekly benefit for 520 weeks regardless of whether the ALJ found him partially or totally disabled.  Davis also complained Warrior Coal failed to begin payment of the award in a timely manner.  The denial of the motion for additional interest and sanctions was affirmed by this Board and the Court of Appeals.  The Supreme Court affirmed stating as follows:

     The claimant's argument might have been persuasive had he raised it in the initial proceeding, but he did not. The ALJ chose not to sanction the employer sua sponte under KRS 342.310(1) for defending the claim for the initial 520 weeks of benefits without reasonable ground. Moreover, the claimant failed to petition for reconsideration and request findings of fact with respect to additional interest or sanctions based on the employer's failure to resume paying voluntary TTD benefits after the BRC.

     The claimant asserted his entitlement to additional interest for the first time in a motion filed after his award became final. He would not have been entitled to prevail even if the ALJ viewed his post-award motion as raising a new claim¹ based on the June 21, 2004 injury because KRS 342.270(1) states in pertinent part as follows:

. . .

II. Post-Award Delay in Paying Benefits

     The claimant complains that the employer failed to comply with his July 28, 2008 award by paying past-due benefits immediately and beginning to pay future benefits immediately. Moreover, the employer had yet to pay anything when he filed his motion on September 8, 2008. He argues that the employer's failure to do so was without reasonable foundation and warranted the imposition of 18% interest from July 28, 2008 under KRS 342.040(1) as well as sanctions under KRS 342.310(1) and 803 KAR 25:010, § 24. He concludes, therefore, that the ALJ erred by denying his motion. We disagree.

     The ALJ lacked jurisdiction to resolve this portion of the parties' dispute and did not err by denying the motion summarily. The claimant filed the motion after his award became final. He did not seek to reopen the award or allege a ground for doing so. This portion of the motion sought to penalize the employer for a delay in complying with the terms of the award and prompt the employer to comply. KRS 342.305 views a final workers' compensation award as being the equivalent of a judgment and designates circuit court as the proper forum for seeking enforcement.

Slip Op. at 2-3.

          As in Davis, since the August 8, 2016, Order was final and no longer appealable and a motion to reopen had not been filed, the ALJ lacked jurisdiction to resolve Fuertes’ Motion to Clarify Ruling and erred in entering the December 22, 2016, Order.  Thus, the ALJ’s December 22, 2016, Order must be vacated.  We cannot address Ford’s second and third allegations of error as those issues are not properly before us.  This Board is only vested with jurisdiction to address the propriety of the ALJ’s December 22, 2016, Order.

          Accordingly, the December 22, 2016, Order amending the ALJ’s August 8, 2016, Order is VACATED.  We are not remanding the claim to the ALJ since the posture of this record demonstrates the ALJ currently has no jurisdiction or authority to issue an order relating in this claim.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON ELIZABETH HAHN

401 S FOURTH ST STE 2200

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON CHED JENNINGS

401 W MAIN ST STE 1910

LOUISVILLE KY 40202

 

RESPONDENT:

JOHN J FUERTES 5715 MOSER FARM RD PROSPECT KY 40059

ADMINISTRATIVE LAW JUDGE:

HON JONATHAN WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT KY 40601