Workers’
Compensation Board
OPINION
ENTERED: October 27, 2017
CLAIM NO. 200989758
JOSEPH AMBS PETITIONER
VS. APPEAL FROM HON. DOUGLAS
W. GOTT,
CHIEF ADMINISTRATIVE LAW JUDGE
ALERIS INTERNATIONAL, INC. and
HON. DOUGLAS W. GOTT,
CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Joseph Ambs (“Ambs”) appeals from
the July 6, 2017 order overruling his motion to reopen and the August 1, 2017 order
denying his petition for reconsideration rendered by Hon. Douglas W. Gott,
Chief Administrative Law Judge (“CALJ”).
The CALJ overruled Ambs’ May 26, 2017 motion to reopen since it was
filed after September 2, 2016, the date of the expiration of the term of
benefits agreed to in his Form 110-I settlement agreement approved on February
11, 2011.
On
appeal, Ambs argues he established a prima
facie case to reopen his claim. Ambs
argues if his benefits had not been limited due to his age pursuant to KRS
342.730(4), he would have been entitled to payment for 425 weeks, rather than
the 297 weeks of benefits he actually received.
Ambs argues the CALJ’s determination Parker v. Webster County Coal,
LLC, 2014-SC-00526 (rendered April 27, 2017)(not final), is not retroactive
is contrary to established law. Ambs
argues that “but for” the application of the illegal language contained in KRS
342.730(4), he would currently be receiving benefits. Because the CALJ did not abuse his discretion
in overruling Ambs’ motion to reopen, we affirm.
Ambs
filed a motion to reopen on May 26, 2017, first stating it was “for the purpose
of conforming the award as set forth in KRS 342.730(1)(c)(2).” Ambs simultaneously submitted an affidavit
stating he sustained an August 28, 2006 work-related injury while employed by
Aleris International, Inc. (“Aleris”). He
entered into a Form 110-I settlement agreement for that injury which was
approved on February 11, 2011, and he retained his right to reopen. Further, Ambs stated his employment with
Aleris ceased in 2012, and believes he is entitled to additional, continuing
benefits. Ambs asserted he is entitled
to receive additional weekly benefits for one hundred twenty-seven (127) weeks
since “[u]nder Kentucky law, [his] benefits can not (sic) be terminated upon
his qualification for Social Security retirement benefits.” The 2011 settlement agreement reduced his entitlement
to benefits based upon his age. Ambs
requested his claim be reopened to amend his prior award to conform with KRS
342.730(1)(c)(2) and current Kentucky law.
The
Form 110-I was approved on February 22, 2011 by Hon. J. Landon Overfield,
Administrative Law Judge. The agreement
reflects Ambs sustained a work-related injury on August 28, 2006. The diagnosis is listed as cervical spinal
stenosis. The agreement reflects Ambs underwent
two laminectomies in 2009 and 2010 before returning to his previous job duties
as a roll grinder mechanic on May 10, 2010, earning the same wage. The parties settled the claim for $28,296.98
based upon two hundred ninety-seven (297) weeks of benefits. The agreement noted Ambs “will reach age 66
on 9/2/16.” Ambs retained his right to
reopen.
Aleris
objected to the motion to reopen. In the
July 6, 2017 order overruling Ambs’ motion to reopen, the CALJ stated as
follows:
. . . . The CALJ finds no
grounds for either of the two arguments for reopening, and thus the motion is
overruled.
Plaintiff first argues for
the two-multiplier of KRS 342.730(1)(c)2., because he ceased earning same or
greater wages in 2012. There is no
verification or proof of that fact, but even assuming it as true, such a motion
cannot be retroactive. KRS 342.125(4). Modification of an award is effective
the date of the motion. Here, the motion was filed after the expiration of the
term of benefits, which occurred on September 2, 2016.
Second, Plaintiff seeks to
reopen the award based on the recent case of Parker v. Webster County Coal,
2017 WL 1536470, which held the age limitation on income benefits in KRS
342.730(4) unconstitutional. That case is not yet final, but even it if were,
it would not retroactively apply to this case decided in 2011.
Ambs filed a petition for reconsideration noting he
contemporaneously filed an affidavit setting forth the factual basis for the
motion to reopen, including that his employment with Aleris ended in 2012. Ambs asserts this sworn statement established
a prima facie evidence for the motion
to reopen. Ambs also requested the CALJ
make a specific finding the settlement agreement, approved February 11, 2011,
is “unconstitutional on its face as it discriminated against Mr. Ambs on the
basis of his age. Therein, his award was
overtly reduced to less than a similarly situated younger worker . . .”
The CALJ denied the petition, stating as follows:
Plaintiff
points out a patent error in the petition in that the CALJ erroneously said he
had not verified his claim to the two-multiplier. Plaintiff does not say he has
not returned to work at a same or greater wage since 2012, but that is the
implication. Regardless of that error, Plaintiff does not address the greater
point that a motion to reopen is not retroactive and his weekly benefits
expired before the motion was filed.
Even if Parker v. Webster County Coal becomes final in its
current form, it would not apply to Plaintiff’s claim. The petition is denied.
On
appeal, Ambs argues the CALJ’s determination Parker v. Webster County Coal,
LLC, supra, is not retroactive is contrary to established law. Ambs also argues that absent the application
of KRS 342.730(4), he would currently be receiving benefits and should be able
to receive the balance of his benefits now since the Kentucky Supreme Court has
held that statute is unconstitutional.
Ambs argues he established a prima
facie basis to reopen his claim. He
asserts the affidavit is sufficient evidence to reopen the claim. Ambs asserts once reopened, Aleris could
raise arguments related to his wages subsequent to the cessation of his
employment.
The procedure for reopening a workers’ compensation claim pursuant to
KRS 342.125 is a two-step process. Colwell v. Dresser
Instrument Div., 217 S.W.3d 213, 216 (Ky. 2006). The first step is the prima facie motion, which requires the
moving party to provide sufficient information to demonstrate a substantial
possibility of success in the event evidence is permitted to be taken. Stambaugh
v. Cedar Creek Mining, 488 S.W.2d 681 (Ky. 1972). “Prima facie evidence” is evidence which
“if unrebutted or unexplained is sufficient to maintain the proposition, and
warrant the conclusion [in] support [of] which it has been introduced ... but
it does not shift the general burden ....” Prudential Ins. Co. v. Tuggle’s
Adm’r., 254 Ky. 814, 72 S.W.2d 440, 443 (1934).
The burden during the
initial step is on the moving party and requires establishment of grounds for
which the reopening is sought. Jude
v. Cubbage, 251 S.W.2d 584 (Ky. 1952); W.E. Caldwell Co. v. Borders,
301 Ky. 843, 193 S.W.2d 453 (Ky. 1946).
It is only after the moving party prevails in making a prima facie showing
as to all essential elements of the grounds alleged for reopening that the
adverse party is put to the expense of further litigation. Big Elk Creek
Coal Co. v. Miller, 47 S.W.3d 330 (Ky. 2001). When an ALJ determines the movant failed to
present a prima facie
case for reopening, the decision is reviewed for an abuse of discretion. Harold Turner v. Bluegrass Tire Co.,
331 S.W.3d 605, 610 (Ky. 2010). An abuse
of discretion occurs when the decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Id.; Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
The CALJ determined Ambs
failed to present a prima facie case
for reopening the claim. After reviewing
Ambs’ motion to reopen and the contemporaneous affidavit, we find the CALJ did
not abuse his discretion. In this
instance, the settlement agreement, approved February 11, 2011, reflects the
parties settled the claim for $28,296.98 based upon two hundred ninety-seven
(297) weeks of benefits, or in other words, based upon him attaining the age of
66 on September 2, 2016. KRS 342.125(4)
provides in relevant part, “Reopening shall not affect the previous order or
award as to any sums already paid thereunder, and any change in the amount of
compensation shall be ordered only from the date of filing the motion to
reopen.” This phrase has been construed
to require that a motion to reopen may not have a retroactive effect. Whittaker v. Allen, 966 S.W.2d 956,
958 (Ky. 1998). Therefore, if a
reopening is granted, “the prior award remains in effect until the date of the
motion to reopen, with payments under the new award beginning on that
date.” Id. (citing Hayden v. Elkhorn Coal Corp., Ky., 238 S.W.2d 138 (1951)).
The
2011 settlement provided a lump sum amount based upon two hundred ninety-seven
(297) weeks of benefits when Ambs reached the age of 66 on September 2,
2016. At no time between the settlement
date and the date of expiration of his benefits did Ambs file a motion to
reopen. Similarly, Ambs did not file a
motion to reopen at any time subsequent to his alleged cessation of employment
in 2012 through the expiration of benefits on September 2, 2016 requesting his
award conform to the provisions of KRS 342.730(1)(c)2.
As noted above, Ambs filed a motion to reopen “for the purpose of conforming the
award as set forth in KRS 342.730(1)(c)(2),” and to assert his entitlement to
an additional weekly benefits for one hundred twenty-seven (127) weeks in light
of Parker v. Webster County Coal, LLC, supra.
KRS
342.730(1)(c)2 provides:
If an employee returns to work at a weekly
wage equal to or greater than the average weekly wage at the time of injury,
the weekly benefit for permanent partial disability shall be determined under
paragraph (b) of this subsection for each week during which that employment is
sustained. During any period of cessation of that employment, temporary or
permanent, for any reason, with or without cause, payment of weekly benefits
for permanent partial disability during the period of cessation shall be two
(2) times the amount otherwise payable under paragraph (b) of this subsection.
This provision shall not be construed so as to extend the duration of payments.
KRS
342.730(1)(c)2 requires the injured worker to return to work at a weekly wage
equal to or greater than the average weekly wage at the time of injury and a
cessation of that employment. In support
of his motion, Ambs submitted an affidavit stating his employment with Aleris
ceased in 2012, and his belief he is entitled to additional, continuing benefits. Ambs did not state or allege he had returned
to work following his injury earning equal or greater wages, nor submit wage
information subsequent to his work injury.
On its face the affidavit, the evidence offered by Ambs in support of
his motion to reopen, is insufficient to conclude he is entitled to the two
multiplier if unrebutted or unexplained.
Therefore, we find no error in the CALJ’s secondary determination Ambs’
did not establish a prima facie case
to conform his award to the two multiplier contained in KRS 342.730(1)(c)2 when
not considering the retroactive effect of his motion to reopen.
Finally,
Ambs’ argument regarding the applicability of Parker v. Webster County Coal,
LLC, supra, is premature as the case is not final. Regardless of the potential retroactivity of
the holding Parker v. Webster County Coal, LLC, supra, if it does
become final, the CALJ did not abuse his discretion in overruling Ambs’ motion
to reopen since he filed it after the agreed expiration of the terms of
benefits occurring on September 2, 2016.
Accordingly, the July 6, 2017 order and the August
1, 2017 order on petition for reconsideration rendered by Hon. Douglas W. Gott,
Chief Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON SAMUEL B LEE
PO BOX 308
OWENSBORO, KY 42302
COUNSEL
FOR RESPONDENT:
HON R CHRISTION HUTSON
PO BOX 995
PADUCAH, KY 42002
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON DOUGLAS W GOTT
657 CHAMBERLIN AVE
FRANKFORT, KY 40601