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October 27, 2017 200989758

Commonwealth of Kentucky 

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

 

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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