WAL-MART STORES, INC. v. LENA MCKINNEY; MAHLIAN GRINSTEAD; HON. DONNA TERRY, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: July 2, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-2934-WC
WAL-MART STORES, INC.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-94-045960
v.
LENA MCKINNEY;
MAHLIAN GRINSTEAD;
HON. DONNA TERRY,
CHIEF ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
* * *
BEFORE:
GARDNER, HUDDLESTON, AND KNOX, JUDGES.
KNOX, JUDGE:
Wal-Mart Stores, Inc. (Wal-Mart), appeals from the
ruling of the Workers' Compensation Board (Board) that claimant
Lena McKinney (McKinney) timely filed her motion to reopen her
claim, and was not precluded from doing so by operation of KRS
342.125(1)(d) and (3), as amended December 12, 1996.
In February 1994, while employed by Wal-Mart, McKinney
sustained bilateral carpal tunnel syndrome.
She and Wal-Mart
settled that claim based upon a 40% occupational disability which
was approved by Hon. Donna H. Terry, Chief Administrative Law
Judge (CALJ), by ordered entered May 21, 1996.
On October 14, 1996, McKinney filed a motion to reopen
pursuant to KRS 342.125.
On December 5, 1996, Administrative Law
Judge Roger D. Riggs (ALJ) entered an order directing McKinney to
submit a physician's affidavit relating to the worsening of her
medical condition and a current medical release.
The ALJ's order
further provided that, in the event those materials were not
submitted within twenty (20) days from the date of the order,
McKinney's motion to reopen would be overruled.
On December 26,
1996, McKinney filed a second motion to reopen, attaching the
affidavit of Andrew Moore, M.D., "in compliance with the
Administrative Law Judge's Order of December 5, 1996 . . . ."
On
February 18, 1997, Administrative Law Judge James L. Kerr issued
an order directing McKinney to submit an affidavit from a
physician "relating to a worsening in medical condition" and a
current medical release before the motion to reopen could be
ruled upon.
That order directed McKinney to furnish those
materials within twenty days, or otherwise her motion to reopen
would be overruled.
On February 26, 1997, McKinney filed a third
motion to reopen, attaching to that motion another affidavit from
Dr. Moore and a current medical release.
On April 24, 1997, Chief Arbitrator E. Mahlian
Grinstead issued an order overruling McKinney's motion to reopen.
That order states, in part:
2
[T]he brief affidavit filed by Dr. Andrew
Moore, II simply is not sufficient to
establish a prima facie case for reopening in
that it establishes no causation for
plaintiff's current condition and does not
state any degree of specificity in what
respect her condition has worsened nor did it
address any of the prior current physical
requirements of that job.
The arbitrator's order was appealed to the CALJ.
In
her order affirming the arbitrator's decision overruling
McKinney's motion to reopen, the CALJ stated her belief "that
McKinney has established at least a minimal prima facie showing
of change of condition and change in occupational disability . .
. ."
However, the CALJ ruled that KRS 342.125, as amended
December 12, 1996, prohibited McKinney from reopening her claim
until two years following May 21, 1996, the date the settlement
agreement entered into by Wal-Mart and McKinney was approved by
the ALJ.
In her order, the CALJ noted: "In October, 1996
McKinney attempted to reopen the claim, alleging a worsening of
condition.
Subsequent motions were filed after Administrative
Law Judges ruled on procedural deficiencies, and the instant
motion was filed with the Department of Workers' Claims on
February 26, 1997."
McKinney appealed the CALJ's decision to the Board.
The Board, in reversing the CALJ's decision, ruled that, on
October 14, 1996, the date McKinney first filed her motion to
reopen, McKinney had a vested right "based upon a potential
increase in occupational disability resulting from a change in
occupational disability as provided in KRS 342.125(1)."
3
The
Board held that the CALJ erroneously applied the December 1996
amendment of KRS 342.l25, rather than the pre-amended version in
effect on October 14, 19961.
Appellant raises two arguments: (1) the Board erred in
failing to recognize the CALJ's determination that McKinney's
motion to reopen was filed on February 26, 1997; and, (2) the
Board erred in failing to apply KRS 342.125, as amended in
December 1996, to McKinney's motion to reopen.
KRS 342.125(3) and (8), as amended effective December
12, 1996, state:
(3)
(8)
Except for reopening solely for
determination of the compensability of
medical expenses, fraud, or conforming
the award as set forth in KRS
342.730(1)(c)2., or for reducing a
permanent total disability award when an
employee returns to work, no claim shall
be reopened more than four (4) years
following the date of the original award
or order granting or denying benefits,
or within two (2) years of such award or
order, and no party may file a motion to
reopen within two (2) years of any
previous motion to reopen by the same
party.
The time limitation prescribed in this
section shall apply to all claims
irrespective of when they were incurred,
or when the award was entered, or the
settlement approved. However, claims
decided prior to December 12, 1996, may
be reopened within four (4) years of the
award or order or within four (4) years
of December 12, 1996, whichever is
later, provided that the exceptions to
reopening established in subsections (1)
and (3) of this section shall apply to
these claims as well.
1
The pre-amendment version provided that a motion to reopen
may be made at anytime, with no time limitation.
4
Wal-Mart argues that the Board erroneously found,
contrary to the CALJ's finding that McKinney's motion to reopen
was filed on February 26, 1997, that McKinney's motion to reopen
was filed on October 14, 1996.
McKinney, on the other hand,
argues that the Board's finding is supported by the evidence.
In reading the opinion affirming the arbitrator, it
appears the CALJ concluded, without articulating reasons, that
McKinney's motion to reopen was filed with the Department of
Workers Claims on February 26, 1997.
Ultimately, the CALJ ruled
that the December 1996 amendment to KRS 342.125(3) applies to
McKinney's motion, and does not permit reopening less than two
years following the approval of the settlement agreement entered
into by McKinney and Wal-Mart on May 21, 1996.
On the other hand, the Board appears to have clearly
determined that McKinney's motion to reopen was filed, not in
February 1997, but in October 1996.
From that, the Board
concluded McKinney had acquired a vested right or status on that
date, and "the standard required to be utilized by both the Chief
Arbitrator and the CALJ was whether McKinney's motion and
affidavits constituted a prima facie showing of change in
occupational disability for reopening."
October 1997.
Board's opinion of
The Board ruled that KRS 342.125, prior to the
December amendment, applied, and thus permitted McKinney's motion
to reopen.
The decisions of both the CALJ and the Board appear to
be premised upon their perceptions as to the date upon which
5
McKinney filed her motion to reopen.
The CALJ has taken the
position that McKinney filed her motion after the effective date
of the amendment to KRS 342.125, and therefore that statute
applies to prohibit her claim since it was filed within two (2)
years from the date of her settlement with Wal-Mart.
On the
other hand, the Board's position is that McKinney filed her
motion to reopen in October 1996, prior to the effective date of
the December amendments, and therefore the pre-amendment version
of KRS 342.125 applies to permit McKinney's claim.
Even though the CALJ and the Board appear to disagree
about the date upon which McKinney filed her motion to reopen, in
view of McKinney's argument that she acquired a vested status
under the pre-December 1996 amendment to KRS 342.125 based upon
the date of her settlement agreement with Wal-Mart, we believe
the pivotal issue in this case is whether the 1996 amendment of
KRS 342.125 is remedial and whether it has retroactive
application.
KRS 342.0015, effective December 12, 1996, reads:
The substantive provisions of 1996 (1st
Extra. Sess.) Ky. Acts ch. 1 shall apply to
any claim arising from an injury or last
exposure to the hazards of an occupational
disease occurring on or after December 12,
1996. Procedural provisions of 1996 (1st
Extra. Sess.) Ky. Acts ch. 1 shall apply to
all claims irrespective of the date of injury
or last exposure, including, but not
exclusively, the mechanisms by which claims
are decided and workers are referred for
medical evaluations. The provisions of KRS
342.120(3), 342.125(8), 342.213(2)(e),
342.265, 342.270(7), 342.320, 342.610(3),
342.760(4), and 342.990(11) are remedial.
6
According to the express language of KRS 342.0015, KRS
342.125(8) is remedial in nature.
However, McKinney argues that
KRS 342.125(3) cannot be applied to prevent her from reopening
her claim within two (2) years from the date of her injury,
because to do so would take away her vested right to reopen her
claim at anytime, a right she acquired on the date of her injury
or when she filed her October 1996 motion to reopen.
Further,
McKinney argues that, to the extent her motion to reopen may be
considered to have been filed in October 1996, KRS 342.125 as
amended was not intended by the legislature to apply to claims in
which motions to reopen were filed prior to the amendment's
effective date.
In Peabody Coal Co. v. Gossett, Ky., 819 S.W.2d 33
(1991), our highest Court addressed whether a 1987 amendment to
KRS 342.125, which altered the standard for reopening from a
change of "condition" to a change of "occupational disability,"
had retroactive application.
The Court ruled that the statute,
as amended, was remedial in nature.
Addressing the argument that
the amended statute could not be retroactively applied, a
position with which it ultimately disagreed, the Court cited with
approval this language from 73 Am Jur 2d Statutes ยง 354 (1974):
A retrospective law, in a legal sense, is one
which takes away or impairs vested rights
acquired under existing laws, or which
creates a new obligation and imposes a new
duty, or attaches a new disability, in
respect to transactions or considerations
already past. Therefore, despite the
existence of some contrary authority,
remedial statutes, or statutes relating to
remedies or modes of procedure, which do not
7
create new or take away vested rights, but
only operate in furtherance of the remedy or
confirmation of such rights, do not normally
come within the legal conception of a
retrospective law, or the general rule
against the retrospective operation of
statutes. In this connection it has been
said that a remedial statute must be so
construed as to make it effect the evident
purpose for which it was enacted, so that if
the reason of the statute extends to past
transactions, as well as to those in the
future, then it will be so applied although
the statute does not in terms so direct,
unless to do so would impair some vested
right or violate some constitutional
guaranty.
Peabody Coal Co., 819 S.W.2d at 36.
See also Miracle v. Riggs,
Ky. App., 918 S.W.2d 745 (1996).
In this case, the effect of the amendment is to define
the time period within which motions to reopen may be brought.
While McKinney argues that she acquired vested rights to
additional benefits on the date of her injury, or at the latest,
when she filed her October 1996 motion to reopen, both events
being prior to the effective date of the December amendments to
KRS 342.125, we do not agree.
First, the express language of KRS 342.125(8) applies
KRS 342.125(3) to all pending claims, clearly evincing the
legislature's intent to do so.
Further, KRS 342.0015
specifically manifests the legislature's intent that KRS
342.125(8) is remedial in nature.
Although we cannot find any
Kentucky authority directly on point, other courts have held that
the imposition of limitation periods for the reopening of
workers' claims do not affect any vested rights of a worker.
8
In
Oestreich v. Department of Labor And Indus., 64 Wash. App. 165,
168, 822 P.2d 1264, 1266 (1992), the court said:
However, the imposition of a limitation
period for making claims for adjustment of
workers' compensation benefits is remedial
and does not affect any vested rights of an
injured worker (citations omitted). A
claimant has no vested right to make future
applications for adjustment based on
aggravation of his condition (citations
omitted).
In a similar vein, a Pennsylvania court said:
No one has a vested right in a statute of
limitations or other procedural matters.
So long as there is no omission of a remedy
for the enforcement of a right for which a
remedy existed when the right accrued, a want
of due process is in no way involved.
Primoli v. Philadelphia Bronze & Brass Corp., 211 Pa. Super. 224,
229, 238 A.2d 29, 32 (1967), (quoting Vetrulli v. Wallin Concrete
Corp., 144 Pa. Super. 73, 18 A.2d 535 (1941)).
Considering those authorities, we conclude that the
1996 amendments of KRS 342.125, by establishing a limitations
period for reopening claims, is remedial or procedural in nature,
and does not deprive McKinney of a vested right or status,
regardless whether her claim was filed in October 1996 or
February 1997.
Since neither the Board nor the CALJ articulated
findings with respect to the dates each perceived McKinney's
motion to reopen to have been filed, we do not address that
question.
Rather, we leave that issue to be determined
specifically upon any refiling by McKinney to reopen her claim.
9
For the foregoing reasons, we reverse the decision of
the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR LENA MCKINNEY:
Robyn E. Miller
Douglas L. McSwain
Lexington, Kentucky
John W. Morgan
Theresa Gilbert
Lexington, Kentucky
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
