BUTLER'S FLEET SERVICE and EARL MARTIN; HON. RICHARD JOINER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 23, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002587-WC
BUTLER’S FLEET SERVICE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-72375
EARL MARTIN;
HON. RICHARD JOINER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, SCHRODER, AND VANMETER, JUDGES.
VANMETER, JUDGE:
Butler’s Fleet Service (Butler’s Fleet)
petitions for the review of an opinion of the Workers'
Compensation Board (Board) reversing the decision of an
Administrative Law Judge (ALJ) not to allow Earl Martin to amend
his Application for Resolution of Injury Claim (Form 101) to
include a psychological overlay claim.
For the reasons stated
hereafter, we reverse and remand the Board’s opinion.
Martin worked as a garage attendant at Butler’s Fleet.
On September 9 or 10, 2002, Martin injured his lower back while
putting a truck on a lift at the garage.
Martin filed a Form
101 on August 13, 2003, alleging injury to his lower back.
An
ALJ subsequently dismissed this claim without prejudice pursuant
to Martin’s own motion.
Martin then filed a second Form 101 on
February 6, 2004, again alleging injury to his lower back.
A
scheduling order was entered on March 24 setting a 60/30/15 day
time for proof, 1 and further setting a Benefit Review Conference
(BRC) for July 13.
Martin’s request that his time for proof be
extended to the date of the BRC was filed on June 1.
In support
thereof, Martin indicated that he had scheduled a psychiatric
evaluation on June 18, “the earliest opening available in the
doctor’s schedule,” and further that he was attempting to
schedule Dr. Martin’s deposition.
By order dated June 17, the
ALJ passed Martin’s motion for extension of time to the BRC.
During the July 13 BRC, Martin moved to amend his
claim to include a psychological overlay claim.
Although the
motion had no supporting documentation, Martin asserted that Dr.
Martin’s deposition, which had been taken but not yet
1
As more fully discussed herein, 803 KAR 25:010 sec. 8(2) sets forth the
standard discovery schedule in workers’ compensation proceedings: both
parties take proof for 60 days, then the defense for 30 days, then the
plaintiff for 15 days.
-2-
transcribed, would support such a claim.
The ALJ reserved
judgment on the issue to allow Butler’s Fleet time to file a
written objection to the motion.
Martin subsequently filed Dr.
Martin’s deposition on July 22, as well as a third Form 101,
alleging psychological problems, on July 23.
Butler’s Fleet
filed a response in opposition to Martin’s motion to amend on
July 26, asserting that Martin’s claim was not supported by a
medical report and was otherwise without merit.
At the final
hearing on July 27, the ALJ orally overruled Martin’s motion to
amend, stating
nothing that I have heard is anything that
could not have been discovered before the
filing of the claim. The claim could have
then proceeded in its entirety if it were
filed to requite this portion of the claim.
Martin then filed the psychiatric report by avowal, and the
hearing proceeded regarding Martin’s lower back injury.
On August 19, the ALJ issued an opinion awarding
Martin temporary total disability benefits at the rate of
$319.27 per week, from September 11, 2002, through July 22,
2003, and thereafter permanent partial benefits of $10.38 per
week for a period not to exceed 425 weeks so long as Martin
remains disabled.
Moreover, the ALJ specifically declined to
address Martin’s third Form 101, noting that he previously had
overruled Martin’s motion to amend his claim.
Butler’s Fleet
formally moved to dismiss Martin’s third claim on August 23, and
-3-
after he responded, Martin appealed the matter to the Board on
September 1.
The Board affirmed the ALJ’s award regarding Martin’s
back injury but reversed the ALJ’s refusal to allow Martin to
amend his claim.
In so reversing, the Board found that the
causal connection between Martin’s psychological distress and
his work injury was not readily apparent since some portion of
the psychological distress preceded the injury.
The Board
characterized this causation issue as purely medical and held
that Martin was not required to self-diagnose his condition. 2
The Board concluded that Martin did not become aware of the
causal connection until Dr. Martin’s deposition was taken on
June 9, 2004, and that Martin’s motion to amend submitted on
July 14 and his third Form 101 therefore were timely.
One member of the Board dissented, asserting that the
ALJ did not abuse his discretion in finding that Martin failed
to use reasonable diligence in bringing his psychological claim.
The dissenting member reasoned that KRS 342.270(1) does not
“give a claimant unfettered discretion to omit from his initial
application a cause of action which is known to him or should
reasonably be known to him when he files his initial
2
In so holding, the Board likened the causation of Martin’s psychological
distress to the causation of a gradual injury, which the Kentucky Supreme
Court discussed in Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky.
2001). The Sextet Mining court held that the claimant was not required to
give notice of his gradual workplace injury until his doctor informed him of
the injury. Id.
-4-
application” (emphasis in original).
The member concluded that
because Martin listed “anti-depressants” and “nerve medication”
as part of his medical treatment on his first two Form 101s,
Martin knew or should have known of the psychological claim at
that time, and that he lost the claim when he did not allege it
in his first two Form 101s.
Butler’s Fleet subsequently filed this petition for
review, asserting that the Board erred by finding that the ALJ
abused its discretion in denying Martin’s motion to amend his
Form 101 to include a psychological overlay claim, as
substantial evidence supported the ALJ’s decision.
We agree.
KRS 342.285 governs the Board’s review of an ALJ’s
decision and states that the Board “shall not substitute its
judgment for that of the administrative law judge as to the
weight of evidence on questions of fact[.]” 3
More specifically,
the Board’s review is limited to whether the ALJ’s decision was
authorized, procured by fraud, in conformity with the workers’
compensation statutes, clearly erroneous, or arbitrary or
capricious. 4
Our role on appeal "is to correct the Board only
when we perceive that the Board has overlooked or misconstrued
3
KRS 342.285(2).
4
Id.
-5-
controlling law or committed an error in assessing the evidence
so flagrant as to cause gross injustice." 5
KRS 342.270(1) provides as follows:
If the parties fail to reach an agreement in
regard to compensation under this chapter,
either party may make written application
for resolution of claim. The application
must be filed within two (2) years after the
accident, or, in case of death, within two
(2) years after the death, or within two (2)
years after the cessation of voluntary
payments, if any have been made. When the
application is filed by the employee or
during the pendency of that claim, he shall
join all causes of action against the named
employer which have accrued and which are
known, or should reasonably be known, to
him. Failure to join all accrued causes of
action will result in such claims being
barred under this chapter as waived by the
employee.
KRS 342.270(3) further authorizes the Commissioner of
the Department of Workers’ Claims to “promulgate administrative
regulations establishing procedures for the resolution of
claims.”
Accordingly, 803 KAR 25:010 specifies the procedure
for the adjustment of workers’ claims.
The time for proof in a
claim adjustment begins on the date the commissioner issues a
scheduling order, to proceed as follows:
both parties shall
take proof for 60 days, then the defendants shall take proof for
an additional thirty 30 days, then the plaintiff shall take
5
Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky.App. 2004) (citing Daniel v.
Armco Steel Co., 913 S.W.2d 797, 798 (Ky.App. 1995), quoting Western Baptist
Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992)).
-6-
rebuttal proof for an additional 15 days. 6
The regulations also
state that any motion requesting that the time for proof be
extended “shall be filed no later than five (5) days before the
deadline sought to be extended” 7 and must set forth the following
information:
the efforts to produce the evidence in a timely
manner; facts which prevented timely production; and the date of
availability of the evidence, the probability of its production,
and the materiality of the evidence. 8
Significantly, a motion
for extension of time for proof “may be granted upon showing of
circumstances that prevent timely introduction.” 9
Thus, the
moving party has the burden of persuading the ALJ that he should
be awarded additional time for proof; moreover, the ALJ has the
discretion to determine whether to award the additional time.
In the matter now before us, Martin’s initial 60-day
discovery period began on March 24, 2004, thereby ending on or
about May 23.
As Martin’s motion to extend his time for proof
was not filed until June 1, he did not satisfy the 803 KAR
25:010 sec. 15(2) requirement that such a motion must be filed
within five days before the deadline sought to be extended.
Additionally, Martin’s June 1 motion for an extension of time
6
803 KAR 25:010 sec. 8(1), 8(2). The scheduling order in the matter now
before us set forth this standard timeline for proof.
7
Id. at sec. 15(2).
8
Id. at sec. 15(3).
9
Id. at sec. 15(1) (emphasis added).
-7-
for proof stated that he had scheduled a psychiatric evaluation
for June 18, which was “the earliest opening available in the
doctor’s schedule,” that he was attempting to schedule Dr.
Martin’s deposition, and that these evaluations were necessary
to determine his restrictions and impairments.
Essentially,
Martin’s motion was based on nothing more than scheduling
difficulties, and the ALJ did not err in finding that these
assertions did not meet the standards set forth in 803 KAR
25:010 sec. 15(3). 10
The holding in Cornett v. Corbin Materials, Inc. 11
supports our conclusion.
The Cornett court held that because
the claimant had taken no discovery “within 60 days and the
motion for extension of time was not made within 5 days of the
deadline sought to be extended, the ALJ did not abuse her
discretion in dismissing the claim.” 12
Although Martin correctly
notes that Cornett is distinguishable from the matter now before
us because Martin offered proof regarding his lower back injury
within his initial 60-day time for proof, the Cornett rationale
nevertheless is persuasive because the only proof Martin
produced regarding his psychological claim in his initial 60-day
10
This is especially true since Martin had not even scheduled Dr. Martin’s
deposition when he filed his motion for additional time for proof on June 1
but took Dr. Martin’s deposition on June 9.
11
807 S.W.2d 56 (Ky. 1991).
12
Id. at 59-60.
-8-
time for proof was Dr. Martin’s notes, which Martin
characterizes on appeal as “contain[ing] indicators of
psychiatric treatment.”
However, Martin did not assert a
psychological claim in his initial 60-day time for proof.
Accordingly, the ALJ did not abuse his discretion in overruling
Martin’s motion to amend his claim, and the Board erred in
reversing the ALJ’s decision.
We are not persuaded by Martin’s contention that KRS
342.270 compels a different result by requiring a workers’
compensation claimant to join, during the pendency of his claim,
“all causes of action against the named employer which have
accrued and which are known, or should reasonably be known, to
him[,]” as that statute does not provide a claimant with a means
of bringing his claim.
Instead, under the statute, if a
claimant fails to join such a cause of action he will be barred
from later bringing the claim.
“The language of KRS 342.270(1)
is clear, unequivocal, and mandatory, both with respect to a
worker's obligation to join ‘all causes of action’ against the
employer during the pendency of a claim and with respect to the
penalty for failing to do so.” 13
Nor are we persuaded that the two-year statute of
limitations for workers’ compensation claims as set forth in KRS
342.185 compels a different result.
13
Hypothetically, a workers’
Ridge v. VMV Enterprises, Inc., 114 S.W.3d 845, 847 (Ky. 2003).
-9-
compensation claimant could file a Form 101 and have the claim
resolved within one year.
Although KRS 342.185 would seem to
provide the claimant with another year in which to bring claims
arising out of the same incident, KRS 342.270(1) in fact would
bar the claimant from bringing any additional claims arising out
of the same incident.
Thus, the two-year statute of limitations
for workers’ compensation claims is not absolute and does not
render arbitrary or capricious the ALJ’s decision not to allow
Martin to amend his claim.
The opinion of the Workers’ Compensation Board is
reversed, and this matter is remanded to the Board for
reinstatement of the ALJ’s opinion and award.
DYCHE, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
W. Barry Lewis
Hazard, Kentucky
BRIEF FOR APPELLEE EARL
MARTIN:
Miller Kent Carter
Pikeville, 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.