ALLENE HALL v. HOSPITALITY RESOURCES, INC.; SPECIAL FUND; HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
JANUARY 12, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001887-WC
ALLENE HALL
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-95-35309
v.
HOSPITALITY RESOURCES, INC.;
SPECIAL FUND; HON. RICHARD M.
JOINER, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.
GUIDUGLI1 AND JOHNSON,2 JUDGES; HUDDLESTON,3 SENIOR
JOHNSON, JUDGE:
Allene Hall has petitioned this Court for
review of a decision of the Workers’ Compensation Board entered
1
Judge Daniel T. Guidugli concurred in this opinion prior to the expiration
of his term of office on December 31, 2006. Release of the opinion was
delayed by administrative handling.
2
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
3
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
on August 12, 2005, which reversed a September 17, 2004, opinion
and award of the Administrative Law Judge (ALJ) on the basis
that Hall’s motion to reopen was time-barred pursuant to the
four-year limitation on reopening in KRS 342.125(3).
Having
concluded that the Board did not overlook or misconstrue
controlling statutes or precedents,4 we affirm.
Hall was injured at work on April 9, 1995.
Her
workers’ compensation claim was settled by agreement based upon
a 60% occupational disability.
The settlement agreement was
approved by an ALJ on July 22, 1997.
On January 16, 2001, Hall filed a motion styled as a
“Motion to Reinstate TTD Benefits.”
In her motion, Hall stated
that she had undergone an anterior cervical discectomy at C5-C6
and C6-C7 on December 6, 2000, and that as a result of the
surgery she was temporarily totally disabled.
She requested
that her TTD benefits be reinstated beginning on December 7,
2000, and continue until she reached maximum medical recovery.
In support of her motion, Hall attached medical records from Dr.
David L. Weinsweig in regard to the surgery as well as a copy of
the July 22, 1997, settlement agreement showing her weekly TTD
benefits in the amount of $415.94.
Hospitality responded to Hall’s motion on January 25,
2001, and on February 14, 2001, an order was entered by the
4
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
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Chief Administrative Law Judge(CALJ) reinstating Hall’s TTD
benefits as requested in the motion.
Hall was also ordered to
submit status reports on her condition every 30 days and to
submit evidence of maximum medical recovery upon receipt of such
information.
On May 13, 2002, Hospitality filed a motion to
discontinue TTD benefits on the basis that Hall had reached
maximum medical recovery pursuant to a medical report from Dr.
Christopher Stephens.
Hall did not file a response to
Hospitality’s motion, and on June 7, 2002, the CALJ entered an
order permitting Hospitality to discontinue TTD benefits.
No further action occurred on this claim until
November 7, 2003, at which time Hall filed a “Motion to Reopen.”
In this motion, Hall stated that she had had the December 2000,
surgery and had been paid TTD benefits through June 2002.
She
further alleged that her disability had increased and she was
now totally disabled.
Hall attached medical reports from Dr.
Stephens5 as well as a medical report from Dr. Debra Hall in
support of her increase in disability.
Additionally, Hall
attached an affidavit stating that “no previous motion to reopen
has been filed” and attached an executed medical waiver and
consent form.
Hospitality responded to Hall’s motion to reopen on
November 20, 2003, and asserted that the motion was barred by
5
This is the same medical report Hospitality submitted in support of its
motion to discontinue TTD benefits.
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the four-year statute of limitation contained in KRS 342.125(3)
and (8).
Hospitality argued that because the settlement
agreement was approved on July 22, 1997, Hall had until July 22,
2001, in which to file a motion to reopen the claim.
Hall filed
a response to Hospitality’s response on December 2, 2003, which
merely stated that Hall had been paid TTD benefits through June
7, 2002, and asked that Hospitality’s request for dismissal of
the motion to reopen be denied.
On December 30, 2003, the CALJ entered an order
denying Hall’s motion to reopen on the basis that it was
untimely filed.
Thereafter, Hall filed a petition for
reconsideration asserting that the November 7, 2003, motion to
reopen had been erroneously styled, and that Hall had actually
sought a reopening of the claim through the motion to reinstate
TTD benefits which had been filed on January 16, 2001.
As such,
Hall contended that the claim had actually been reopened for all
purposes permitted by KRS 342.125 by the CALJ’s February 14,
2001, order reinstating TTD benefits.
Hospitality filed an
objection to Hall’s petition for reconsideration on January 28,
2004, claiming that the CALJ’s December 30, 2003, order denying
Hall’s motion to reopen was correct and that the motion was
time-barred.
In an order entered on February 20, 2004, the CALJ
ruled that Hall’s November 7, 2003, motion to reopen and the
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order entered on December 30, 2003, denying the motion were
moot, and that the claim was reopened as of February 14, 2001.
Proof time was then set and the claim was assigned to the ALJ
for a decision on the merits.
On September 17, 2004, the ALJ entered an opinion and
award.
The ALJ determined that the CALJ had appropriately
decided that the claim was reopened on February 14, 2001, within
the four-year period permitted by KRS 342.125(3) and (8).
The
ALJ then found Hall had experienced a change in her medical
condition and that Hall was now permanently totally disabled.
Hospitality filed a petition for reconsideration, again raising
the issue of whether the motion to reopen was timely filed.
In
denying the petition, the ALJ stated “[t]he record in this case
clearly shows that the [CALJ] has ruled that the claim was
reopened on February 14, 2001.
This was made well before the
[o]pinion and [a]ward entered on September 17, 2004[,] and, if
error, is contained in a prior order.”
Hospitality then filed an appeal of the ALJ’s opinion
and award with the Board asserting that it was error to find
that Hall’s motion to reopen had been timely filed.
In a
unanimous opinion entered on August 12, 2005, the Board reversed
the decision of the ALJ that Hall had timely filed her motion to
reopen the claim and remanded the matter for entry of an order
-5-
of dismissal.
Hall now petitions this Court to reverse the
opinion of the Board and to reinstate the award of the ALJ.
Hall argues that when TTD benefits have been ordered
paid pending the claimant’s reaching maximum medical recovery,
and the benefits continue to be paid past the four-year
limitation period for reopening a claim under KRS 342.125(3),
the claim must be viewed as reopened for all other relief
including an increase in the award of disability.
We disagree.
KRS 342.125(3) provides as follows:
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, or seeking
temporary total disability benefits
during the period of an award, no claim
shall be reopened more than four (4)
years following the date of the
original award or order granting or
denying benefits, and no party may file
a motion to reopen within one (1) year
of any previous motion to reopen by the
same party [emphases added].
Thus, based upon the plain language of the statute, a
motion to reopen for the purposes of seeking TTD benefits during
the period of the award is excepted from the four-year statute of
limitation on reopening for the purposes of seeking an increase
in the award of disability.
As such, the fact that a claimant
has been awarded TTD benefits by an ALJ has no impact on a claim
-6-
for an increase in the award of disability.
In fact, pursuant to
the statute, a claimant may seek TTD benefits more than four
years after the original order granting or denying benefits even
though a claim for an increase in the award is time-barred.
We also disagree with Hall’s assertion that she could
not have filed a motion to reopen for an increase in the award of
permanent disability prior to the expiration of the four-year
period.
Nothing in the statute prohibits a claimant from filing
such a motion even though maximum medical recovery has not been
achieved.
To the contrary, such a motion could be filed and held
in abeyance pending the claimant’s reaching maximum medical
recovery, at which time proof could be taken regarding any
increase in the permanent disability award.
In Kendrick v. Toyota,6 the claimant asserted that the
post-award, voluntary payment of TTD benefits extended the fouryear limitation period in KRS 342.125(3), and that during the
period of payment of TTD benefits a motion to reopen could not be
filed because there would be nothing to adjudicate.
This Court
held that the limitation period contained in KRS 342.125(3) was a
specific statute of limitation with the intended purpose of
cutting off all reopenings after four years subject to the
enumerated exceptions contained in the statute, such as seeking
6
145 S.W.3d 422 (Ky.App. 2004).
-7-
TTD benefits during the period of the award.7
Thus, the four-
year limitation period barred the filing of the motion to reopen
for an increase in disability, even though TTD benefits had been
paid beyond the four-year period.
Accordingly, because Hall did
not file her motion to reopen for an increase in the permanent
disability award until November 7, 2003, more than four years
after the settlement of her claim was approved, it was untimely.
We also agree with the Board that Hall’s November 2003,
motion to reopen was procedurally independent from her January
2001, motion to reinstate TTD benefits.
The January 2001, motion
was granted by the CALJ’s order entered on February 14, 2001, and
the TTD issue was resolved completely by the CALJ’s subsequent
order entered on June 7, 2002, discontinuing TTD benefits.
A
written order which adjudicates all the rights of all the parties
to an action is a final order and is appealable.8
Because the
June 7, 2002, order was final and appealable, it terminated the
TTD proceeding and the November 2003, motion to reopen was an
independent motion which was untimely because it was filed more
than four years after the date of the original award.
Based upon the foregoing, the opinion of the Workers’
Compensation Board reversing and remanding the opinion and award
by the ALJ is affirmed.
7
Kendrick, 145 S.W.3d at 424-25.
8
Kentucky Rules of Civil Procedure (CR) 54.01; 803 Kentucky Administrative
Regulations (KAR) 25:010 § 21(2)(a) and (b).
-8-
ALL CONCUR.
BRIEF FOR APPELLANT:
Arnold Turner, Jr.
Prestonsburg, Kentucky
BRIEF FOR APPELLEE,
HOSPITALITY RESOUCES:
David L. Murphy
Louisville, Kentucky
BRIEF FOR APPELLEE, SPECIAL
FUND:
Robert L. Whittaker
Frankfort, Kentucky
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