THOMAS GREENE v. PASCHALL TRUCK LINES; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: OCTOBER 26, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001974-WC
THOMAS GREENE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-83879
PASCHALL TRUCK LINES; HON. R. SCOTT
BORDERS, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: NICKELL AND TAYLOR, JUDGES; PAISLEY,1 SENIOR JUDGE.
NICKELL, JUDGE: Thomas Greene (hereinafter “Greene”) seeks review of an August
15, 2006, opinion of the Workers' Compensation Board (hereinafter “Board”) affirming a
1
Senior Judge Lewis G. Paisley 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.
February 10, 2006, opinion of Administrative Law Judge Hon. R. Scott Borders
(hereinafter “the ALJ”). The ALJ’s opinion dismissed Greene's claim for permanent
disability income benefits and granted partial future medical benefits for injuries arising
from a work-related collision. The ALJ also declined to review, citing a lack of
jurisdiction, an agreement reached between Greene and his former employer, Paschall
Truck Lines (hereinafter “PTL”), pertaining to payment of a subrogation lien. A petition
for reconsideration filed by Greene was summarily dismissed by the ALJ on March 13,
2006. The Board then affirmed the ALJ's decision in all respects and this appeal ensued.
For the reasons explained herein, we affirm that portion of the Board's
opinion dismissing Greene’s claim for permanent disability income benefits. We further
affirm the Board’s opinion limiting PTL's responsibility for future medical expenses to
the ongoing removal of glass as it works its way to the surface of Greene’s skin.
However, because we hold the ALJ had jurisdiction to review the settlement agreement
reached between Greene and PTL, but declined to exercise it, we vacate that portion of
the opinion and remand it to the Board for further proceedings.
Between 1996 and September 2005, Thomas Greene was a truck driver for
PTL. He was hired at PTL's hub in Murray, Kentucky, and it is from that office that he
was routinely dispatched to make deliveries along the eastern seaboard. Occasionally he
took a leave of absence from PTL to spend time with his daughter. When not driving for
PTL, he often worked as a certified union millwright through Fru-Con in his native
Louisiana. Each time Greene resumed driving for PTL he completed employee
-2-
orientation2 in Murray and signed paperwork specifying any work-related injury would
be resolved under Kentucky law regardless of where it occurred.
On May 20, 2003, while Greene was driving a PTL semi in North Carolina,
he collided with an axle that had separated from a semi being driven by Cathy Maddox
(hereinafter “Maddox”) on behalf of US Xpress. As a result, Greene's rig careened down
an embankment and landed upside down in the grass. He remained pinned inside the
crushed cab for about three hours until he was cut from the vehicle and transported to a
North Carolina medical center. Greene suffered cuts and lacerations over much of his
upper body and was diagnosed as having a fractured left scapula and a fractured left
wrist. After an overnight hospital stay, Greene was transported to Louisiana to recover.
Greene was treated by two doctors in Louisiana. Dr. Harold Stokes
(hereinafter “Dr. Stokes”), a hand surgeon, provided treatment for Greene's wrists,
forearms, hands and elbows. At the first appointment in June 2003 Greene’s chief
complaints were a chip in his left wrist, a fracture of his left scapula, pain in his left wrist
and arm, and numbness and tingling in the left long, ring and small fingers. Concern
about the distal ulna and the distal radioulnar joint was also mentioned. Upon completing
a physical therapy and strengthening regimen Greene enjoyed full range of motion in his
forearms, elbows and wrists. In releasing Greene to return to work without restriction as
of September 15, 2003, Dr. Stokes opined, “I will see him back as needed. I do not
anticipate any permanent partial impairment related to his wrists or hands.”
2
Greene testified he completed employee orientation four separate times.
-3-
Dr. John Cazale (hereinafter “Dr. Cazale”), an orthopaedic surgeon, treated
Greene's complaints of bilateral shoulder pain. At Greene's first appointment in July
2003 he exhibited a full range of motion with his right shoulder and nearly a full range of
motion with his left. By August 15, 2003, an MRI scan of his right shoulder revealed no
significant abnormality and Dr. Cazale deemed it “completely normal.” The MRI scan of
Greene's left shoulder showed no rotator cuff tear and no anatomic lesions. Some
arthritis was noted but not attributed to the collision. Dr. Cazale prescribed Vioxx as an
anti-inflammatory and ordered supervised physical therapy to improve Greene’s shoulder
strength. By September 23, 2003, an MRI scan of the left shoulder showed only “some
mild degenerative joint disease in his AC joint.” On October 23, 2003, Dr. Cazale
ordered more physical therapy believing Greene would reach maximum medical
improvement (hereinafter “MMI”) within four to six weeks and could return to work as a
trucker.
A week later, Dr. Gordon Nutik (hereinafter “Dr. Nutik”) performed an
independent medical evaluation (hereinafter “IME”) at the request of PTL's workers'
compensation insurance carrier.3 Dr. Nutik’s examination of Greene's neck revealed
normal cervical lordosis. While there was pain about the muscles adjacent to the base of
his neck on palpation, there was no pain about the cervical spine or the sternomastoid
muscle. There was also no spasm of Greene's neck muscles. Indeed, Greene’s neck
3
American Casualty Company of Reading is PTL's Kentucky workers' compensation insurance
carrier. CNA/ClaimPlus (hereinafter “CNA”) is the third-party administrator for American
Casualty Company. Francesca Clayton (hereinafter “Clayton”) is the CNA Recovery Specialist
who handled Greene's case.
-4-
motion was normal and his cervical compression tests were negative. Dr. Cazale
concurred with Dr. Nutik’s recommendation of a four-week conditioning program for
Greene. Like Dr. Cazale, Dr. Nutik expected Greene to reach MMI upon completion of
the physical therapy and conditioning program.
On November 11, 2003, Dr. Cazale wrote, “I don’t anticipate any sequela
secondary to his injury as far as his shoulders are concerned. Again, his physical
examination reveals a normal neurological exam.” When Dr. Cazale last saw Greene on
December 16, 2003, his examination revealed “some crepitance with range of motion in
shoulders” and “discomfort with cold with the extremes of weather.” Dr. Cazale noted
Greene’s physical therapy and functional capacity evaluation indicated Greene could
return to work as a trucker. Indeed, when Greene's physical therapy ceased in December
2003 his therapist opined, “All goals are achieved.” Dr. Cazale discharged Greene to
return to work with no restrictions as of January 5, 2004.
None of the doctors who treated or evaluated Greene in the six months
following the collision saw him after he was released to return to work. Greene testified
that in July 2004 he passed a physical exam needed to maintain his commercial driver’s
license (hereinafter “CDL”), but no records from that exam were introduced into the
record. The only medical treatment Greene has received since being released to return to
work occurred on November 11, 2004. On that date he went to a Louisiana emergency
room to have glass removed from his hand. Glass from the shattered windshield of the
-5-
cab continues to erupt from his skin and requires occasional removal. Greene is not
taking prescription medication but he does take over-the-counter painkillers.
Greene did not see another doctor until August 2005 when Dr. Emily
Rayes-Prince (hereinafter “Dr. Rayes-Prince”) performed an IME at the request of
Greene's workers’ compensation attorney. After reviewing medical records and
examining Greene, she diagnosed him as having “chronic neck pain with left arm
radicular pain; post traumatic tension migraine headaches; S/P [sic] left ulnar styloid
fracture; and s/p left scapula fracture with residual shoulder crepitus and scapula
dyskinesis.” Citing the American Medical Association Guides to Evaluation of
Permanent Impairment (hereinafter “Guides”), she assessed Greene with a 7%
Diagnosis-Related Estimate Cervical Category II (hereinafter “DRE”) whole person
impairment rating which she attributed to the collision. Despite the rating, Dr. RayesPrince believed Greene could return to work as a trucker. In explaining her assessment
she opined in pertinent part, “Mr. Greene has neck pain and left arm radicular complaints
without objective findings.”
PTL voluntarily paid Greene $18,693.64 in temporary total disability
(hereinafter “TTD”) benefits for the period of May 21, 2003, through January 14, 2004.
PTL also paid Greene's medical expenses in the amount of $24,444.80. Because
Greene’s workers’ compensation file was already closed when Greene went to the
emergency room for removal of glass from his hand in November 2004, PTL refused to
pay the charges associated with that procedure.
-6-
Although Greene was released by Dr. Cazale to resume driving a truck as
of January 5, 2004, he did not. He chose instead to remain in Louisiana and work as a
millwright at the Folger's Coffee plant in New Orleans. In July 2004 he returned to PTL
and resumed driving a truck but voluntarily left just three months later. While he
considered himself physically capable of driving a semi, Greene feared driving on snow
and ice during the approaching winter months.
Between January and August 2005 Greene worked steadily as a millwright,
most recently as night foreman of an eleven-person mechanical maintenance crew.
During his deposition, Greene acknowledged some work at the plant was “very heavy”
but explained that as a supervisor he now engages in very little manual labor and uses a
golf cart to traverse the facility which is about a dozen blocks long and three or four
blocks wide. At the final hearing in December 2005 Greene testified he still had pain,
“especially in cool, damp weather, through my shoulder, up through the back of my neck,
and I still have pretty frequent headaches.”
Greene retained Hon. Richard J. Smith (hereinafter “Smith”), an attorney
practicing in Spartanburg, South Carolina, to pursue a third-party tort action against US
Xpress and Maddox for causing the accident in North Carolina. Smith notified CNA of
Greene's intention to file a civil suit and in July 2004 Clayton asserted a subrogation lien
on behalf of PTL for $43,138.44.4 Clayton's letter cited the North Carolina Workers'
4
According to Clayton’s letter of July 16, 2004, this amount represented $24,444.80 in paid
medical expenses and $18,693.64 in TTD benefits.
-7-
Compensation Act as authority for the lien.5 On August 23, 2004, Smith offered PTL a
lump sum payment of $20,000.00 plus a “clincher document” to be signed by Greene
releasing PTL from any and all future workers' compensation claims stemming from the
collision. PTL apparently had no interest in the clincher document and pressed instead
for the full amount of the lien.
On September 14, 2004, without filing suit, Smith negotiated a $150,000.00
compromise settlement between Greene, US Xpress and Maddox. As part of the
settlement signed that day, Greene released US Xpress and Maddox from all claims
arising from the collision and agreed in pertinent part:
to reimburse and indemnify all released parties for any
amounts which any insurance carriers, government entities,
hospitals or other persons or organizations may recover from
them in reimbursement and indemnity for amounts paid to
me/us or on my/our behalf as a result of this accident by way
of contribution, subrogation, indemnity or otherwise.
On September 14, 2004, Smith advised Clayton of the compromise settlement of
Greene’s tort action against US Xpress and Maddox. Smith also confirmed a second
agreement, this time between Greene and PTL, for $29,450.66 (plus a portion of two
5
Although Greene signed a document at the time he was hired by PTL agreeing that any
workers' compensation claim would be resolved under Kentucky law, the subrogation lien
between Greene and PTL was settled under North Carolina law. Kentucky Revised Statutes
(KRS) 342.700 requires all legal fees expended by an employee in pursuit of a tort recovery from
a third party to be paid from any subrogation lien recovery due the employer. Under North
Carolina law, however, the employer is responsible for only one-third of the employee's legal
fees. North Carolina General Statutes Annotated (N.C.G.S.A.) §97-10.2. The reason Greene
and PTL applied North Carolina law, in contravention of the document signed by Greene at the
time of hire by PTL, is unclear from the record. Under KRS 342.700, PTL’s entire subrogation
lien would have been negated because the lien amount ($43,138.44) was less than the legal fee
($50,000.00) charged by Smith.
-8-
additional medical bills) in full satisfaction of the original $43,138.44 subrogation claim.
Smith drafted the release under which PTL would receive two-thirds of the lien amount
and Greene would keep the remaining third as PTL's share of the attorney fees “pursuant
to the North Carolina statute.” PTL also paid one-half of the costs incurred in the tort
settlement which amounted to less than $100.00. On September 28, 2004, Smith
forwarded a check to Clayton for $28,665.99. On November 12, 2005, Smith forwarded
two additional checks, one for $314.02 and another for $465.65, to Clayton.6 Thus, of the
$150,000.00 personal injury settlement Smith had negotiated with US Xpress and
Maddox, Greene ultimately received a total of $70,367.41.
Greene applied for Kentucky workers' compensation benefits in May 2005.
In his Form 101, Greene claimed the work-related collision of May 20, 2003, had
resulted in numerous injuries, including “multiple cuts & bruises, fractured scapula,
sprained l ankle, chipped part of bone of l wrist, deep tissue/soft tissue muscle damage of
upper torso.” Greene did not mention any neck injury.
Five issues were submitted to the ALJ for resolution: (1) was Greene
entitled to permanent partial disability (hereinafter “PPD”)7 benefits; (2) did the bargain
Smith negotiated with Clayton, whereby PTL agreed to accept only two-thirds of its full
subrogation lien, result in PTL being overpaid since Kentucky law requires an employer
6
Three checks were sent because there were two outstanding medical bills from Greene's
treatment in North Carolina immediately after the collision. The amount of these bills was
known but payment had not been made to the providers when the agreement was signed.
7
KRS 342.0011(11)(b) defines “permanent partial disability” as “the condition of an employee
who, due to an injury, has a permanent disability rating but retains the ability to work[.]”
-9-
to pay an injured worker's entire legal fee and expenses for pursuing a civil action and
Greene paid his attorney more than the amount of PTL's lien; (3) must PTL pay for a
November 2004 emergency room visit for the removal of glass from Greene's hand; (4)
did Greene suffer an “injury” as that term is defined under the Kentucky Workers'
Compensation Act; and (5) is Greene entitled to future medical benefits of his injuries
where both treating doctors released him to return to work without restriction and neither
anticipated the need for future medical care. The ALJ convened a final hearing on
December 14, 2005. In addition to Greene’s live testimony at the hearing and a transcript
of Greene's earlier deposition, other items before the ALJ included: Greene's medical
records from Drs. Stokes, Cazale, Nutik and Rayes-Prince; medical records from
Greene's hospitalization in North Carolina immediately after the collision; Greene's
physical therapy records; his work and salary history; documentation of TTD benefits
paid to Greene by PTL for the period of May 21, 2003, through January 14, 2004;
Greene's medical bills paid by PTL; the compromise settlement Smith negotiated on
behalf of Greene with US Xpress and Maddox to conclude the tort action;
correspondence between Smith and Clayton documenting the negotiations that resulted in
PTL accepting a reduced amount in full satisfaction of its subrogation lien; and the briefs
submitted by counsel.
The ALJ's opinion was issued on February 10, 2006. The ALJ found
Greene had suffered an “injury” as defined in KRS 342.0011(1)8 because the collision
8
KRS 342.0011(1) defines an “injury” as “any work-related traumatic event or series of
traumatic events, including cumulative trauma, arising out of and in the course of employment
which is the proximate cause producing a harmful change in the human organism evidenced by
- 10 -
that fractured Greene's left wrist and left scapula and caused numerous cuts and
lacerations about his upper body was a traumatic event. However, the ALJ dismissed
Greene’s claim for PPD benefits since none of the three doctors who treated or evaluated
Greene during the six months immediately following the collision had assessed any
functional impairment rating in accordance with the Guides or had imposed any
permanent work restrictions. The ALJ noted that Dr. Rayes-Prince’s IME was performed
on August 26, 2005, more than two years after the collision, and that her assessment of an
impairment rating arose with regard to Greene’s cervical condition without objective
findings. The ALJ further noted none of the treating doctors had ever diagnosed Greene
with a work-related cervical condition. Since Greene’s cervical complaints did not
surface until late in 2005, the ALJ found the medical opinions of Drs. Stokes, Cazale and
Nutik to be more persuasive. Thus, the ALJ was unconvinced Greene had suffered any
PPD as a result of the collision.
The ALJ found PTL liable for Greene's November 2004 trip to the
emergency room for the removal of glass from his hand since the glass had become
embedded when the windshield shattered during the collision. He further found PTL
liable for any future medical expenses incurred for the removal of any additional
embedded glass. The ALJ denied Greene’s claim for any other future medical benefits
citing: both Drs. Stokes and Cazale released Greene to return to work without any
restrictions; Greene was not currently under a doctor's care; Greene had not seen a doctor
objective medical findings.” The term “injury” does not include “the effects of the natural aging
process[.]”
- 11 -
because of the collision since being released to return to work in January 2005; and,
Greene had not sought prescription medication and only occasionally resorted to treating
himself with over-the-counter pain pills.
Finally, claiming a lack of jurisdiction, the ALJ declined to review the
negotiated settlement reached between Greene's attorney and PTL to satisfy the
subrogation lien. By characterizing this agreement as part of the tort recovery rather than
a subrogation issue, the ALJ found it to be outside his delegated statutory authority under
KRS Chapter 342. Thus, he did not address whether the agreement should have been
submitted for approval as required by KRS 342.265, nor did he consider whether PTL
should have recovered any portion of its subrogation lien. Even so, the ALJ did find that
Greene’s civil tort attorney negotiated the signed agreement with PTL's insurance carrier;
that as a result of those negotiations the carrier reduced its actual lien amount by onethird to offset Greene's legal fees and paid one-half of the costs expended in reaching the
agreement; that the civil action had been “litigated”9 in North Carolina rather than
Kentucky; and that the agreement had been reached in good faith.
Dissatisfied with the ALJ’s opinion, Greene filed a petition for
reconsideration. First, Greene argued the ALJ had jurisdiction to review the alleged
mistaken overpayment on the subrogation lien under Whitaker v. Hardin, 32 S.W.3d 497
(Ky. 2000). He asserted the ALJ had erred by failing to make a specific finding on
9
This is a factual misstatement. Smith negotiated the tort settlement on behalf of Greene
against US Xpress and Maddox without filing suit. There was no litigation. Further, the terms
of the compromise settlement are not in dispute.
- 12 -
whether the agreement between Greene and PTL would “pass muster” under KRS
342.26510 since it was never submitted to the ALJ for approval as required by that statute.
Second, Greene argued the ALJ had erred in finding that the subrogation agreement had
been negotiated in good faith. He noted that the subrogation agreement had been based
in significant part upon an application of North Carolina law even though PTL had
required Greene to sign papers at the time of hire agreeing that Kentucky law would
apply to any work-related injury. Third, Greene argued the ALJ had erred in restricting
PTL’s liability for future medical expenses to the removal of embedded glass since
undisputed medical evidence had established that Greene had suffered two fractures in
the collision and no doctor had ever expressly opined that those fractures, although
healed, would require no future care. Furthermore, Greene asserted that Dr. RayesPrince’s diagnosis of a work-related cervical condition and her recommendation for an
MRI scan to determine the extent of the untreated injury were uncontroverted.
In opposing the petition for reconsideration, PTL argued Greene was
simply repeating his previously asserted unpersuasive arguments and asking the ALJ to
save him from the poor bargain his own civil tort attorney had negotiated on his behalf.
PTL further argued the ALJ’s denial of future medical expenses was correct because the
medical records and reports of Drs. Stokes, Cazale and Nutik provided support for his
10
KRS 342.265(1) reads in pertinent part: “If the employee and employer and special fund or
any of them reach an agreement conforming to the provisions of this chapter in regard to
compensation, a memorandum of the agreement signed by the parties or their representatives
shall be filed with the executive director, and, if approved by an administrative law judge, shall
be enforceable pursuant to KRS 342.305.”
- 13 -
finding that Greene had returned to his pre-injury health status and would not reasonably
be expected to require further medical treatment apart from the occasional removal of
embedded glass.
Upon denial of the petition for reconsideration, Greene appealed to the
Board which affirmed the ALJ on all issues. This appeal followed.
I. THE SUBROGATION LIEN AGREEMENT
BETWEEN GREENE AND PTL
Greene’s first contention is that since the agreement he reached with PTL
sought to resolve the Kentucky workers’ compensation subrogation lien the ALJ
obviously had jurisdiction to review its terms and wrongly declined to do so. In
response, PTL argues that Greene is really asking the ALJ to relieve him from the terms
of a bad bargain negotiated by his civil tort attorney.11
As a reviewing court, we give great deference to the Board's decision.
However, we must intervene when the Board “overlook[s] or misconstrue[s] controlling
statutes or precedent, or commit[s] an error in assessing the evidence so flagrant as to
cause gross injustice.” Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992). From our reading of the Kentucky Workers’ Compensation Act, and specifically
KRS 342.265 and 342.700(1), we agree with Greene. PTL cannot reasonably claim
ignorance of the statutory requirement that any agreement relating to compensation be
submitted to an ALJ for approval under Kentucky workers’ compensation law since PTL,
11
In its brief to the Board, PTL argued the ALJ’s opinion should not be read as saying he lacked
jurisdiction to review the agreement between Greene and PTL. Instead, PTL characterized the
ALJ’s words as a “disinclination to disturb the agreement reached by the parties.”
- 14 -
itself, made Greene’s acceptance of such applicable law a condition of employment. Nor
can PTL now reasonably claim prejudice by being held accountable to the clear mandates
of the statutory law it chose to apply. The ALJ was authorized to review the parties’
subrogation lien and was required to do so. For the reasons explained below, we vacate
and remand this issue to the Board for further proceedings consistent with this opinion.
In its opinion, the Board correctly recognizes PTL had a statutory right to
subrogation under KRS 342.700(1)12 because the collision that injured its employee was
caused by the negligence of US Xpress and its driver, Maddox. However, it is what the
Board said next that we find troubling. In reaching its conclusion the Board wrote,
. . . tort damages awarded for lost earning capacity or medical
expenses, while subject to statutory subrogation, nonetheless
remain tort damages paid outside the domain of the Workers'
Compensation Act. The jurisdiction of administrative
agencies, such as the Office of Workers' Claims and the
Workers' Compensation Board, extend only to those matters
that are delegated to them by the legislature. Custard Ins.
Adjusters, Inc. v. Aldridge, 57 S.W.3d 284 (Ky. 2001). In
situations where a fact finder in the civil action has not
decided allocation of tort damages, an ALJ, as the fact finder
in the workers' compensation case, may make such findings,
but only for purposes of determining an employer's statutory
subrogation credit and its effect, if any, on payment of
workers' compensation benefits. Whitaker v. Hardin, 32
S.W.3d 497 (Ky. 2000). The ALJ, however, lacks any
discretion to decide matters concerning the resolution of the
third-party tort action, including the approval of settlements
12
The relevant statutory language in KRS 342.700(1) reads, “If compensation is awarded under
this chapter, the employer, his insurance carrier, the special fund, and the uninsured employer's
fund, or any of them, having paid the compensation or having become liable therefor, may
recover in his or its own name or that of the injured employee from the other person in whom
legal liability for damages exists, not to exceed the indemnity paid and payable to the injured
employee, less the employee's legal fees and expense.” (Emphasis added).
- 15 -
made between two or more parties as participants in that
action.
Where the corresponding tort claim is resolved through
settlement, the signed agreement or release represents a
contract reached between the injured employee, employer or
workers' compensation insurer with the tortfeasor. Other than
for purposes of establishing the parameters of the subrogation
credit so as to preclude double recovery, the tort settlement
has no effect whatsoever on the relationship or obligations
that exist between either the employer or its carrier and the
injured worker whose claim is the subject of a workers'
compensation proceeding. Hence, the amount of recovery
collected from a third-party tortfeasor, whether by verdict or
settlement, is solely a matter within the jurisdiction of the
courts and beyond the scope of authority of an ALJ and this
Board.
In line with this reasoning, we must conclude that the
settlement for $29,450.66 in full satisfaction of the American
Casualty's workers' compensation lien of $43,138.44 was not
subject to ALJ approval pursuant to KRS 342.265(1).
Greene, in the release provided to Maddox and U.S. Xpress,
in exchange for $150,000.00, agreed “to reimburse and
indemnify all released parties for any amounts which any
insurance carriers, government entities, hospitals or other
persons or organizations may recover from them in
reimbursement for amounts paid to me/us or on my/our behalf
as a result of this accident by way of contribution,
subrogation, indemnity or otherwise.” In so doing, he
assumed any liability the third-party tortfeasors owed PTL
and American Casualty. Consequently, the subsequent
agreement reached by the petitioner with American Casualty
constituted part of the resolution of Greene's North Carolina
tort action against US Xpress and Maddox, and not part of his
workers' compensation claim filed later in Kentucky. The
fact that Greene, in hindsight, entered into a bad bargain
using a significant portion of his tort damages to satisfy a
subrogation credit that would have ultimately been consumed
entirely by the attorney fee paid to his North Carolina lawyers
does not now confer jurisdiction upon the ALJ in his
Kentucky workers' compensation case to either approve or
rescind the agreement. See AIK Selective Self-Insurance
Fund v. Minton, 192 S.W.3d 415 (Ky. 2006); AIK Selective
- 16 -
Self Insurance Fund v. Bush, [74 S.W.3d 251 (Ky. 2002)].
That is precisely what the ALJ ruled below. Hence, we find
no error.
While individual statements within the Board’s opinion are accurate, we cannot accept
the Board's analysis and ultimate conclusion.
We agree with the Board’s opening premise that tort damages paid by a
tortfeasor to an employee, employer or employer’s carrier are paid outside the Workers’
Compensation Act and only a court may review them. However, we do not agree that the
use of tort recovery funds to pay an employer’s subrogation lien somehow converts
questions about the amount of subrogation due the employer into part and parcel of the
tort claim. Nor do we agree that an employee and his employer’s workers’ compensation
carrier, simply by reaching a settlement, can transform a subrogation issue that would
normally be within the jurisdiction of an ALJ into a tort issue that can only be reviewed
by a trial court. Under the present circumstances, we cannot envision a scenario in which
a court would exercise jurisdiction over the workers’ compensation subrogation issues
posed by Greene. In light of Kentucky’s statutory scheme, it is wholly appropriate that
the ALJ review the terms of the agreement between Greene and PTL’s carrier.
KRS 342.325 plainly states, “[a]ll questions arising under this chapter, if
not settled by agreement of the parties interested therein, with the approval of the
administrative law judge, shall be determined by the administrative law judge except as
otherwise provided in this chapter.” (Emphasis added). The ALJ is the ultimate arbiter
when it comes to resolving workers’ compensation subrogation issues. Thus, parties
- 17 -
have two options. Either they settle the matter betwixt themselves and submit a signed
agreement to the ALJ for approval,13 or the ALJ will resolve the matter for them. Either
way, the ALJ is charged with ensuring the terms of the workers’ compensation
subrogation are statutorily correct. Hence, while parties may bargain with one another,
and even make bad bargains, they must still adhere to the statutory scheme set forth in
KRS Chapter 342.
Our reading of KRS 342.325 is consistent with Whitaker v. Hardin, supra,
32 S.W.3d at 499, wherein our Supreme Court states in pertinent part, “The right to
subrogation credit in a workers' compensation case is purely statutory. See KRS 342.700.
Thus, because the statutory right to subrogation falls within the workers' compensation
chapter, then by definition, the administrative law judge has jurisdiction to resolve any
subrogation issues.” Applying KRS 342.325 to the matter at hand, the ALJ was
authorized to determine whether PTL was responsible for paying all of Greene’s legal
fees or just a portion of them prior to being entitled to reimbursement of its subrogation
lien and whether the parties’ settlement agreement incorrectly resulted in Greene
overpaying PTL. Thus, the ALJ erred in declining to exercise jurisdiction and the Board
erroneously affirmed that decision.
We recognize tort recovery is an issue for the courts and workers’
compensation subrogation recovery is a matter for the ALJ. We also agree with the
Board that the tort settlement reached on behalf of Greene with US Xpress and Maddox
13
No Form 110, Agreement as to Compensation and Order, was ever filed by the parties with
the Office of Workers’ Claims.
- 18 -
was not reviewable by the ALJ. However, in the case before us there are no complaints
concerning the terms of the tort settlement and the ALJ was never asked to review that
document. In the case sub judice, the ALJ was asked to review a second, separate
agreement made between Greene and PTL’s insurance carrier, the sole purpose of which
was to specify how much reimbursement, if any, PTL would recover on its workers’
compensation subrogation lien. While PTL’s opportunity to recover its subrogation lien
exists because Greene, through counsel, successfully negotiated a compromise settlement
with negligent third-party tortfeasors, PTL’s right to recover its subrogation lien is
“purely statutory” and therefore the ALJ should have reviewed the subrogation
overpayment claim. Whitaker, supra.
The Board held the subrogation lien agreement did not require approval by
the ALJ as discussed in KRS 342.265(1) because in the tort settlement with US Xpress
and Maddox, Greene accepted personal responsibility for any subrogation lien owed to
PTL or its carrier. While this release extinguished any future financial responsibility for
US Xpress and Maddox stemming from the collision, it did not transform PTL’s statutory
right to subrogation into part of the already concluded tort recovery. Once the civil tort
claim was over, Greene’s attorney focused on settling the subrogation agreement with
PTL's workers’ compensation carrier. It is this second agreement that should have been,
but was not, submitted to the ALJ for approval under KRS 342.265. Perhaps if the
agreement had been submitted to the ALJ for review prior to Greene making the alleged
overpayment about which he complains today, the rationale for applying Kentucky law
- 19 -
some of the time and North Carolina law the rest of the time, in clear contravention of the
employment agreement, would have been discovered, questioned and addressed.
The Board’s attitude seems to be that Greene, with the assistance of
counsel, made a bad bargain and it is not the role of the ALJ to review the bargain he
made. We cannot disagree more. An ALJ is not a rubber stamp, nor is he a “potted
plant.”14 It would appear to us that the ALJ, when conducting a statutorily-mandated
review of a subrogation agreement, must serve as a check and balance to the often
disproportionate power of the parties and insurance carriers. The ALJ can and should
disapprove any agreement submitted for review that does not comport with the beneficent
purpose of the Workers’ Compensation Act. It is the ALJ’s duty to ensure that an
employee’s “right to receive a maximum recovery under the statute must take priority
over the right of the employer/insurer to receive reimbursement for the benefits which it
was already obligated to pay by contract.” Minton, supra at 419.
Twice the ALJ said he did not have jurisdiction to review the workers’
compensation subrogation agreement and the Board agreed. PTL urged the Board to
interpret the ALJ’s unambiguous denial of jurisdiction as really meaning he doubted an
ALJ should disturb a bargain struck between an employer and an injured employee who
was represented by counsel during negotiations. However, close inspection of the precise
words chosen twice by the ALJ reveals no support for PTL's contention.
14
Statement by Hon. Brendan V. Sullivan during his defense of United States Marines
Lieutenant Colonel Oliver North following the Iran-Contra Affair.
- 20 -
PTL also suggested Greene was simply asking the ALJ to relieve him of a
bad bargain. This caused us to wonder whether an employee and his employer, or his
employer's carrier, could defeat the safeguards incorporated into the Kentucky Workers'
Compensation Act by striking a bargain, signing it, not submitting it to an ALJ for
statutorily mandated review, and then fulfilling its terms by sending checks to the
employer. We found the answer in Williams v. Eastern Coal Corp., 952 S.W.2d 696 (Ky.
1997), and hereby hold parties to a subrogation agreement cannot by agreement defeat
the mandatory language of the act. As the Supreme Court of Kentucky explained in
Williams, supra at 698,
[w]orkers' compensation is but one part of an overall system
of wage-loss protection, the purpose of which is to be certain
that income is available to provide the necessities of life for
those affected by physical disability, economic
unemployment, or old age. . . .Workers' compensation is a
creature of statute, and the remedies and procedures described
therein are exclusive. Morrison v. Carbide and Carbon
Chemicals Corp., 278 Ky. 746, 129 S.W.2d 547, 549 (1939).
When an employer and employee submit themselves to the
provisions of the act, their rights and liabilities are henceforth
to be measured by the terms of the act. Id. at 550. A right
created by statute cannot be defeated by the application of a
common law principle. Eversole v. Eversole, 169 Ky. 793,
185 S.W. 487, 488 (1916). Thus, any analysis of a workers'
compensation issue is necessarily an exercise in statutory
interpretation.
Greene and PTL submitted themselves to the terms of the Kentucky Workers’
Compensation Act, therefore they are bound by its requirements, including mandatory
ALJ approval of any subrogation settlement agreement.
- 21 -
That Greene reached an agreement with PTL concerning its workers’
compensation subrogation lien is undisputed. While PTL would have us hold the
agreement did not pertain to “compensation,”15 it clearly did. The sole purpose of the
agreement was to specify how much PTL would be reimbursed, if at all, under its
subrogation lien for paid medical and TTD benefits. Pursuant to Skaggs.v. Wood Mosaic
Corp.,16 428 S.W.2d 617, 619 (1968), “[i]f an agreement is reached in regard to
compensation, a memorandum of it must be filed.”17 See also Continental General Tire
v. Looper, 211 S.W.3d 78, 80 (Ky.App. 2006) (“ALJ’s informed approval was necessary
to give effect to the agreement between counsel in Looper’s case”). Once filed, an
agreement must be reviewed by the ALJ and either rescinded or approved. KRS 342.265.
Here, the agreement, though finalized in 2004, never came before the ALJ until Greene’s
workers’ compensation claim was filed in 2005. At that point Greene had already paid
PTL and the ALJ declined to review the agreement, characterizing it as part of the tort
recovery rather than a subrogation issue. As stated in Skaggs, supra, “[t]he plain purpose
of the statute is that the board be given the opportunity to pass upon the terms of
15
KRS 342.0011(14) defines “compensation” as “all payments made under the provisions of this
chapter representing the sum of income benefits and medical and related benefits.”
16
The question addressed in Skaggs, was whether an agreement was ever reached where the
employer sent checks to the injured worker and the employee cashed them but there was no
formal written acceptance of the settlement for the ALJ to review. Citing Wilson v. SKW Alloys,
Inc., 893 S.W.2d 800, 802 (Ky.App. 1995), the court said the term “agreement” should be
construed liberally to give effect to the statute.
17
Greene’s appellate counsel states that Smith suggested submitting the agreement for approval.
However, our search of the record reveals no written evidence of such a suggestion.
- 22 -
compensation settlements, and thus protect the interests of the workmen.”
In light of the foregoing, we hold an ALJ has jurisdiction and a statutory
mandate to review an agreement reached between an injured employee and his employer
or his employer's carrier that purports to determine how much reimbursement, if any, is
due an employer or its insurance carrier relative to a workers’ compensation subrogation
lien. Because the Board has misconstrued controlling law, we must intervene.
Therefore, we vacate that portion of the Board’s opinion pertaining to the ALJ’s lack of
jurisdiction over the subject subrogation lien and remand this matter to the Board for it to
direct the ALJ to exercise jurisdiction under KRS 342.325 and 342.700 and review the
agreement reached between Greene and PTL. The ALJ shall make findings on whether
the agreement comports with the provisions of the Kentucky Workers' Compensation Act
and whether Greene is entitled to reimbursement from PTL for any overpayment of its
subrogation lien.
II. THE IMPAIRMENT RATING
Greene’s second contention is that the ALJ erred by awarding no PPD
benefits because the 7% impairment rating18 assessed by Dr. Rayes-Prince under the
Guides was uncontradicted. While it is true that Dr. Rayes-Prince was the only doctor to
reference the Guides, PTL argues the ALJ correctly dismissed Greene’s claim for PPD
benefits because the trio of doctors who treated and evaluated Greene in closest
18
Permanent income benefits cannot be awarded absent an impairment rating based upon the
most recent Guides. KRS 342.0011(11)(b).
- 23 -
proximity to the work-related collision unanimously concluded he did not retain any
permanent functional impairment.
Greene bore the burden of proof and the risk of nonpersuasion in
establishing every element of his claim for PPD benefits. Burton v. Foster Wheeler
Corp., 72 S.W.3d 925, 929 (Ky. 2002). Thus, he had to establish three elements to be
entitled to PPD benefits resulting from the May 2003 collision, including: a statutory
injury; an impairment rating pursuant to the Guides; and the ability to work, albeit with
restrictions. KRS 342.0011(11)(b). Greene failed to meet his burden as the proof
demonstrated he could return to his former work as an over-the-road trucker without any
restrictions.
Because Greene failed to convince the ALJ that he sustained any PPD as a
result of the work-related collision of May 20, 2003, on appeal he must demonstrate
evidence “so overwhelming, upon consideration of the entire record, as to have
compelled a finding in his favor.” Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736
(Ky.App. 1984). Evidence that would compel a finding in his favor is that which is “so
overwhelming that no reasonable person could reach the [same] conclusion[.]” REO
Mechanical v. Barnes, 691 S.W.2d 224, 226 (Ky.App. 1985). However, as the ALJ's
findings are supported by the reports of Drs. Stokes, Cazale and Nutik, the record before
us does not compel a different result. Therefore, Greene has failed to demonstrate the
Board “overlooked or misconstrued controlling statutes or precedent, or committed an
- 24 -
error in assessing the evidence so flagrant as to cause gross injustice” and we will not
intervene with regard to this issue. Western Baptist Hosp. v. Kelly, supra at 687-88.
The medical evidence in this case reflected two differing views. When
“medical evidence is conflicting, the question of which evidence to believe is the
exclusive province of the ALJ.” Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky.
1993). The three doctors who treated and evaluated Greene between June 2003 and
December 2003 focused on injuries to his hands and shoulders with most of the
complaints being concentrated on the left side. Following completion of a regimen of
physical therapy, strengthening and conditioning, Drs. Cazale and Stokes released Greene
to return to work without restriction. Neither Dr. Stokes nor Dr. Cazale anticipated the
need for future treatment. Dr. Nutik, the IME requested by PTL’s carrier, agreed and
believed Greene would reach MMI in November 2003. At the conclusion of his
treatment, Greene’s physical therapist noted, “[a]ll goals are achieved.” Based upon this
medical evidence the ALJ found Greene had suffered no PPD.
It is significant that Greene failed to report any complaints of neck pain to
Drs. Stokes, Cazale or Nutik who provided treatment and evaluation in the seven months
immediately following the collision. In fact, Dr. Nutik’s examination specifically
indicated Greene’s neck was normal as of October 2003. It is also noteworthy that
Greene listed no neck injury when he filed his claim in May 2005. Indeed, it was not
until his IME with Dr. Rayes-Prince in August 2005 that she diagnosed Greene with
“chronic neck pain with left arm radicular pain” based on his medical history and
- 25 -
evaluation, and assessed a 7% cervical impairment rating based upon the Guides,
“without objective findings.” Certainly, the ALJ was “not constricted to a myopic view”
of Dr. Rayes-Prince’s diagnosis and assessment of Greene’s cervical condition when her
medical opinions, established so long after the work-related collision, were essentially
based on Greene’s history. Osborne v. Pepsi-Cola, 816 S.W.2d 643 (Ky. 1991). Here,
the ALJ’s findings were adequately supported with facts from the record so as to deal
fairly with both sides and to properly apprise them of the basis for the decision. Shields
v. Pittsburgh and Midway Coal Min. Co., 634 S.W.2d 440, 444 (Ky.App. 1982).
Thus, we disagree with Greene’s suggestion that once a physician assesses
an impairment rating the ALJ must accept it as true. We ascribe no magical
conclusiveness to the assessment of an impairment rating vis-a-vis the overriding weight
of the remaining evidence. An impairment rating is but one piece of the total evidence
that the ALJ, as fact-finder, must evaluate for “quality, character, and substance” and, in
the exercise of his discretion, either accept or reject. Burton, supra at 929. Greene cites
us to Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d
184, 186 (Ky.App. 1981) and Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
However, we find both cases to be distinguishable. In Mengel all the evidence supported
a single finding. That is not the scenario in the case before us. Here, the medical
evidence and opinions expressed in the records and reports of Drs. Stokes, Cazale and
Nutik point toward one conclusion while the medical conclusions of Dr. Rayes-Prince,
drawn more than two years later, point toward an opposite result. This is not a case in
- 26 -
which an ALJ disregarded an uncontradicted medical opinion in order to draw a different
conclusion on his own. Mengel, at 186.
Similarly, Magic Coal Co. is inapplicable to our facts because its analysis
was limited to KRS 342.315(2) which pertains only to occupational disease claims and
the requirement that clinical findings and opinions of university evaluators be given
presumptive weight by an ALJ. Indeed, Magic Coal Co., supra at 91, specifies, “[t]here
is no comparable requirement concerning injury claims[.]” We decline to extend the very
specific language of Magic Coal to the present case by analogy.
We agree with the Board’s conclusion that “the ALJ was free to reject Dr.
Rayes-Prince’s opinion that Greene’s neck pathology was secondary to the accident of
May 20, 2003, the doctor’s reliance on the AMA Guides notwithstanding.” Because the
medical reports from Drs. Stokes, Cazale and Nutik support the ALJ’s finding that
Greene is not functionally impaired due to the work-related collision we do not consider
the disability rating assessed by Dr. Rayes-Prince to be so overwhelming that no
reasonable person could have reached the same conclusion drawn by the ALJ. REO
Mechanical, supra. Therefore, we affirm.
III. AWARD OF PARTIAL FUTURE MEDICAL COVERAGE
Greene’s third and final contention is that the ALJ erred by failing to award
future medical expenses. Intertwined with this issue is whether KRS 342.020 allows an
award of partial future medical coverage since the ALJ ordered PTL to pay only for
- 27 -
future medical costs associated with the removal of glass from Greene’s hand.19 Greene
argues his other work-related injuries, namely a fractured wrist and a fractured scapula,
may require future treatment and the ALJ erroneously foreclosed the employer’s
responsibility for payment of any related medically reasonable and necessary treatment
for those conditions under the act.
Greene claims the act does not recognize the award of partial future
medical benefits. He asserts that since no doctor has specifically opined his left wrist and
left scapula will never need future medical treatment, the ALJ played doctor in drawing
that conclusion. On the other hand, PTL argues Greene’s injuries were only temporary
and since he is now fully recovered, but for the occasional removal of glass, the ALJ
properly restricted PTL’s financial responsibility to the removal of glass and otherwise
dismissed the claim for future medical expenses.
Again, the ALJ enjoys great discretion in considering the weight and
credibility of the evidence. Magic Coal Co. v. Fox, supra at 96. The evidence
establishes Greene suffered a fractured wrist, a fractured scapula and lacerations over
much of his body as a result of the collision. After completing a course of physical
therapy, strengthening, and work conditioning, his two treating physicians, Drs. Stokes
and Cazale, released him to return to work without restriction and neither has seen him
since. Dr. Cazale noted some arthritic change in Greene’s AC joint and Greene said he
experienced some discomfort in extremely cold weather, but otherwise he enjoyed a full
19
The ALJ also ordered PTL to pay for the November 11, 2004, removal of glass from Greene’s
hand.
- 28 -
range of motion on both his right and left sides and his MRI scans were normal. Dr.
Cazale predicted Greene would reach MMI in November 2003. Neither Dr. Stokes nor
Dr. Cazale anticipated Greene would need future medical care as a result of the collision,
although Dr. Stokes did say he would see Greene “as needed.” On October 30, 2003, a
third physician, Dr. Nutik, evaluated Greene's shoulders at the request of CNA. He found
no objective clinical findings and, like Dr. Cazale, anticipated Greene would reach MMI
in four weeks. None of these doctors treated Greene’s cuts and lacerations.
Both Greene and PTL agree the seminal case is Robertson v. United Parcel
Service, 64 S.W.3d 284 (Ky. 2001). Greene argues the facts of his case are
distinguishable while PTL characterizes them as a carbon copy. We agree with PTL.
Robertson worked for both a masonry company and for UPS. While working at UPS,
Robertson claimed he injured his lower back. He missed only a couple days of work at
UPS, but missed three months of work from his masonry job. The ALJ found Robertson
had shown only a temporary flareup of a pre-existing, nonwork-related condition and
incurred no permanent disability. The Board and this Court affirmed the ALJ’s opinion,
as did our Supreme Court, because there was “substantial evidence that the claimant
sustained no permanent disability as a result of the work-related injury and that a
different finding was not compelled.” Robertson, supra at 287 (citing Special Fund v.
Francis, 708 S.W.2d 641, 643 (Ky. 1986)). More specifically, the Supreme Court held:
In other words, the ALJ concluded that the claimant suffered
a work-related injury but that its effect was only transient. It
resulted in no permanent disability or change in the claimant's
pre-existing spondylolisthesis. Thus, the claimant was not
- 29 -
entitled to income benefits for permanent, partial disability or
entitled to future medical expenses, but he was entitled to be
compensated for the medical expenses that were incurred in
treating the temporary flare-up of symptoms that resulted
from the incident.
Id. at 286.
In the case now before us, the evidence is uncontroverted that Greene’s
wrist and scapula were fractured during the work-related collision. However, over the
course of his treatment he regained a full range of motion in both wrists and both
shoulders, his test results were normal, and he was released to return to work without any
restrictions. Based upon these facts, there was substantial evidence to support the ALJ’s
conclusion that Greene did not suffer a permanent disability because of the work-related
collision. Therefore, under Robertson, no award for future medical expense was
compelled, other than for the removal of glass, which represents an ongoing sequela of
the work-related injury.
We see nothing within the Workers’ Compensation Act, or case law to
which we have been cited, prohibiting an ALJ from granting future medical expenses for
a specific work-related injury to the exclusion of others. Here, windshield glass was
embedded in Greene’s body as a result of the work-related collision and would
occasionally erupt through his skin. Thus, it was entirely proper for the ALJ to award
future medical expenses reasonably and necessarily incurred for the removal of glass
extruding from Greene’s skin. However, using the Robertson analysis, the ALJ did not
err in denying future medical expenses for Greene's fractured wrist and fractured scapula
- 30 -
since substantial medical evidence indicated these injuries had fully healed, their
disabling effects were purely transient, and future medical treatment was unforeseen by
treating physicians. Under these supporting facts, the ALJ reasonably concluded Greene
had not sustained any additional work-related injuries reasonably expected to require
future medical treatment. Thus, a contrary finding is not compelled and we affirm the
ALJ’s restriction of future medical damages to those related to the removal of glass.
For the foregoing reasons, we affirm in part, vacate in part and remand to
the Board for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Craig Housman
Housman & Associates
Paducah, Kentucky
R. Chris Hutson
Whitlow, Roberts, Houston & Straub PLLC
Paducah, Kentucky
- 31 -
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.