PIEDMONT AIRLINES VS. COMP BROWN (RICHARD), ET AL.
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RENDERED: FEBRUARY 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001300-WC
PIEDMONT AIRLINES
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-70281
RICHARD BROWN; HON. CAROLINE
PITT CLARK, ADMINISTRATIVE LAW
JUDGE; AND THE WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON, AND CLAYTON, JUDGES.
CAPERTON, JUDGE: The Appellant, Piedmont Airlines, appeals the June 2,
2010, Opinion of the Workers’ Compensation Board, vacating and remanding this
claim back to the Administrative Law Judge Caroline Pitt-Clark, following the
ALJ’s entry of a November 12, 2009, order dismissing this claim after the
Appellee, Richard Brown, failed to attend three independent medical evaluations
despite being ordered to do so, and failed to attend the final hearing. The Board
found that pursuant to KRS 342.205(3), the ALJ was required to place the claim in
abeyance after Brown failed to attend the first medical evaluation, and that the ALJ
erred in setting the matter for a formal hearing. Piedmont disagrees, and argues
that the ALJ was correct in dismissing Brown’s claim. Having reviewed the
record, the arguments of the parties, and the applicable law, we affirm.
Brown alleged a work injury of November 17, 2006, involving his left
wrist. The claim was accepted as compensable, and temporary total disability
benefits were paid from November 18, 2006, through December 10, 2006, in the
total amount of $9,259.91. Piedmont did not file a Form 111 Notice of Claim
denial in response to Brown’s Form 101 Application for Resolution of Injury.
Brown attached to his Form 101 a Form 107 medical report from Dr. Robert
Dhaliwal, a chiropractor, assessing an 8% impairment rating under the 5th Edition
of the AMA Guides. Brown also submitted medical records from Dr. Grefer, x-ray
and MRI reports, the operative report from St. Luke Hospital West, and medical
records from Concentra Medical Center.
A Benefit Review Conference, (BRC), was initially held in this matter
on May 13, 2009. The order and memorandum from the BRC indicates that
Piedmont did not appear for the BRC. A show cause order was entered, requiring
Piedmont to show, within ten days, why it failed to appear for the BRC. The order
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further provided that if Piedmont did not enter a response, the claim would be
summarily decided in Brown’s favor.
An untimely response was filed on May 28, 2009, indicating that
Piedmont had contacted defense counsel upon receipt of the BRC order, and that
counsel had confirmed with representatives of Piedmont and its insurer, AIG, that
the original Form 101 and subsequent scheduling order were never received.1
Accordingly, Piedmont requested a minimal amount of time to submit proof
regarding the allegations contained in the Form 101.
Brown filed a response to Piedmont’s response to the show cause
order on June 30, 2009. Brown indicated that a letter from the senior investigator
for AIG was received via fax on January 4, 2008, indicating that an AIG adjustor
had been trying to reach Brown.2 The response further indicated that Brown’s
attorney had a telephone conversation with the senior investigator on January 25,
2008, in which she indicated that all future correspondence should to be sent
directly to the adjuster.3
The ALJ ultimately granted Piedmont until July 21, 2009, to submit
proof in this matter, and a formal hearing was scheduled for September 3, 2009.
1
Counsel indicated that the Form 101 was mailed to 400 South Fourth Avenue, Suite 400,
Louisville, Kentucky 40202, and that this had never been an address for AIG claims services.
Counsel further noted that the copy intended for Piedmont had been sent to an address in
Salisbury, Maryland, where Piedmont had its headquarters. Counsel stated that Piedmont was a
wholly-owned subsidiary of US Airways, and that it did not have a risk management department,
and therefore would not have been able to process the scheduling order and/or application for
resolution of claim.
2
A copy of the letter was attached to Brown’s response.
3
There was a letter from the AIG adjuster attached to the response, bearing the address of 400
South Fourth Avenue, Suite 400, Louisville, Kentucky 40202.
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Accordingly, Piedmont scheduled Brown for an IME with Dr. Richard Sheridan
for July 21, 2009. Notice of that evaluation was apparently sent to Brown’s
counsel on July 7, 2009. On that morning of the scheduled evaluation, Dr.
Sheridan’s office advised Piedmont that Brown had not kept the appointment.
Piedmont asserts that it left a message with Brown’s counsel inquiring as to his
absence at the evaluation, but that no response was given.
Thereafter, Piedmont filed a motion for extension of time and a
motion to compel. Brown filed a response to Piedmont’s motion for extension of
time, stating that he objected to any extension as service had properly been
forwarded to Piedmont, and Piedmont had failed to respond in a timely manner,
and therefore should not be allowed to submit medical evidence. The ALJ granted
the motion to compel and the motion for extension of time on August 7, 2009.
Therein, the ALJ ordered Brown to attend the rescheduled evaluation on August
10, 2009. Nevertheless, Brown again failed to attend the appointment or to explain
his absence.
Subsequently, on September 3, 2009, the parties attended a formal
hearing with the ALJ. Brown failed to attend the hearing. The ALJ printed on the
hearing order that Brown was ordered to attend an IME scheduled by Piedmont.
She further stated that failure to attend the IME, particularly in light of Brown’s
failure to appear for the formal hearing, would result in a dismissal of his claim.
Piedmont then scheduled a third medical evaluation with Dr. Sheridan for
September 29, 2009. Brown failed to attend that appointment as well.
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Accordingly, Piedmont moved to have Brown’s claim dismissed.
Brown’s counsel filed a response to that motion, indicating that its office had just
recently been able to re-establish contact with Brown, who now resides in
Cleveland, Ohio. Counsel stated that Brown was still in the process of establishing
his residence and had not had an opportunity to provide a forwarding address or
updated telephone number and was therefore unable to attend the scheduled IMEs.
Counsel provided Brown’s current address and telephone number, assured that
Brown was willing and able to attend an IME at that point, and requested that
another IME be scheduled.
As noted, the ALJ granted Piedmont’s motion to dismiss in an order
of November 12, 2009. Brown filed a petition for reconsideration, arguing that the
ALJ did not have the authority to dismiss a claim for inability to attend an
employer’s scheduled examination. He again noted that Piedmont and its
insurance company were properly served with the original Form 101, that
Piedmont failed to respond, and thus Piedmont was precluded from filing contrary
medical evidence. The petition for reconsideration was denied by the ALJ in an
order of December 28, 2009. Thereafter, Brown appealed to the Workers’
Compensation Board.
In making his arguments to the Board on appeal, Brown raised two
issues. First, he noted that Piedmont did not file a Form 111, Notice of Claim
Denial, in response to the filing of his Form 101 Application for Resolution of
Injury. Thus, he asserts that all allegations contained in his application were
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deemed admitted, including the attached Form 107 medical report from Dr. Robert
Dhaliwal and the impairment rating contained therein. Brown contended that he
was therefore entitled to a summary ruling in his favor, and that the ALJ erred in
dismissing his claim. Secondly, Brown argued that the ALJ lacked the authority to
dismiss his claim for failure to attend the IME with Dr. Sheridan. Brown argued
instead that the ALJ was allowed only to suspend his claim pursuant to KRS
342.205, and to deny compensation for the period during which he refused to
attend an IME.
As noted, the Board entered an opinion on June 2, 2010, vacating the
ALJ’s order of dismissal and remanding the matter to the ALJ. In doing so, the
Board found that KRS 342.205(3)4 provided that the sanction for failure to attend
an IME was not dismissal, but a suspension of Brown’s right to take or prosecute
the proceedings. Thus, the Board in reliance upon the holding of this Court in B.L.
Radden & Sons, Inc. v. Copely, 891 S.W.2d 84 (Ky.App. 1995)5 concluded that the
ALJ erred in dismissing the claim based on Brown’s failure to attend the scheduled
IMEs, and should instead have placed the matter in abeyance and suspended
compensation until Brown attended the IME. It is from that opinion that Piedmont
now appeals to this Court.
4
KRS 342.205(3) provides that, “If an employee refuses to submit himself to or in any way
obstructs the examination, his right to take or prosecute any proceedings under this chapter shall
be suspended until the refusal or obstruction ceases. No compensation shall be payable for the
period during which the refusal or obstruction continues.”
5
Wherein this Court held that placing a case in abeyance and ordering the cessation of the
compensation payable during the period during which the refusal or obstruction continues is the
only appropriate sanction available to the ALJ for a claimant’s failure to appear at a scheduled
medical exam.
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In reviewing the arguments made by the parties, we note that our
Kentucky Supreme Court has long recognized that the function of the Court of
Appeals in reviewing the decisions of the Board is to correct the Board only where
the Court perceives that the Board has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the evidence so flagrant as
to cause gross injustice. Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 68788 (Ky. 1992). We review this matter with this standard in mind.
On appeal, Piedmont argues that the Board erred when it found that
the ALJ was required to place the claim in abeyance pursuant to KRS 342.205(3).
Particularly, Piedmont takes issue with the Board’s reliance on Copely, supra,
stating that this claim is not one in which the claimant has merely refused to attend
an IME, but is instead a case where the claimant failed multiple IMEs, and a final
hearing, despite being compelled by an ALJ.
Piedmont also argues that Section(3) of KRS 342.205(1), which holds
that “if an employee refuses to submit himself to or in any way obstructs the
examination, his right to take or prosecute ... shall be suspended ...”, is only
triggered when a claimant either refuses to be examined, or obstructs the exam as it
is taking place. Piedmont argues that in the matter sub judice, Brown did neither.
Piedmont asserts that Brown never specifically indicated an unwillingness to
attend the examinations, but simply did not show up, leading Piedmont to believe
the failure was inadvertent.
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In support thereof, Piedmont directs our attention to the
acknowledgement by Brown’s counsel that Brown had moved and counsel had
been unable to reach him from July 21, 2009, through October 23, 2009, and that
Brown was “willing and able” to attend an IME if it were rescheduled again. Thus,
Piedmont argues that this is not a claim where KRS 342.205(3) requires an ALJ to
place the claim in abeyance and was instead a claim abandoned by Brown, at least
for a period of time. Accordingly, Piedmont asserts that the ALJ’s dismissal was
appropriate, as the ALJ has discretion to dismiss claims where a claimant fails to
prosecute. See Cornett v. Corbin Materials, 807 S.W.2d 56 (Ky. 1991).
As a corollary argument concerning Brown’s failure to attend the
scheduled IMEs, Piedmont argues that the ALJ had the discretion to dismiss
Brown’s claim for failure to comply with discovery orders. Piedmont argues that
in failing to attend the IMEs, Brown also failed to comply with an express court
order compelling discovery. Thus, Piedmont asserts that an ALJ might not have
the authority to dismiss a claim solely on the basis of refusal to attend an IME, it
does have the power to dismiss a claim when a claimant continually defies court
orders and obstructs the defense of a claim.6
Beyond its arguments concerning Brown’s failure to attend the
scheduled IMEs, Piedmont asserts that the ALJ had the discretion to dismiss
6
In support of that argument, Piedmont refers this Court to 803 KAR 25:009 § 17, which holds
that discovery shall be in accordance with the provisions of Civil Rules 26 to 37, excluding Civil
Rules 27, 33, and 36. Thus, Piedmont argues that because CR 37.02 allows the court authority to
dismiss an action for failure to comply with orders of the court, the ALJ should have been
allowed to do so in this claim as well.
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Brown’s claim for his failure to attend a final hearing. Piedmont directs this
Court’s attention to KRS 803 25:010 §18, which provides that, “If the plaintiff or
plaintiff’s counsel fails to appear, the administrative law judge may dismiss the
case for want of prosecution, or if good cause is shown, the hearing may be
continued.” Thus, Piedmont argues that under that provision, the ALJ had the
discretion to dismiss Brown’s claim for failure to attend the hearing, and for failing
to show good cause why he did not do so. Piedmont asserts that Brown’s failure to
attend the IMEs as scheduled prejudiced its defense, and asserts that Brown
continued to do so despite being repeatedly admonished by the ALJ.
Finally, Piedmont argues that its failure to timely respond to Brown’s
application for benefits should not have resulted in summary judgment against it.
In making this argument, Piedmont asserts that Brown is arguing that summary
judgment should have been issued against it. However, a review of Brown’s brief
does not reveal any such argument. Further, we note that summary judgment was
not, in fact, issued against Piedmont. Accordingly, both because summary
judgment was not issued and because Brown does not argue to this Court that it
should have been, we decline to address this issue further herein.
In response, Brown states simply that Piedmont has merely rewritten
and reworded the same arguments that were presented to the Board, and have
presented nothing justifying their failure to file a Form 111. Brown thus merely
incorporates the opinion of the Board as his own reasoning, and adopts the
arguments therein as his own to his Court.
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Having reviewed the arguments of the parties and the opinion of the
Board, we are ultimately in agreement with the Board’s decision to vacate and
remand this matter back to the ALJ. Critically for purposes of determination of
these issues, we note that it is undisputed that Piedmont did not file a Form 111 in
response to Brown’s claim. Accordingly, we believe the law is clear that all
allegations in Brown’s application were deemed admitted.
While Piedmont maintained below that only the allegations contained
within the Form 101 itself were deemed admitted, and that accordingly it did not
accept the medical report of Dr. Dhaliwal, which was attached to the Form 101, we
disagree. 803 KAR 25:010 § 5(2)(b) provides that, “To apply for resolution of an
injury claim, the applicant shall file a Form 101 with the following completed
documents ...” Those documents include a medical report which includes a
description of the injury, establishment of a causal relationship between the injury
and the work-related event, among other enumerated items. Brown attached such a
medical report to his Form 101, that of chiropractor Dr. Dhaliwal, whose report
included a description of the injury, an opinion as to causation, an impairment
rating, and restrictions. By not filing a Form 111 in response to Brown’s claim,
Piedmont accepted the allegations contained therein. Thus, Piedmont is not
entitled to obtain an IME for purposes of obtaining a rating or restrictions to
dispute those issued by Dr. Dhaliwal.
Certainly Piedmont is correct that KRS 342.205(1) allows a defendant
the right to have a claimant examined at a reasonable time and place by a duly
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qualified physician, or a surgeon, designated and paid for by the requesting party, a
requirement which exists for as long as compensation is claimed. However, as the
Board correctly noted, Piedmont does not have the right to use an IME report in an
attempt to rebut allegations which were deemed admitted upon its failure to timely
file a Form 111. Piedmont may, however, still wish to obtain an IME for other
legitimate purposes should they occur. We agree with the Board, however, that
pursuant to KRS 342.205(3), an ALJ cannot dismiss a claim for failure to attend an
IME. B.L. Radden & Sons, Inc. v. Copely, 891 S.W.2d 84 (Ky.App. 1995).
Having so noted, we acknowledge that Piedmont is correct in
asserting that in certain instances, failure to attend a hearing may be grounds for
dismissal. See 803 KAR 25:010 §18. However, we are again in agreement with
the Board that in the matter sub judice, Brown’s actions or lack thereof do not
warrant dismissal. While the regulation provides that the ALJ may dismiss a claim
for want of prosecution, it is clear that Brown’s counsel actively prosecuted the
claim, and there was clearly no intent to abandon the claim. A review of the record
reveals that Brown’s counsel repeatedly argued that an IME was not proper in light
of Piedmont’s failure to timely respond to this claim. Beyond that, the letter from
counsel filed in response to Piedmont’s motion to dismiss indicated difficulty in
contacting Brown, but a willingness to attend an IME should another one be
scheduled.
Thus, we believe that the Board acted appropriately in vacating the
order and remanding this matter back to the ALJ. Certainly, on remand, the ALJ
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may sanction Brown for his failure to attend the IMEs pursuant to KRS 342.305
until such time as he complies, and may also issue other sanctions for failure to
attend the final hearing, short of an actual dismissal.
Wherefore, for the foregoing reasons, we hereby affirm the June 2,
2010, opinion of the Workers’ Compensation Board, vacating the November 12,
2009, order of the Administrative Law Judge dismissing this claim, and remanding
this matter back to the Administrative Law Judge for a decision on the merits.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kamp T. Purdy
Aaron P. Stack
Lexington, Kentucky
Michael L. Weber
Cincinnati, Ohio
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