WYONIA BUTLER V. KENTUCKY MEDICAL REVIEW ORGANIZATION; SPECIAL FUND; HON. JOHN MANN, Arbitrator; HON. DONNA TERRY, Chief Administrative Law Judge; WORKERS' COMPENSATION BOARD
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000681-WC
WYONIA BUTLER
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-95-010255
KENTUCKY MEDICAL REVIEW
ORGANIZATION; SPECIAL FUND;
HON. JOHN MANN, Arbitrator;
HON. DONNA TERRY, Chief
Administrative Law Judge;
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EMBERTON, and GUIDUGLI, Judges.
COMBS, JUDGE:
Wyonia Butler (Butler) appeals from the opinion of
the Workers’ Compensation Board (the Board), which affirmed the
decision of the Chief Administrative Law Judge (CALJ).
The CALJ
upheld the order of the Arbitrator and overruled her motion to
reopen her claim for benefits on the grounds of fraud or mistake.
Butler was employed by Kentucky Medical Review
Organization (KMRO) as a monitoring specialist.
Her duties
included data entry and the review of medical charts.
Butler
stated that she sustained a work-related injury to her back on
December 30, 1994, while moving furniture and boxes at work.
At
the time of the injury at issue, KMRO was in the process of
moving to a new location.
Butler continued to work until
February 3, 1995, when she notified KMRO that she was no longer
able to work due to severe back pain and that she was going to
seek medical treatment.
Butler was ultimately diagnosed as
suffering a herniated disc and underwent back surgery on May 31,
1996.
Butler filed a claim for Workers’ Compensation benefits
based upon the injury of December 30, 1994.
Administrative Law Judge dismissed her claim.
On July 1, 1996, the
The ALJ found that
Butler had failed to prove that she had sustained a work-related
injury and that she had failed to give timely notice of her
alleged injury.
In reaching this decision, the ALJ found the
testimony of Butler’s co-workers to be more credible.
They
testified that Butler had not indicated to them or told them that
she had injured her back.
In fact, their testimony as to their
work activities on the day of the alleged injury are in direct
conflict with Butler’s statements as they maintained that they
had been instructed not to move or lift any furniture or boxes.
Butler appealed the ALJ’s decision to the Board, and on November
8, 1996, it rendered an opinion affirming the ALJ’s decision.
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On April 17, 1997, Butler filed a motion to reopen her
claim on the grounds of mistake and/or “constructive” fraud; she
also sought payment of her medical bills.
She claimed that she
had in fact notified KMRO of her injury in a timely manner.
For
the first time in all the course of these proceedings, Butler
asserted that on January 5, 1995, she sent a four-page fax to
Paula Warnick, an employee of KMRO, indicating that she had
sustained an injury to her back while lifting and moving boxes
and furniture.
She offered into evidence a fax activity sheet
which indicated that a facsimile transmission had indeed been
sent on January 5, consisting of four pages; she failed, however,
to produce the four pages.
KMRO countered that it had not
received such a fax from Butler and that it first learned of her
alleged injury on February 3, 1995 — more than thirty days after
the injury occurred.
On August 14, 1997, the arbitrator assigned to Butler’s
claim issued an order denying her motion to reopen and overruling
her request for payment of medical bills.
The arbitrator found
that there was insufficient evidence of fraud or mistake to
justify a reopening.
Butler appealed, requesting de novo review
by an ALJ pursuant to 803 KAR 25:010, § 13.
After conducting her review of the case, the Chief
Administrative Law Judge (CALJ) affirmed the arbitrator’s order.
The CALJ found it particularly significant that Butler had not
introduced the fax activity sheet into evidence at the original
hearing.
The CALJ held that even if Butler had notified KMRO by
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fax, her failure to testify as to the faxing or the existence of
the fax sheet negated a basis for reopening her claim on the
grounds of mistake, newly-discovered evidence, or “constructive
fraud.”
As the CALJ observed, the existence of the fax was
“uniquely within her knowledge” from the inception of these
proceedings and, therefore, was incapable of satisfying the
definition of “newly-discovered” evidence to serve as the basis
for a reopening.
Butler appealed the CALJ’s decision to the
Board, which rendered an opinion
the CALJ’s decision.
on February 23, 1998, affirming
This appeal followed.
Butler argues on appeal that her claim should be
reopened on the grounds of fraud, mistake, or newly discovered
evidenced.
Butler contends that the fax activity sheet she has
offered into evidence constitutes tangible evidence that she did
in fact notify KMO of her injury in a timely manner.
Based upon
this evidence, she maintains that her motion to reopen her claim
should have been granted.
We disagree.
Pursuant to KRS 342.125(1), an arbitrator or ALJ may
reopen and review any award or order on the grounds of: (a)
fraud; (b) newly-discovered evidence which could not have been
discovered with the exercise of due diligence; (c) mistake; and
(d) change of disability as shown by objective medical evidence
of worsening or improvement of impairment due to a condition
caused by the injury since the date of the award or order.
In this case, we are constrained to agree with the CALJ
and the Board that Butler has failed to prove any of the grounds
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which would justify a reopening under KRS 342.125.
During the
original proceedings, Butler failed to assert that she had sent a
fax notifying KMRO of her injury.
Clearly, she would have known
of the fax as she was the one who was responsible for sending it.
Since Butler had to be aware of the fax at the time of the
original hearing, it cannot be characterized as newly-discovered
evidence.
Furthermore, Butler has failed to establish fraud.
She alleges that she sent a fax which KMRO denies ever having
received.
The resolution of this issue turned on the credibility
of the parties and the weight of their evidence.
We agree with
the Board that Butler failed to establish her suspicion that KMRO
had attempted to conceal the truth.
In addition to the disputed fax, ALJ Nanney also based
his dismissal on the testimony of the co-workers, all of whom
either contradicted or certainly failed to substantiate the
appellant’s recounting of the events of December 30, 1994.
CALJ
Terry notes this dual basis for the dismissal in her opinion
denying the motion to reopen.
We cannot re-evaluate the
credibility of testimony and deduce a different result — even
though we might be persuaded otherwise.
Such a role is within
the exclusive purview of the fact-finders and severely limits our
discretion in appellate review.
Western Baptist Hospital v.
Kelly Ky., 827 S.W.2d 685 (1992).
KMRO requests that the costs of the appeal be assessed
against Butler as authorized by KRS 342.310.
assess such costs.
We decline to
This is a sad case where resort to the legal
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process was Butler’s last hope for assistance.
We find no basis
for treating her in a punitive fashion by assessing penalties for
her legitimate utilization of the appellate process.
We find that the Board has not “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, supra at 687.
We
therefore affirm the decision of the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE KENTUCKY
MEDICAL REVIEW ORGANIZATION:
Robert M. Lindsay
Louisville, KY
David L. Murphy
Louisville, KY
BRIEF FOR APPELLEE SPECIAL
FUND:
David R. Allen
Louisville, KY
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