FRUIT OF THE LOOM V. TIM KEETON; HON. DONNA TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: MAY 12, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000594-WC
FRUIT OF THE LOOM
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-15281
v.
TIM KEETON; HON. DONNA TERRY, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING & REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND DYCHE, JUDGES.
DYCHE, JUDGE.
Fruit of the Loom (FOL) petitions this Court to
review an opinion of the Workers’ Compensation Board (the Board)
rendered on February 12, 1999, which affirmed an opinion and
order of the Administrative Law Judge (ALJ) that awarded
temporary total disability (TTD) benefits to Tim Keeton (Keeton).
On March 24, 1993, Keeton injured his right wrist in
the course of his employment with FOL.
After enduring two
surgical operations, Keeton filed a claim for workers’
compensation benefits.
Keeton and FOL ultimately settled the
claim for a lump sum of $10,746.71, equaling 15% permanent,
partial occupational disability.
In January 1997, Keeton
underwent a third wrist operation consisting of an arthrodesis of
the right luno-triquetral joint.
On January 27, 1997, pursuant
to Kentucky Revised Statute (KRS) 342.125, Keeton filed a motion
to reopen his previous claim alleging that his condition had
worsened since the time of the settlement.
On March 24, 1997, an
ALJ denied Keeton’s motion to reopen on the ground that he failed
to support the motion with any medical evidence.
In May 1998, Dr. Thomas Wolff performed a fourth wrist
surgery on Keeton characterized as a "redo" of the arthrodesis
utilizing a left iliac crest bone graft.
As a result of the
surgery, Keeton was unable to work from May 14, 1998, until
September 2, 1998.
While FOL agreed to pay for the cost of the
surgical procedure, it refused to pay Keeton TTD benefits during
his recuperation.
On June 4, 1998, Keeton filed a motion to
reopen seeking TTD benefits for the time he was unable to work.
In its response to Keeton’s motion, FOL argued that Keeton was
precluded by KRS 342.125(3) from filing a second motion to reopen
within two years.
In an order entered on July 24, 1998, an
arbitrator found that Keeton’s motion should be treated as a
motion to reinstate TTD benefits rather than a motion to reopen
and ordered FOL to respond to the merits.
After FOL’s motion for
reconsideration was denied, it filed a request for de novo review
before an ALJ.
803 KAR 25:010.
On review, the Hon. Donna H. Terry, Chief
Administrative Law Judge (CALJ), determined that a motion to
reopen was not required to compel payment of TTD benefits "during
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a period of unquestioned temporary total disability following an
unquestionable work-related surgery" and ordered FOL to pay
Keeton TTD benefits at a rate of $197.11 per week from May 8,
1998, to September 2, 1998.
Board.
FOL appealed the decision to the
The Board, citing its previous decision in General
Electric Company v. Higdon,
96-06027, rendered August 7, 1998,
affirmed the CALJ’s opinion.
This petition followed.
The issue presented by the case sub judice is whether a
party to a final award must file a motion to reopen in order to
receive TTD payments for recuperation following a post-award
surgery that is clearly related to the original injury.
We must
note that the legitimacy of Keeton’s request for TTD is not at
issue; our primary focus is on the means by which he must pursue
such a claim.
An agreement to settle a workers’ compensation claim
that has been approved of by an arbitrator or ALJ becomes a final
award and is enforceable in circuit court pursuant to KRS
342.305.
KRS 342.265(1).
Once an approved settlement has been
filed in circuit court, the court "shall render judgment in
accordance therewith and notify the parties."
KRS 342.305.
As a
judgment of the court, the settlement becomes "subject to the
principles concerning the finality of judgments."
Campbell v.
Universal Mines, Ky., 963 S.W.2d 623, 624 (1998).
It is well
settled that a party to a final award may obtain relief from its
terms "only if it is reopened pursuant to the provisions of KRS
342.125."
Uninsured Employers’ Fund v. Turner, Ky., 981 S.W.2d
-3-
544, 545 (1998), citing Beale v. Faultless Hardware, Ky., 837
S.W.2d 893, 896 (1992); KRS 342.265(4).
Because we are concerned with the procedures
applicable to benefits provided in the Workers’ Compensation Act,
our query begins with the statutory scheme itself, KRS Chapter
342.
TTD is defined as a condition in which an employee "has not
reached maximum medical improvement from an injury and has not
reached a level of improvement that would permit a return to
employment[.]"
KRS 342.0011(11)(a).
TTD benefits serve the
particular purpose of assisting an injured worker through the
recovery process, W.L. Harper Construction Co. v. Baker, Ky.
App., 858 S.W.2d 202 (1993), and are a form of income benefit,
KRS 342.0011(12).
The General Assembly elected to delegate to
the Commission of the Department of Workers’ Claims the authority
to promulgate regulations relating to the expeditious payment of
TTD.
KRS 342.735(1).
While administrative regulations have been
promulgated to deal with the payment of TTD at any time during a
claim, 803 KAR 25:010, Section 11, the Commissioner has failed to
promulgate any regulations relating to the post-award payment of
TTD.
As a result, we are now forced to determine what procedures
should be followed when an injured worker seeks the post-award
payment of TTD.
The Board’s answer to the pressing issue came in the
case of General Electric Company v. Higdon,
August 7, 1998.
96-06027, rendered
In the Higdon case, the Board held that in a
post-award situation, an individual is not required to file a
motion to reopen or any other pleading in order to receive TTD
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after undergoing a reasonable and necessary surgery that is
clearly related to the original injury.
The Board’s conclusion
was based on the premise that TTD benefits are more like medical
expenses than permanent income benefits; therefore, we should
expect employers to pay TTD in a similar fashion as reasonable
and necessary medical expenses.
For the payment of post-award
medical expenses, a motion to reopen is only required when there
is a dispute concerning the reasonableness, necessity, or workrelatedness of the expense.
803 KAR 25:012, Section 1(6).
Otherwise, the worker merely submits the bill to the employer, or
employer’s insurer, and the bill is paid without any pleadings
being filed.
Initially, we are inclined to agree with the Board’s
premise.
TTD is by definition self-limiting, and even though it
is classified as an income benefit we have traditionally
recognized the difference between TTD and permanent disability
benefits.
Robinson v. Newberg, Ky., 849 S.W.2d 532, 534 (1993),
citing Island Creek Coal Company v. DeMoss, Ky. App., 621 S.W.2d
509 (1981).
To a worker who was forced to undergo a surgical
procedure due to a prior work-related injury, there is no
economic difference between the cost of the procedure itself and
the subsequent loss of income incurred because he/she was
required to be off work for a specified period of time after the
procedure.
It seems illogical to differentiate between the
expenses solely on the basis of their designations.
Thus, a
motion to reopen is not required to be filed in order for an
individual to request the post-award payment of TTD benefits
-5-
after a reasonable and necessary surgery.
However, where there
is a subsequent dispute relating to the payment, nonpayment,
reasonableness, necessity, or work-relatedness of TTD, we believe
that a motion to reopen is required to be filed.
According to the administrative regulations that govern
a post-award dispute regarding the payment, nonpayment,
reasonableness, necessity, or work-relatedness of a medical
expense, a motion to reopen pursuant to 803 KAR 25:010, Section
4(6) is required to be filed.
803 KAR 25:012, Section 1(6).
In
order to remain consistent with the original premise of similar
treatment for TTD and medical expenses, the same procedures must
be utilized to resolve disputes involving the post-award payment
of TTD benefits.
Keeton’s motion in the case sub judice was
properly filed as a motion to reopen to resolve a dispute
regarding the nonpayment of TTD benefits by FOL.
The CALJ and
Board erred in construing the motion as a motion to reinstate TTD
benefits.
Because we concluded that Keeton was required to file a
motion to reopen to resolve the dispute regarding the nonpayment
of TTD benefits, we must determine what version of KRS 342.125
applies to his claim.
As indicated earlier, Keeton was
originally injured in 1993, when there were no limits contained
in KRS 342.125 on the time within which or number of motions an
injured worker could file.
In 1996, however, the General
Assembly adopted a time line for filing motions to reopen in KRS
342.125.
KRS 342.125 now provides, in pertinent part:
(3) Except for reopening solely for
determination of the compensability of
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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, no
claim shall be reopened more than four (4)
years following the date of the original
award or order granting or denying benefits,
or within two (2) years of such award or
order, and no party may file a motion to
reopen within two (2) years of any previous
motion to reopen by the same party.
* * * *
(8) The time limitation prescribed in this
section shall apply to all claims
irrespective of when they were incurred, or
when the award was entered, or the settlement
approved. However, claims decided prior to
the effective date of this Act may be
reopened within four (4) years of the award
or order or within four (4) years of the
effective date of this Act, whichever is
later, provided that the exceptions to
reopening established in subsections (1) and
(3) of this section shall apply to these
claims as well.
FOL argues that under this version of KRS 342.125(3), Keeton’s
June 1998 motion to reopen should be dismissed because it was
filed within two years of his previous motion to reopen, which
was filed in January 1997.
Resolution of this issue requires us
to determine whether the time limitations set forth in KRS
342.125(3) are applicable to a claim in which the award was
entered into prior to the effective date of the amendment,
December 12, 1996.
This issue has been recently addressed and decided by
our Supreme Court in Meade v. Reedy Coal Co., No. 1999-SC-0552WC, 2000 WL 309942 (Ky., Mar. 23, 2000).
In Meade, the Court
determined whether the December 12, 1996, amendments to KRS
342.125 applied to a claim in which the award was entered into
-7-
prior to the effective date of the amendments.
In that case, the
claimant had received an award of 50% permanent, partial
occupational disability on December 21, 1995, and subsequently
filed a motion to reopen his claim on January 30, 1997.
The
employer argued that the claimant was prohibited from reopening
his claim by the two-year time limitation adopted in KRS
342.125(3).
In construing KRS 342.125(8), the Court noted that
the legislature expressly declared in KRS 342.0015, effective
December 12, 1996, that KRS 342.125(8) was remedial in nature and
that the language contained in KRS 342.125(8) clearly indicated
the legislature’s intent to apply the four-year time limitation
retroactively to claims decided prior to December 12, 1996.
As
for the two-year waiting periods in KRS 342.125(3), the Court
stated:
In view of the fact that KRS 342.125(8)
contains a time limitation which applies
specifically to claims decided prior to
December 12, 1996, and the fact that KRS
342.125(8) refers only to the "exceptions"
contained in KRS 342.125(3), we find no clear
indication that the legislature intended for
the two-year waiting periods which are
contained in KRS 342.125(3) to apply
retroactively to claims which arose and were
decided before December 12, 1996.
Meade, 2000 WL 309942, at *3.
Therefore, the Court concluded
that the two-year waiting periods, referring to both the
prohibition against filing a motion to reopen within two years
of the award or order and the prohibition against filing a
motion within two years of any other motion, and the four-year
limitation set forth in KRS 342.125(3) apply only to claims in
which the award is entered on or after December 12, 1996.
-8-
Id.
In the case sub judice, Keeton was originally injured
in 1993, and his claim was settled pursuant to an agreement on
March 15, 1996.
Based on the Supreme Court’s interpretation of
the 1996 amendments to KRS 342.125, we find that Keeton’s claim
is governed by the law in effect prior to December 12, 1996.
Meade v. Reedy Coal Co., No. 1999-SC-0552-WC, 2000 WL 309942
(Ky., Mar. 23, 2000).
Therefore, the two-year waiting period
prohibiting the filing of successive motions within two years is
not applicable.
At the time of Keeton’s injury and at the time
of his award, KRS 342.125(1) provided that an award could be
reopened "at any time" upon the requisite showing.
The opinion of the Board is reversed and remanded for
proceedings consistent with this opinion.
BUCKINGHAM, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: I would affirm the wellreasoned opinions of the CALJ and the Board, which accurately
summarize the propriety for payment of TTD under the
circumstances of this case — without the expense and delay
occasioned by the procedural meanderings proposed by the
appellant.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Norman E. Harned
Jeff V. Layson III
Bowling Green, Kentucky
Mark D. Knight
Somerset, Kentucky
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