BARDSTOWN BARRELS v. DARIO NAVARRO LOPEZ; JOHN EARL HUNT, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
October 26, 2001; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000438-WC
BARDSTOWN BARRELS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-89654
v.
DARIO NAVARRO LOPEZ; JOHN
EARL HUNT, ADMINISTRATIVE
LAW JUDGE; and WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge, BUCKINGHAM and McANULTY, Judges.
BUCKINGHAM, JUDGE: Bardstown Barrels petitions for review of an
opinion by the Workers’ Compensation Board (Board) which reversed
and remanded a decision by an administrative law judge (ALJ)
holding that a motion to reopen by Dario Navarro Lopez was barred
by the provisions of KRS1 342.125(3).
The sole issue for our
review is whether the December 12, 1996, amendments to KRS
342.125 or the July 14, 2000, amendments to that statute were
1
Kentucky Revised Statutes.
applicable to Lopez’s motion.
We agree with the Board that the
2000 amendments were applicable.
Thus, we affirm.
Lopez, an employee of Bardstown Barrels, suffered a
work-related low back injury on March 20, 1997.
On August 14,
1998, an ALJ awarded Lopez temporary total disability (TTD) and
medical benefits but determined that Lopez was not entitled to an
award for any permanent disability.
claim on May 30, 2000.
motion to reopen.
Lopez moved to reopen his
On July 26, 2000, an ALJ overruled the
In an order denying Lopez’s petition for
reconsideration, the ALJ held that the motion was contrary to KRS
342.125(3).
On appeal, the Board reversed the ALJ and held that
the motion was not barred by KRS 342.125(3) in light of the 2000
amendments to that statute.
The Board thus remanded the matter
to the ALJ to address the merits of Lopez’s motion to reopen.
This petition for review by Bardstown Barrels followed.
KRS 342.125(3) was amended effective December 12, 1996,
to provide that claims may not be reopened more than four years
following the date of an award or order granting or denying
benefits, or within two years of such award or order.
In other
words, the statute provided a two-year window within which to
file a motion to reopen.
KRS 342.125(3), as amended effective
December 12, 1996, specifically provided as follows:
Except for reopening solely for determination
of the compensability of medical expenses,
fraud, or conforming the award as set forth
in KRS 342.730(1)(c)2., or for reducing a
permanent total disability award when an
employee returns to work, 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
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party may file a motion to reopen within two
(2) years of any previous motion to reopen by
the same party.
KRS 342.125(3) was again amended effective July 14,
2000.
The amendment provided that a claim may not be reopened
more than four years after the date of the original award or
order granting or denying benefits.
The amended statute made no
mention of any two-year waiting period or other waiting period
before which a motion to reopen could be filed.
In other words,
there was no window of opportunity for filing a motion to reopen,
but there was only a four-year statute of limitation in which to
file such a motion.
KRS 342.125(3), as amended effective July
14, 2000, specifically provided as follows:
Except for reopening solely for determination
of the compensability of medical expenses,
fraud, or conforming the award as set forth
in KRS 342.730(1)(c)2., or for reducing a
permanent total disability award when an
employee returns to work, or seeking
temporary total disability benefits during
the period of an award, no claim shall be
reopened more than four (4) years following
the date of the original award or order
granting or denying benefits, and no party
may file a motion to reopen within one (1)
year of any previous motion to reopen by the
same party.
KRS 342.125(8) also has significance to this case.
That statute was not amended again on July 14, 2000, and it read
exactly the same following the 1996 amendments and the 2000
amendments.
The statute reads as follows:
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
December 12, 1996, may be reopened within
four (4) years of the award or order or
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within four (4) years of December 12, 1996,
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.
KRS 342.125(8).
As we noted in setting forth the facts of this case,
Lopez’s motion to reopen was filed within two years of the ALJ’s
award.
Therefore, if the December 1996 amendments were
applicable, then the ALJ properly denied the motion because it
was not filed within the two-year window for filing such motions.
However, if the July 2000 amendments are applicable, then the
Board was correct in reversing the ALJ since there was no
applicable waiting period before which a motion to reopen could
be filed.
Recent cases from the Kentucky Supreme Court address
somewhat similar situations.
Meade v. Reedy Coal Co., Ky., 13
S.W.3d 619 (2000), is one of those.
In Meade, the claimant was
injured prior to the effectiveness of the December 1996
amendments.
He also received an award from an ALJ prior to the
amendments’ effective date.
The claimant moved to reopen the
award after the effective date of the December 1996 amendments.
The claimant argued that his motion to reopen was proper under
the pre-December 1996 statute because he received his award prior
to that time.
The employer asserted that the reopening was
prohibited by the December 1996 amendments because less than two
years had passed since the award was entered.
In its opinion siding with the claimant’s position, the
court held that the four-year limitation found in KRS 342.125(8)
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governed the reopening of claims in which the award had been
entered prior to the December 1996 amendments.
Id. at 622.
The
court further held that the two-year waiting period and four-year
limitation contained in KRS 342.125(3) governed the reopening of
claims in which the award was entered after the effective date of
the December 1996 amendments.
Id.
In other words, the court
held that the two-year waiting period provided in the December
1996 amendments to KRS 342.125(3) did not apply in cases where
the award was entered prior to the effective date of the
amendments.
Id.
In Brooks v. University of Louisville Hosp., Ky., 33
S.W.3d 526 (2000), the Kentucky Supreme Court was faced with
slightly different circumstances.
In Brooks, the claimant was
injured in February 1995, prior to the December 1996 amendments.
However, benefits were awarded in August 1997, after the
effective date of the December 1996 amendments.
Citing its
decision in the Meade case, the court concluded that the December
1996 amendments were applicable because the award occurred after
that date, even though the injury occurred prior to the date of
the amendments’ effective date.
Id. at 529.
See also McCool v.
Martin Nursery & Landscaping Inc., Ky., 43 S.W.3d 256 (2001).
In the case sub judice, Lopez’s motion to reopen
presents yet a different set of circumstances.
Lopez received
his award prior to the effective date of the July 2000
amendments, but the ALJ ruled on his motion to reopen after the
amendments’ effective date.
We must determine whether the motion
was barred by the statute’s two-year waiting period provision
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under the December 1996 amendments or was proper under the July
2000 amendments which did not contain a waiting period provision.
Bardstown Barrels urges us to follow the Meade and
Brooks cases and hold that the law in effect at the time the
award was entered is applicable.
Under that argument, the
December 1996 amendment to the statute, which requires a two-year
waiting period to file a motion to reopen, would be applicable
and would bar Lopez’s motion to reopen.
Lopez urges us to follow
the first sentence in KRS 342.125(8) which states that “[t]he
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.”
We agree with the Board’s conclusions and its analysis
of the issue.
The Board held as follows:
Bardstown Barrels argues that the
Kentucky Supreme Court’s case of Meade v.
Reedy Coal, Ky., 13 S.W.3d 619 (2000), is
controlling. It points out that the Supreme
Court stated in Meade that in cases where a
claim is decided after December 12, 1996, the
two-year waiting period in KRS 342.125(3)
applies. The court also stated that there
was no clear indication that the legislature
intended for the two-year waiting period to
apply retrospectively. Bardstown Barrels
reasons that since the language of KRS
342.0015 and KRS 342.125(8) is virtually
unchanged in the 2000 Act, the legislature
has again not given a clear indication that
the removal of the two-year waiting period in
the 2000 amendments to KRS 342.125(3) is to
be applied retrospectively. We do not agree.
. . . .
In Meade, supra, the court’s decision
relied on the language of the second sentence
of KRS 342.125(8). The court noted that this
language applies specifically to claims
decided prior to December 12, 1996. The only
mention of KRS 342.125(3) is the mention of
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“exceptions to reopening” in this sentence.
The court held that the two-year waiting
period may not be considered an “exception to
reopening.” The court held that the more
specific language of the second sentence
should apply rather than the more general
language of the first sentence. Since there
is no clear expression of the legislature’s
intent to have the two-year waiting period
apply to pre-December 12, 1996 claims found
in that sentence, the court held that the
waiting period could not be applied
retrospectively, whether or not it is
considered remedial. (Footnote omitted.)
KRS 446.080(3) states that “no statute
shall be construed to be retroactive, unless
expressly so declared.” The employer has
correctly pointed out KRS 342.125(8) and KRS
342.0015 are essentially unchanged following
the 2000 amendments. The language that the
Supreme Court relied on in Meade v. Reedy
Coal, supra, still applies explicitly to
claims that arose prior to December 12, 1996.
Since we are not concerned with a preDecember 12, 1996 claim in this appeal, we
believe that Meade is inapposite.
The first sentence in KRS 342.125(8)
clearly applies to all claims arising after
December 12, 1996. Furthermore, there is no
language in KRS 342.125 that expressly
applies only to claims arising before July
14, 2000. The first sentence in KRS
342.125(3) is a clear expression by the
legislature that the “time limitation”
prescribed in KRS 342.125 is to be applied to
all claims, irrespective of when the claim
arose. . . .
Since the language of KRS 342.125(8)
expressly states the legislature’s intention
that KRS 342.125(3) should apply to all
claims decided after December 12, 1996 and
there is no contrary indication in the Act,
the 2000 amendments would be applicable to
the instant claim, whether or not the statute
is considered remedial. KRS 446.080(3).
The opinion of the Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, DARIO
NAVARRO LOPEZ:
Michael P. Neal
Louisville, Kentucky
Ben T. Haydon, Jr.
Bardstown, Kentucky
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