EQUITABLE BAG COMPANY, INC. v. SHIRLEY HOLLON; ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COM and ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND v. SHIRLEY HOLLON; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 17, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002449-WC
EQUITABLE BAG COMPANY, INC.
v.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-21461
SHIRLEY HOLLON;
ROBERT WHITTAKER, DIRECTOR
OF SPECIAL FUND;
HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COM
AND:
APPELLEES
NO. 2001-CA-002548-WC
ROBERT WHITTAKER, DIRECTOR
OF SPECIAL FUND
v.
APPELLANT
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-21461
SHIRLEY HOLLON;
HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION
REVERSING
** ** ** ** **
CROSS-APPELLEES
BEFORE:
BUCKINGHAM, GUIDUGLI AND HUDDLESTON, JUDGES.
GUIDUGLI, JUDGE.
Equitable Bag Company, Inc., and Roger
Whittaker, Director of Special Fund (collectively Equitable),
each appeal from an order of the Workers’ Compensation Board (the
Board) entered October 17, 2001, which reversed an order entered
by Administrative Law Judge James L. Kerr (the ALJ) which
dismissed Shirley Hollon’s (Hollon) motion to reopen pursuant to
KRS 342.125.
The appeals have been joined by previous order of
this Court since each appeal raises similar issues.
We reverse
on both appeals.
Hollon sustained a work-related back injury as a result
of two separate incidents which occurred in April 1992, while she
was employed as a bag catcher by Equitable.
On October 19, 1992,
Hollon filed a Form 101 in which she alleged that she sustained
an injury to her lower back.
On December 10, 1993, Hollon filed
a motion to amend her Form 101 to include, among other things, a
claim for psychiatric disability stemming from her back injury.
Hollon was deposed on October 20, 1993.
She testified
that her chief complaint was back pain radiating into her right
leg.
She participated in a work hardening program in December
1992, but was unable to complete the program because of headaches
and pain in her back, shoulders and legs.
This was the only
mention of shoulder pain in Hollon’s deposition.
Dr. Lowell Ford (Dr. Ford) treated Hollon for her back
injury.
On several occasions Hollon told Dr. Ford that she was
experiencing pain in her neck and right shoulder and arm which
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she felt was related to her work-related accident.
Specifically,
on July 1, 1992, Dr. Ford noted in his records:
She also reminds me that two days after the
original injury she felt neck pain and that
was associated with right shoulder and arm
pain into the hand. She had some tingling in
the digits also which she still has
occasionally. Her motor function is normal
in the upper extremity with no limitation of
agility though when she turns her head and
neck to the right she gets neck discomfort.
At his deposition, Dr. Ford testified that he believed Hollon’s
neck complaints of July 1, 1992, were “secondary to complaints in
the lower back area,” and was “not of significant neurological
concern.”
Although Hollon made occasional complaints of neck
pain to Dr. Ford, his deposition makes it clear that he primarily
treated her for her back problems.
Dr. Kenneth Graulich (Dr. Graulich) examined Hollon on
November 2, 1993.
and back.
His physical examination covered Hollon’s neck
Hollon told Dr. Graulich that her neck pain started
around the time that her back pain began.
After examining her
neck and concluding that it was essentially normal, Dr. Graulich
assigned Hollon an impairment rating of 0% in regard to her neck
complaints.
Despite telling her doctors that she began experiencing
neck pain around the time of her work-related accident, Hollon
never moved to amend her Form 101 to include a claim for benefits
stemming from her neck complaints.
On March 24, 1994, Hollon and
Equitable entered into a settlement agreement which resolved her
claim.
The settlement agreement listed the nature of the injury
as “low back and psychiatric.”
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On December 12, 2000, Hollon filed a motion to reopen
her claim, stating that she had undergone consistent treatment
for her neck and back injuries since the date of her injury and
that she had cervical disc surgery in August 1994.
Hollon
alleged that she had an MRI performed on December 5, 2000, and
that “when the results of the new MRI is compared with the
results of the earlier MRI done in 1992, it shows a substantial
change in her medical condition.”
Hollon contended that the new
MRI and the fact that she had cervical surgery satisfied her
burden of showing a substantial change in her medical condition.
Attached to Hollon’s motion to reopen were medical
records from Dr. Ghahreman Khodadad (Dr. Khodadad) and a
statement from Dr. Todd Perkins.
Dr. Khodadad’s records show
that when he first saw Hollon on April 20, 1994, she complained
of neck and right arm pain, numbness and tingling.
Hollon did
tell Dr. Khodadad that she had a prior low back injury in April
1992.
Dr. Khodadad performed a foraminotomy and partial hemi-
laminectomy at C6-7 on August 19, 1994.
Dr. Khodadad offered no
opinion as to whether Hollon’s neck complaints were causally
connected to her work-related accident.
The record from Dr. Perkins consisted of a statement
drafted by Hollon’s attorney and signed by Dr. Perkins on
December 8, 2000.
The statement read:
That I have examined Shirley Hollon on the
8th day of December, 2000 and have compared
the results of her MRI taken in 1992 with the
results of her MRI taken on December 5, 2000
and believe that there is a substantial
change in her medical condition.
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There was no indication as to whether these MRIs were of Hollon’s
neck or lower back.
Hollon’s motion to reopen was granted by Chief
Administrative Law Judge Shelia Lowther on March 26, 2001, and
the matter was assigned to ALJ Kerr for resolution.
On April 5,
2001, Equitable filed a motion to reconsider the reopening order,
arguing that Hollon’s attempt to reopen her claim to obtain
benefits for a neck injury amounted to piecemeal litigation and
was soundly prohibited by Slone v. Jason Coal Company, Ky., 902
S.W.2d 820 (1995).
The ALJ granted Equitable’s motion by order
entered May 18, 2001, stating:
As the defendant-employer points out,
plaintiff’s original claim involved low back
and psychiatric conditions. Review of her
application, motion to amend, and settlement
indicates the plaintiff’s original claim did
not include an injury to her neck. It
further appears that plaintiff’s neck
condition was in existence as of 1992 when
the plaintiff had a cervical MRI (see Dr.
Perkins [sic] note for evidence of this
information). As plaintiff’s original claim
failed to include a cervical condition, even
though it was known to her at the time, and
as plaintiff has presented no evidence that
her low back and/or psychiatric condition
have resulted in an increase of occupational
disability, CALJ Lowther’s March 26, 2001
order must be set aside[.]
Hollon appealed the ALJ’s order to the Board, which
reversed in an opinion entered October 17, 2001, stating:
Slone does not mandate there be a recovery
for a condition before it may be considered
upon reopening but rather that if it is known
and not brought forth in any manner, then it
may not be addressed upon reopening. Here,
Hollon did present evidence concerning the
condition prior to the settlement through the
deposition of Dr. Ford. Additionally, it is
clear Equitable was well aware of the
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condition since its physician, Dr. Graulich,
examined Hollon, paying particular attention
to her neck and back. It is a longstanding
principle that issues may be tried by
consent. It is also clear from reviewing the
medical evidence at the time of the
settlement that the evidence would not have
supported an award of income benefits for the
cervical condition. Dr. Graulich assigned a
0% impairment rating and stated Hollon had a
normal examination. Hollon’s treating
physician did not seem concerned with the
cervical condition. Evidence from Dr. Ford
would seem to indicate the neck problem at
the time of settlement was a result of the
back problem. He stated the cervical
condition was probably not of significant
neurological concern. Evidence submitted
with the motion to reopen indicates a history
that the condition became much more severe
after the settlement was entered. In our
opinion, Hollon did “raise” her cervical
condition in the claim prior to settlement
even though she had not amended her Form 101
to include the cervical condition. In our
opinion, the intent of the court in Slone was
to prohibit piecemeal litigation and to
prohibit claimants from reopening for
conditions that were compensable and known
prior to settlement or final adjudication
that were not presented in any way at the
time of the settlement or adjudication.
Unfortunately, it appears quite likely the
file the ALJ had before him was significantly
deficient at the time of his ruling. The
original claim file was microfilmed. Much of
the evidence would not have been available to
the ALJ through the Department of Workers’
Claims computer imaging system nor had it
been reproduced on paper in the claim file
for the reopening. This no doubt contributed
to the ALJ’s apparent erroneous belief that
Dr. Perkins’ note comparing MRIs related to a
cervical MRI in 1992 and was evidence that
Hollon had a neck condition prior to the
settlement. In reviewing the medical
evidence, the only evidence of record
concerning MRIs performed in 1992 relate to
Hollon’s low back condition. The only
logical inference that may be drawn from the
evidence of record is that Dr. Perkins was
comparing a 1992 low back MRI with another
MRI taken in December 2000. Equitable did
-6-
state in its initial response to the motion
to reopen that Dr. Perkins was referring to
cervical MRIs, however, Equitable had
abandoned that statement and argued to the
ALJ that it was not clear to what body part
Dr. Perkins was referring. In our opinion.
the claimant has submitted evidence
sufficient to make a prima facie showing of
grounds for reopening.
These appeals followed.
We note that Hollon has failed to file an appellate
brief in this matter and her failure to do so is to be treated as
a confession of error pursuant to CR 76.12(8)(c)(iii).
Ausum v.
Pierce, Ky., 894 S.W.2d 631, 633 (1995).
Even if we were to address the merits of the appeals,
the result would be the same.
Each appeal maintains that the
Board erred in holding that Slone does not preclude Hollon’s
motion to reopen.
After reviewing the record on appeal and
Slone, we find that we must agree.
In Slone, the plaintiff filed a workers’ compensation
action and an action for SSI in July 1987.
While the plaintiff’s
SSI claim sought benefits for a work-related back injury as well
as benefits for a psychiatric disability, the plaintiff’s
workers’ compensation claim only sought benefits for the back
injury.
The plaintiff ultimately received both social security
and workers’ compensation benefits.
Approximately two years later, the plaintiff sought to
reopen his workers’ compensation claim in which he claimed that
“a change of occupational disability in that a mental condition
which was dormant and non-disabling at the time of his injury was
then manifesting itself.”
Slone, 902 S.W.2d at 821.
-7-
In holding
that the plaintiff could not reopen his claim, the Kentucky
Supreme Court held:
The testimony in the record from the
physician expert used by the claimant
indicates that the mental condition was
sufficiently known to be the subject of a
proceeding for [SSI]. For some unknown
reason, the claimant did not choose to pursue
a similar complaint in the State workers’
compensation proceeding. Accordingly, the
present appeal which attempts to raise those
issues by means of the reopening procedure
cannot really be distinguished from the
prohibition against piecemeal litigation
stated in Wagner Coal & Coke Co. v. Gray, 208
Ky. 152, 270 S.W. 721 (1925). The failure of
the claimant to present any evidence
regarding his mental condition in the
original workers’ compensation claim cannot
be cured by a motion to reopen more than two
years later.
KRS 342.125 provides that an award may be
reopened upon a showing of “change of
occupational disability, mistake, fraud or
newly discovered evidence.” A motion to
reopen cannot be based on a condition known
to the claimant during the pendency of his
original action, but which for some reason,
he did not choose to litigate.
Slone, 902 S.W.2d at 821-822.
Like the plaintiff in Slone, Hollon was aware that her
neck was hurting several days after the accident.
She told Dr.
Ford on July 1, 1992, that her neck started hurting “two days
after the original injury.”
pain to Dr. Graulich as well.
She obviously complained of neck
However, despite complaining of
neck pain which manifested itself several days after the workrelated accident, we are left with the fact that Hollon never
amended her Form 101 to include a claim for benefits for a
cervical injury.
Thus, like the plaintiff in Slone, she is
barred from attempting to recover benefits for a neck injury on
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reopening.
She was aware of the existence of a neck injury at
the time her original action was pending before the ALJ but, for
whatever reason, never sought to recover benefits for her neck
injury at that time.
We are not persuaded that the fact that Equitable may
have known that Hollon was complaining of neck pain makes any
difference.
Hollon never put Equitable on notice that she was
seeking benefits for a neck condition and, absent any amendment
of the Form 101 to include a benefit for a cervical condition,
Hollon cannot now seek benefits for a cervical condition on
reopening.
We have also considered whether Dr. Perkins’ signed
statement could be evidence upon which a prima facie case for
reopening under KRS 342.125 could be based.
The only thing Dr.
Perkins statement provides is that a comparison of a 1992 MRI to
a 2000 MRI shows a worsening in Hollon’s condition.
While
testimony from Dr. Ford’s deposition in the original action shows
that Hollon had a lumbar MRI on July 7, 1992, there is no
information in the record as to whether the 2000 MRI was of
Hollon’s lumbar spine, and to speculate that the 2000 MRI was of
Hollon’s lumbar spine would be pure conjecture.
Having considered the arguments presented in both
appeals, the opinion of the Workers’ Compensation Board is
reversed and the order of the ALJ is reinstated.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE, SHIRLEY
HOLLON
Michael R. Sanner
Lexington, KY
-9-
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Frankfort, KY
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