DEBORAH SUE FISHER v. HIGHLAND CROSSING; SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND KENTUCKY WORKERS' COMPENSATION BOARD AND HIGHLAND CROSSING v. DEBORAH SUE FISHER; SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 4, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000557-WC
DEBORAH SUE FISHER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-91-33551
HIGHLAND CROSSING; SPECIAL FUND;
HON. DONALD G. SMITH, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY WORKERS'
COMPENSATION BOARD
APPELLEES
AND
NO.
2002-CA-000690-WC
HIGHLAND CROSSING
v.
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-91-33551
DEBORAH SUE FISHER; SPECIAL FUND;
HON. DONALD G. SMITH, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY WORKERS'
COMPENSATION BOARD
OPINION
AFFIRMING
CROSS-APPELLEES
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON, AND McANULTY, JUDGES.
McANULTY, JUDGE: Appellant Deborah Sue Fisher petitions for
review of a decision of the Workers’ Compensation Board (Board)
which denied her request to reopen her workers’ compensation
claim.
Appellee Highlands Crossing also cross-appeals that
portion of the decision which allowed Fisher to present her claim
on reopening for the second time.
We affirm both decisions.
Fisher was a dining room supervisor employed by
Appellee Highland Crossing, an assisted living facility.
In
1991, Fisher was injured while loading silverware into a
dishwasher, sustaining a broken navicular bone in her wrist.
While she was in a cast for the healing wrist, Fisher developed
De Quervains tendonitis and a torn rotator cuff, both of which
required surgery.
In 1995, an opinion and award was entered in Fisher’s
behalf for the workers’ compensation claim she filed on the 1991
injury.
The Administrative Law Judge (ALJ) on that case
determined that Fisher was 30% occupationally disabled, and
recognized that she suffered also from thoracic outlet syndrome
and reflexive sympathetic dystrophy.
The ALJ also directed
Appellees to pay Fisher’s medical expenses.
Fisher reopened her claim in 1997, based on several
allegedly unsuccessful surgeries that had been performed on her
wrist and arm a year earlier.
The parties met with an arbitrator
and came to a settlement before a hearing was held on the
reopening.
The settlement, which read that it was made “[i]n
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full and final satisfaction of payment of any future income
benefits,” extended the original benefits awarded to Fisher in
1995 and added a $15,000.00 lump sum payment to Fisher from
Highland Crossing.
Fisher moved to reopen her claim a second time in 1999,
claiming she was entitled to increased benefits because her
injuries had worsened and she was totally occupationally
disabled.
Her motion was opposed by Highland Crossing, which
argued that the 1998 lump sum settlement was final and precluded
Fisher from receiving any additional benefits.
An arbitrator
assigned to review the motion to reopen denied it, based on the
opinion that Fisher had already been determined to be totally
occupationally disabled in the previous proceedings and that the
settlement terms represented the final resolution of her claims.
Fisher filed a request for a hearing with an ALJ, who disagreed
that the terms of the settlement precluded her from seeking
additional benefits.
Thus, Fisher was allowed to present her
claim to be resolved on its merits.
The only evidence presented at the second reopening
consisted of Fisher’s own testimony and medical records, and a
deposition of Fisher taken by Highland Crossing.
The ALJ,
however, found Fisher’s evidence to be unpersuasive and held that
she had experienced no increase in occupational disability since
the 1998 settlement.
The Board agreed, and Fisher petitioned for
review of the Board’s opinion.
Additionally, Highland Crossing
now cross-appeals that portion of the Board’s opinion affirming
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the ALJ’s decision that Fisher’s claim was not precluded by the
1998 settlement.
We affirm on both counts.
First, we must note that we will only reverse the
Board’s decision when “the Court perceives 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, Ky.,
827 S.W.2d 685, 687-88 (1992).
Fisher now alleges that the Board erred when it found
that the ALJ’s decision was proper, because there was no evidence
to support his decision.
She argues that in order to determine
whether her occupational disability had increased, a baseline
measure would have to exist from the 1998 reopening with which
her current disability could be compared.
However, she claims
the 1998 settlement produced no evidence, and no measure against
which her current disability could be examined, therefore the
ALJ’s decision cannot be supported by the evidence.
We disagree.
It is clear that when a party seeks to reopen an award
or order pursuant to KRS 342.125, the burden of proof falls upon
the movant party.
Griffith v. Blair, Ky., 430 S.W.2d 337 (1968),
W.E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453 (1946).
Where the party with the burden of proof is unsuccessful before
he ALJ, the issue on appeal is whether the evidence compels a
different result.
S.W.2d 735 (1984).
Wolf Creek Collieries v. Crum, Ky. App., 673
Compelling evidence is that evidence which is
so overwhelming that no reasonable person could reach the same
conclusion as the ALJ.
REO Mechanical v. Barnes, Ky. App., 691
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S.W.2d 224 (1985).
As long as any evidence of substance supports
the ALJ’s opinion, it cannot be said that the evidence compels a
different result.
(1986).
Special Fund v. Francis, Ky., 708 S.W.2d 641
Further, the controlling factor on reopening pursuant to
KRS 342.125 is whether the moving party presented credible proof
that his or her occupational disability increased.
Peabody Coal
Co. v. Gossett, Ky. 819 S.W.2d 33 (1991).
In the case sub judice, it was incumbent upon the
Appellant to prove that her occupational disability had
increased.
However, as the Board pointed out, the ALJ found
Fisher’s testimony and evidence unconvincing.
Further, the Board
found that the ALJ supported his decision with sufficient
findings of fact, and we do not believe this was “an error in
assessing the evidence so flagrant as to cause gross injustice.”
Western Baptist Hospital, supra.
In truth, this case turns on the difference between
occupational disability and functional impairment.
The evidence
introduced on the second reopening could be construed to show
that Fisher’s functional impairment has increased since 1998, but
we agree that she was already totally occupationally disabled at
the time of her last reopening.
Fisher herself indicates during
her deposition that she had not worked since two years prior to
the 1998 settlement, and that she believed she was physically
unable to work since that time.
And according to her testimony,
the treatment Fisher received for her injuries from the time of
the 1998 settlement to the second reopening was conservative at
best, seemingly aimed at controlling her pain, not curing it.
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Those treatments did not include any further surgeries, but did
include therapy and an attempt to lessen Fisher’s pain through
acupuncture.
Finally, the ALJ noted that Fisher’s medical
reports indicated that her pain had never truly been under
control, an opinion that we feel is borne out by her testimony.
Therefore, we cannot find that the ALJ or the Board erred in
assessing this evidence.
We also agree with the Board’s decision in regards to
Highland Crossing’s cross-appeal.
We do not believe Fisher’s
right to reopen her claim was cut off by the 1998 settlement,
because there was no explicit waiver on the face of the document.
As the Board pointed out, in Huff Contracting v. Sark, Ky. App.,
12 S.W.3d 704 (2000), this court turned down a similar argument
dealing with a waiver of future medical benefits because no
corresponding terms were explicitly set out in the settlement
document.
In that case, we wrote, “[t]he waiver of any right
under the Kentucky Workers’ Compensation Act in a settlement
document must meet this standard.”
Huff, supra, at 706.
We
agree that there are no terms on the face of the settlement in
this case that meet that standard.
Based on the foregoing, we affirm the decision of the
Workers’ Compensation Board.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSSAPPELLEE DEBORAH SUE FISHER:
BRIEF FOR APPELLEE/CROSSAPPELLANT HIGHLAND CROSSING:
David E. Davidson
Covington, Kentucky
Peter J. Glauber
Boehl, Stopher & Graves, LLP
Louisville, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLEE SPECIAL FUND:
Joel D. Zakem
Frankfort, Kentucky
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