CHARLES GUTTMAN v. GENERAL ELECTRIC COMPANY; HON. RONALD MAY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000925-WC
CHARLES GUTTMAN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-78794
GENERAL ELECTRIC COMPANY;
HON. RONALD MAY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Charles Guttman ("Guttman") appeals from an
opinion of the Workers' Compensation Board ("the Board")
affirming an opinion and order of the Administrative Law Judge
("ALJ") holding that Guttman could not maintain an action for an
alleged back injury after settling a claim with his employer,
General Electric ("GE").
We affirm.
On June 5, 1998, Guttman injured his knee and shoulder
when he fell from a platform during the course of his employment
with GE.
Guttman received medical treatment, and was referred to
Dr. Ed Tillett ("Tillett"), an orthopedic physician.
About three
weeks after the accident, Guttman apparently complained to
Tillett of back pain.
Guttman filed a claim for benefits and received
temporary total disability.
Thereafter, a dispute arose between
Guttman and GE as to whether Guttman's back pain was caused by
the fall from the platform.
Negotiations on the dispute were
undertaken, and a settlement was agreed to under which Guttman
would receive a lump sum payment based on a 2% whole body
impairment.
To memorialize the settlement, a GE claim
representative prepared an "Agreement as to Compensation" form.
The form addressed Guttman's knee and shoulder injuries, but did
not recognize the alleged back injury.
Guttman signed the form,
but added a notation by hand that the release did not include the
back injury.
GE rejected the form based on the handwritten notation,
and produced a second copy for Guttman's signature.
Guttman
signed the second form and did not add the handwritten notation.
A GE claim representative then signed the form and it was
forwarded to the Department of Workers' Claims where it was
approved.
On January 4, 2000, Guttman filed an "Application for
Resolution of Injury Claim" seeking compensation for treatment of
the back injury.
The application included information that
Guttman underwent a surgical discectomy and fusion on June 23,
1999.
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GE answered and offered the signed settlement agreement
as a complete bar to Guttman's claim.
The matter went before the
ALJ, who found that Guttman waived his right to assert a back
injury claim when he executed the settlement agreement.
The ALJ
also concluded that the claim was barred by operation of KRS
342.270(1), which provides that a claimant shall join all causes
of action which are known or should be reasonably known to him at
the time of the filing.
The matter then went before the Board,
which reversed and remanded for consideration of whether a prima
facie showing of fraud or mistake was made and, if so, directing
the ALJ to consider further evidence on the claim.
On remand, the ALJ, concluded that the case was not
appropriate for reopening because the facts did not show fraud or
mistake.
The ALJ noted that Guttman underwent back surgery
almost two months prior to execution of the settlement agreement,
and found that this was not a situation in which Guttman was
being starved into a settlement because of lack of income or
deprivation of medical treatment.
The ALJ also concluded that he
did not find credible Guttman's assertion that he (Guttman)
complained of back pain on every visit to Tillet.
The matter again went before the Board, which rendered
an opinion affirming on April 3, 2002.
This appeal followed.
Guttman now argues that the evidence of record compels
a finding of mistake sufficient to reopen his claim.
He notes
that the claims adjuster, Debbie Whitlow ("Whitlow") mistakenly
believed that he did not complain of back pain until five months
after the injury.
He argues that this mistake, when viewed in
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the context of the entire record, formed the basis for GE's
denial of compensability, and accordingly he maintains that he
should be allowed to reopen the matter to assert the back injury
as a compensable claim.
We have closely examined Guttman's argument on this
issue and find no error in the Board's affirmation of the ALJ's
order.
As the Board properly found, the "mistake" provision in
KRS 342.125 which permits reopening is not applicable where the
alleged mistake is merely a failure to produce available
evidence.
In the matter at bar, it is uncontroverted not only
that Guttman was aware of his back pain prior to executing the
settlement, but in fact had undergone surgery on his back prior
to its execution.
KRS 342.270(1) requires a claimant to join all
causes of action which are known or should be reasonably known to
him at the time of the filing.
Guttman chose to proceed without
the benefit of counsel and to execute the second settlement
agreement even after his handwritten exclusionary language was
found unacceptable by GE.
In sum, we cannot conclude that the
Board erred in affirming the ALJ's conclusion that Guttman is not
entitled to reopen his claim for benefits.
Guttman also briefly argues that GE is estopped from
asserting that he waived the low back claim because he relied on
GE's assurance that the back injury was not included in the
settlement agreement.
We do not find this argument persuasive.
The Board properly noted that the ALJ was unconvinced that the
insurance adjuster made any misrepresentations to Guttman
concerning his ability to retain counsel or that the back injury
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claim could be raised at a later date.
These findings were
supported by substantial evidence, and the Board properly so
found.
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
For the foregoing reasons, we affirm the opinion of the
Workers' Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey T. Sampson
Louisville, KY
John G. Grohmann
Louisville, KY
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