KROGER COMPANY v. YVONNE JONES; JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
December 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001655-WC
KROGER COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-01-87958
v.
YVONNE JONES; JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE, TACKETT, JUDGES.
TACKETT, JUDGE:
Kroger Company (Kroger) petitions for review
from an opinion of the Workers’ Compensation Board (Board) which
affirmed an award of occupational disability benefits by the
Administrative Law Judge (ALJ).
Kroger contends that the Board
erred in affirming an award for an occupational left shoulder
injury which was not pled by appellee Yvonne Jones.
For the
reasons stated below, we vacate and remand.
In May 2000, Jones became an employee of Kroger.
On
April 25, 2001, while scanning a case of soft drinks which had
become hung on the lip of the scanner, Jones felt a burning pain
in her right arm and shoulder.
Following treatment, Jones
returned to one-handed duty and was assigned to cleaning duties.
On May 26, 2001, while engaged in her cleaning duties, Jones felt
pain in her left shoulder.
Following the injury to her left
shoulder, Jones was again taken off work.
On both occasions,
Jones gave proper notice of her injury to Kroger.
On August 17, 2001, Jones filed an application for
resolution of injury claim with the Department of Workers Claims.
A medical report attached to the application reflected that the
claim was for the April 25, 2001, injury to her right shoulder;
the May 26, 2001, injury to Jones’ left shoulder was not
referenced in the application or the attachments.
On September
28, 2001, Kroger filed a notice of claim denial.
On December 6, 2001, a benefit review conference was
held.
In conjunction with the conference, a benefit review
conference order and memorandum was filed into the record.
The
order and memorandum did not specify as a contested issue that
Kroger challenged Jones’s pleading of the left shoulder injury;
however, at the December 18, 2001 hearing, counsel for Kroger
objected to any testimony in regard to the left shoulder injury
on the basis that Jones had failed to properly plead the injury.
The ALJ acknowledged that perhaps the left shoulder injury had
not been pled properly but, nevertheless, overruled the motion on
the basis that Kroger was aware of the claim from the medical
reports and was not prejudiced as a result of the deficient
pleadings.
The ALJ agreed, however, to permit Kroger to assert
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failure of pleading as an issue to be considered in the case on
the merits.
On February 6, 2002, the ALJ entered an opinion and
award on Jones’s claim.
The opinion and award determined that
Jones had properly pled her left shoulder injury and determined
that she had a 12% impairment as a result of the injuries to her
left and right shoulders.
Kroger filed a motion for rehearing on
the issue of failure to plead, which was denied.
Kroger subsequently filed an appeal with the Board
objecting to any award relating to the left shoulder injury.
On
July 3, 2002, the Board rendered an opinion affirming the ALJ’s
award of benefits as to the left shoulder injury.
This petition
for review followed.
In its petition for review, Kroger contends that the
ALJ and the Board erred by holding that Jones was entitled to
benefits for her left shoulder injury on the basis that she had
failed to properly comply with the statutes for filing a workers’
compensation claim for the injury.
In her brief, Jones concedes
that “she did not include a left shoulder injury in her Form 101,
and that she did not file a formal amendment to her Form 101.”
The ALJ addressed the issue as follows:
At issue is whether plaintiff properly pled a
left shoulder injury. The Administrative Law
Judge notes that plaintiff’s Form 101
indicates that she had shoulder pain on April
25, 2001 and it is undisputed that injury
involved plaintiff’s right shoulder.
However, it appears to the undersigned that
the defendant-employer was aware by at least
November 8, 2001, the date of Dr. Schiller’s
examination, that plaintiff was alleging a
left shoulder injury while cleaning on May
26, 2001. Further, the defendant-employer
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was served a copy of Dr. Patrick’s report on
October 29, 2001 and Dr. Patrick notes an
injury on May 19, 2001 to the left shoulder.
While the better procedure would have been
for plaintiff to have filed a formal
amendment to her application, The
Administrative Law Judge cannot conclude that
the defendant-employer suffered any prejudice
as a result of the improper pleading and
therefore cannot conclude that the plaintiff
waived her [left] shoulder injury on such a
technical ground. Wherefore, the
Administrative Law Judge concludes that
plaintiff’s left shoulder claim is not barred
by a failure to properly plead it.
In opposition to the ALJ’s holding, Kroger cites us to
two statutes: KRS 342.185(1), which requires an application for
adjustment of claim to be filed within a specified time in order
to maintain a proceeding for compensation for an injury, and KRS
342.270(1), which requires all causes of action against a single
employer to be joined, and further provides that failure to join
a claim will result in the claim being barred as waived by the
employee.
The Board acknowledged that the language of these
statutes was constructed so as to be mandatory and that
according to Jones’s own testimony, the
injuries to her separate body parts occurred
on different dates as the result of separate
and distinct traumatic events. Her failure
to include both injuries in the original
application or to file separate applications
cannot be chalked up to excusable neglect
given the clear and obvious statutory, as
well as regulatory violations. See also 803
KAR 25:010 Section 5. Certainly, the ALJ
would have been clearly authorized to exclude
Jones’s left shoulder injury testimony.
Citing to CR 15.02, however, the Board concluded that
the ALJ did not abuse his discretion in permitting and
considering Jones’s testimony and the supporting medical
evidence.
CR 15.02 states as follows:
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When issues not raised by the pleadings are
tried by express or implied consent of the
parties, they shall be treated in all
respects as if they had been raised in the
pleadings. Such amendment of the pleading as
may be necessary to cause them to conform to
the evidence and to raise these issues may be
made upon motion of any party at any time,
even after judgment; but failure so to amend
does not affect the result of the trial of
these issues. If evidence is objected to at
the trial on the ground that it is not within
the issues made by the pleadings, the court
may allow the pleadings to be amended and
shall do so freely when the presentation of
the merits of the action will be subserved
thereby and the objecting party fails to
satisfy the court that admission of such
evidence would prejudice him in maintaining
his action or defense upon the merits. The
court may grant a continuance to enable the
objecting party to meet such evidence.
Relying on Collins v. Castleton Farms, Inc., Ky. App.
560 S.W.2d 830 (1977) and Nucor Corp. V. General Electric Co.,
Ky., 812 S.W.2d 136 (1991), the Board reasoned
In the instant claim, while Kroger clearly
objected to Jones’s testimony at the time of
the final hearing, it did not object to Dr.
Patrick’s testimony when it was sought to be
admitted. Further, Kroger’s own evidence
from Dr. Schiller more narrowly defined the
issue. Additionally, the only contested
issue reserved at the benefit review
conference regarding the left shoulder was
notice. At no time was Kroger denied the
opportunity to present a defense to the
claim, and in fact did present a formidable
defense, which included not only the reports
of Dr. Schiller but also the crossexamination of Dr. Patrick. In summary,
Kroger took advantage of a fair opportunity
to defend the entirety of Jones’s claim and
we perceive no prejudice to Kroger. The
ALJ’s decision to decide the claim on the
merits does not, in our opinion, constitute a
clear abuse of discretion.
KRS 432.185 provides that “no proceeding under this
chapter for compensation for an injury or death shall be
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maintained . . .
unless an application for adjustment of claim
for compensation with respect to the injury shall have been made
with the department within two (2) years after the date of the
accident[.]” (Emphasis added.).
803 KAR 25:010 § 5 (1) similarly
provides that “[t]o apply for resolution of an injury claim, the
applicant shall file Form 101 with the following completed
documents . . .” (Emphasis added.).
KRS 342.270(1) provides, in
relevant part, as follows:
When the application is filed by the employee
or during the pendency of that claim, he
shall join all causes of action against the
named employer which have accrued and which
are known, or should reasonably be known, to
him. Failure to join all accrued causes of
action will result in such claims being
barred under this chapter as waived by the
employee.
Workers' compensation is a creature of statute and the
remedies and procedures described therein are exclusive.
Pinkston v. Teletronics, Inc., Ky., 4 S.W.3d 130, 135 (1999).
A right created by statute cannot be defeated by the application
of a common law principle.
185 S.W. 487, 488 (1916).
Eversole v. Eversole, 169 Ky. 793,
Thus, any analysis of a workers'
compensation issue is necessarily an exercise in statutory
interpretation.
Williams v. Eastern Coal Corp., Ky., 952 S.W.2d
696, 698 (1997).
The requirement of KRS 342.185 that no proceeding under
KRS Chapter 342 may be maintained unless an application is timely
filed, and the
requirements of KRS 342.270 that all claims
against an employer be joined and the provision that failure to
do so will result in waiver of the claim are couched in clear,
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plain, mandatory language.
clarity in the wording.
There is no equivocation or lack of
The meaning is simply that all claims
must be initiated by the filing of an application and if there
are multiple claims pending, the claims must be joined, and the
failure to do so will bar any claims not joined. There is no room
for interpretation here.
KRS 446.080(4) states that all words
shall be construed "according to the common and approved usage of
language."
Bowen v. Commonwealth ex rel. Stidham, Ky., 887
S.W.2d 350, 352 (1994).
In light of the above, we are persuaded that the Board
improperly applied CR 15.02 to circumvent the statutory
requirements of KRS 342.270 and KRS 342.185.
Inasmuch as
workers’ compensation is a creature of statute, and the relevant
statutes clearly set forth the procedures both for initiating a
claim and for the treatment of multiple claims, we are persuaded
that CR 15.02 cannot be employed to avoid the statutory
requirements.
With regard to the cases relied upon by the Board, we
note that Collins v. Castleton Farms, Inc., supra, applied CR
15.02 to an employer’s failure to raise an affirmative defense,
which is distinguishable from the failure to comply with a
mandatory statute to initiate a claim.
Further, Nucor Corp. V.
General Electric, supra, involved a civil lawsuit in circuit
court for negligence, breach of contract, breach of warranty and
strict liability in tort, which is also distinguishable from the
present workers’ compensation case.
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Based upon the foregoing, we conclude that the Board
erred in applying CR 15.02 to circumvent the statutory
requirements of KRS 342.270 and KRS 342.185.
Nevertheless, we
note that
[workers’] compensation laws are
fundamentally for the benefit of the injured
work[er], a just claim must not fall victim
to rules of order unless it is clearly
necessary in order to prevent chaos. . . .
The important question is whether the man got
the relief to which the law entitled him,
based upon the truth as we are now able to
ascertain it.
Riddle v. Scotty's Development, Inc., Ky. App. 7 S.W.3d 385, 387
(1999) (quoting Messer v. Drees, Ky., 382 S.W.2d 209, 212 - 213
(1964)).
With this principle in mind, we note that the statute
of limitations is yet to expire on either the left shoulder or
the right shoulder injury.
Under the circumstances of this case,
we are persuaded that Jones remains in a posture to correct the
procedural problems identified herein.
As such, we remand the
case to the ALJ with directions to, upon proper motion, permit
Jones to correct the procedural deficiencies surrounding her May
26, 2001, injury to her left shoulder.
For the foregoing reasons the case is remanded to the
ALJ for additional proceedings consistent with the opinion.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
BARBER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
BARBER, JUDGE, DISSENTING.
I respectfully dissent.
Since the statute of limitations had not run, I believe it was
within the ALJ’s prerogative to sua sponte amend the application
to conform to the pleadings.
Therefore, it would be in the
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interest of judicial economy to affirm the Workers’ Compensation
Board.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter E. Harding
Louisville, Kentucky
James D. Howes
Howes & Associates
Louisville, Kentucky
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