LATONYA R. HODGE v. FORD MOTOR COMPANY; HON. BRUCE W. COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 19, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000241-WC
LATONYA R. HODGE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-99152
v.
FORD MOTOR COMPANY;
HON. BRUCE W. COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Latonya R. Hodge has petitioned for review of
an opinion of the Workers’ Compensation Board entered on January
8, 2003, which reversed the Administrative Law Judge’s
determination that Hodge had joined her March 8, 2000, injury
claim “by implication” as a part of her December 9, 1998, injury
claim.
Having concluded that the ALJ properly considered
evidence related to Hodge’s March 8, 2000, injury claim and
properly made an award based on that claim, and that the Board
has overlooked or misconstrued controlling statutes or precedent
by concluding otherwise, we reverse and remand for further
proceedings.
Hodge began working for Ford Motor Company in 1993, as
a vehicle-assembly technician.
On February 29, 2000, Hodge
filed a Form 101 application for resolution of injury claim with
the Department of Workers’ Claims.
Hodge claimed that during
the course of her employment with Ford, “something in [her]
lower back snapped” when she bent over to pick up a beam
weighing between five to six pounds.
On her Form 101, Hodge
listed December 9, 1998, as the date on which this injury
occurred.
Over the course of the next two years while the
resolution of Hodge’s claim was pending, numerous motions were
filed by both parties and numerous medical records were
submitted as evidence.
Although Hodge never moved to amend her
Form 101 to allege any other injury or injury date, she did
submit evidence indicating that another work-related injury had
occurred on March 8, 2000.1
On July 18, 2002, the ALJ entered an
opinion, order and award regarding Hodge’s claim.
The ALJ found
that while Hodge had failed to establish that she suffered a
1
According to the record, Hodge claimed that she was pushing a rack loaded
with stock when she slipped and injured her back.
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work-related injury on December 9, 1998,2 she had established
that she sustained a compensable, work-related injury on March
8, 2000.
In a footnote, the ALJ explained the reasoning for
granting Hodge benefits based upon the March 8, 2000, injury:
The [ALJ] notes that [Hodge] in [her]
Form 101 did not allege a March 8, 2000
injury, nor was motion made to amend the
Form 101 to allege said injury. However,
the evidence reflects that an event occurred
on this date and that the case was practiced
and briefed as if an event occurred.
Moreover, in its proposed stipulation filed
May 24, 2000[,] and November 27, 2001,
[Hodge] lists [her] date of injuries as
[December 7, 1998] and March 8, 2000,
respectively. Although the ALJ is cognizant
that KRS3 342.270(1) requires that the
Plaintiff shall join all causes of action
which have occurred and which are known to
[her], the ALJ finds that by implication,
[Hodge] has done so.
As a result of this finding, the ALJ ruled that Ford and/or its
insurer would be responsible for the payment of various benefits
and expenses.4
Ford appealed the ALJ’s ruling to the Board.5
In an
2
The ALJ found that any injury Hodge may have suffered on December 9, 1998,
was not work-related and was instead due to pre-existing back problems.
3
Kentucky Revised Statutes.
4
Ford and/or its insurer were ordered to pay Hodge’s medical expenses related
to a back surgery performed on May 10, 2000. In addition, Hodge was awarded
$509.03 per week, plus applicable interest charges, for temporary total
disability benefits for the period March 16, 2000, through November 16, 2000.
This award was based on an occupational disability rating of 30%. The ALJ
also awarded permanent partial disability benefits based on a 20% impairment
rating.
5
Hodge did not appeal the ALJ’s finding that she did not suffer a
compensable, work-related injury on December 9, 1998.
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opinion entered on January 8, 2003, a divided Board reversed the
ALJ’s determination that Hodge had suffered a compensable, workrelated injury on March 8, 2000.
The Board held that since
Hodge had failed to “join all causes of action against the named
employer,” in her Form 101, Hodge had waived any claim for
compensation for the March 8, 2000, injury.6
This appeal
followed.
Hodge’s sole claim of error on appeal is that the
Board erred by holding that Hodge waived any claim she had for
her March 8, 2000, injury by not raising the claim in her Form
101, or amending her Form 101 to include the March 8, 2000,
injury.
Hodge claims that since her case was practiced and
briefed as if a work-related injury allegedly occurred on March
8, 2000, the ALJ properly allowed this claim to go forward even
though Hodge’s Form 101 was never formally amended to add a
claim for that injury.
We agree.
Pursuant to CR7 15.02, “[w]hen 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.”8
In Nucor Corp. v. General
6
The majority of the Board relied upon an unpublished Opinion from this
Court, which had one judge concurring in result only and one judge
dissenting.
7
Kentucky Rules of Civil Procedure.
8
CR 15.02 provides in full as follows:
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Electric Co.,9 our Supreme Court discussed the purpose of CR
15.02, and explained how the rule should be interpreted by
Kentucky courts:
Bertelsman & Philipps explains “[o]ne
of the reasons” for the rule “is to take
cognizance of the issues that were actually
tried.”
“The Rule goes further than
authorizing amendments to conform
to the evidence. It provides that
if issues not raised by the
pleadings are tried by express or
implied consent, they shall be
treated as if they had been so
raised [citation omitted].
. . . .
The decision whether an issue has
been tried by express or implied
consent is within the trial
court’s discretion and will not be
reversed except on a showing of
clear abuse.
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.
9
Ky., 812 S.W.2d 136, 145 (1991)(quoting 6 Bertelsman and Philipps, Kentucky
Practice, p. 318-19 (4th ed. 1984).
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. . . .
It seems clear that at the trial
stage the only way a party may
raise the objection of deficient
pleading is by objecting to the
introduction of evidence on an
unpleaded issue. Otherwise he
will be held to have impliedly
consented to the trial of such
issue.”
Furthermore, the Supreme Court has noted that “[t]here
is a need for uniformity and stability in our approach to the
application of the civil rules to Workers’ Compensation
matters.”10
The uniformity principle was followed in Divita v.
Hopple Plastics,11 where this Court held that since the defendant
employer’s misrepresentation defense “was tried before the ALJ,”
the defense was properly considered by the ALJ even though the
employer had failed to raise the issue in the pre-hearing
conference order.12
This Court went on to state that CR 15.02
applied to workers’ compensation proceedings, explaining that
“we would not apply a more stringent rule [than CR 15.02] to an
administrative hearing.”13
10
Whittaker v. Wright, Ky., 969 S.W.2d 209, 211 (1998).
11
Ky.App., 858 S.W.2d 214 (1993).
12
Id. at 215-16.
13
Id. at 216. See also Collins v. Castleton Farms, Inc., Ky.App., 560 S.W.2d
830, 831 (1977)(stating that an alleged affirmative defense could have been
considered even though not formally raised where the “issue was tried by
implied consent of [the] parties”).
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With these principles in mind, we turn to the facts of
the case sub judice.
We first note that Ford does not dispute
the fact that evidence was submitted regarding a possible workrelated injury occurring on March 8, 2000.
For example, Hodge’s
deposition testimony and medical records from Dr. Joseph G.
Werner, Jr., support Hodge’s claim that she sustained a workrelated injury on March 8, 2000.
Further, in its brief to this
Court, Ford has not directed us to any point in the record where
it objected to the introduction of evidence related to the March
8, 2000, injury, and our own review of the record has likewise
revealed no objection to this evidence.
Finally, we note that
Ford actively defended Hodge’s claim that her March 8, 2000,
injury was work-related.14
Therefore, since this issue was
actually tried before the ALJ, and Ford made no objection to the
introduction of evidence related to this issue, the ALJ did not
abuse his discretion by considering the evidence supporting
Hodge’s claim that she sustained a work-related injury on March
8, 2000, and by awarding her benefits based on that injury.
In support of its claim that the ALJ improperly
considered evidence related to the March 8, 2000, injury, and
based an award on that injury, Ford argues in favor of a strict
interpretation of KRS 342.270(1), which requires an injured
14
See Nucor, 812 S.W.2d at 146 (stating that a party is not prejudiced when a
claim has been tried by “implied consent” if the party had a fair opportunity
to defend the claim).
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party to join all causes of action against a single employer
under the same claim.
In particular, Ford argues:
When the legislature uses the word
“shall” in a statute, that means that the
actions directed by the statute are
mandatory, and that “substantial compliance”
is not sufficient. . . . KRS 342.270(1)
says[:]
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 [emphasis original].
According to Ford, Hodge was required to formally amend her Form
101 in order for the ALJ to consider evidence and to make an
award based on the March 8, 2000, injury.
We disagree.
While it is true that unless the context requires
otherwise, the word “shall” is deemed to be mandatory language,15
Ford’s interpretation of KRS 342.270(1) would have the effect of
ignoring CR 15.02, which, as we stated previously, has been held
to be applicable to workers’ compensation proceedings.
Similar
to KRS 342.270(1), CR 15.02 also contains mandatory “shall”
language.
Specifically, CR 15.02 states in part that “[w]hen
issues not raised by the pleadings are tried by express or
15
KRS 446.010(29).
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implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings” [emphasis
added].
Hence, we conclude that CR 15.02 and KRS 342.270(1) are
not in conflict with one another, and may be construed in a way
to give effect to both provisions.
Therefore, CR 15.02 and the
purpose behind the rule need not “give way” to KRS 342.270(1).16
Accordingly, the ALJ properly considered evidence and made an
award based on Hodge’s March 8, 2000, injury, and the Board
overlooked or misconstrued controlling statutes or precedent by
concluding otherwise.17
Based on the foregoing, the opinion of the Board is
reversed and this matter is remanded for further proceedings
consistent with this Opinion.
BUCKINGHAM, JUDGE, CONCURS AND FILES SEPARATE OPINION.
DYCHE, JUDGE, CONCURS IN RESULT ONLY AND FILES
SEPARATE OPINION.
BUCKINGHAM, JUDGE, CONCURRING:
I concur with the
majority opinion but desire to write separately out of concern
that it may be read too broadly under other circumstances.
I
agree that CR 15.02 is applicable in this case because the issue
of the March 8, 2000, injury was tried before the ALJ with
16
Dawson v. Hensley, Ky., 423 S.W.2d 911, 912 (1968)(holding that where a
civil rule is inconsistent with or in conflict with a special statutory
procedural requirement, the civil rule “must give way” to the statute).
17
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
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Ford’s implied consent.
However, I do not believe this opinion
should be read so broadly as to mean that compliance with KRS
342.270(1) is unnecessary in all cases where evidence is
presented concerning the unpleaded injury.
In fact, a party may
prevent the application of CR 15.02 to an unpleaded issue by
raising an objection at the trial level.
See Nucor Corp., 812
S.W.2d at 145, quoting 6 Bertelsman & Philipps, Kentucky
Practice, p. 318-19 (4th ed. 1984).
that in this case.
Ford apparently did not do
I believe the failure of the Board to make
this distinction led it to erroneously rely on our prior opinion
in an unpublished case.
DYCHE, JUDGE, CONCURRING IN RESULT:
result reached by the majority opinion.
I concur with the
Ford made no objection
to the amendment by implication of the cause of action herein.
In most cases, compliance with the statute is mandatory, and
resort to the Civil Rules is secondary.
This case is an
exception.
BRIEF FOR APPELLANT:
John V. Hanley
Louisville, Kentucky
BRIEF FOR APPELLEE, FORD MOTOR
COMPANY:
Wesley G. Gatlin
Nancy E. Anderson
Louisville, Kentucky
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