RONALD BOWLING v. THE CHISHOLM COAL COMPANY; HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002225-WC
RONALD BOWLING
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-91837
v.
THE CHISHOLM COAL COMPANY;
HON. SHEILA C. LOWTHER,
CHIEF ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Ronald Bowling (hereinafter referred to as
“Bowling”) petitions this Court to review an opinion of the
Workers’ Compensation Board (hereinafter referred to as the
“Board”) entered on September 24, 2003.
In its opinion, the
Board affirmed an order entered by the Hon. Sheila C. Lowther,
Chief Administrative Law Judge (hereinafter referred to as
“CALJ”), in which the CALJ denied Bowling’s motion to reopen his
previously settled workers’ compensation claim.
In his petition for review, Bowling argues the CALJ
erred when she denied his motion to reopen since he had made a
prima facie showing that his former employer, Chisholm Coal
Company, had committed fraud regarding the settlement of
Bowling’s claim.
Finding that Bowling failed to establish a
prima facie case to justify reopening his workers’ compensation
claim, this Court affirms both the CALJ’s decision and the
Board’s opinion.
On January 20, 1998, while working for Chisholm Coal
Company (hereinafter referred to as “Chisholm”), Bowling
tripped, fell, and injured his low back, right knee and right
leg.
On September 8, 1999, Bowling and Chisholm entered into a
settlement agreement that resolved his workers’ compensation
claim.
This agreement was reviewed and approved by Arbitrator
J. Kevin King.
In the agreement, Bowling agreed to be assigned
an 11% impairment rating and agreed to a lump sum payment of
$25,000.00 as compensation for his permanent partial disability.
At the time the parties entered into this agreement, applicable
law required any workers’ compensation claimant who was to
receive a lump sum payment that represented weekly benefits
greater than $10.00 was to state in the settlement agreement
that there is a reasonable assurance that the worker has an
-2-
adequate source of income during the disability.
Revised Statutes (KRS) 342.265(2).
Kentucky
The parties used a standard
agreement form which asked if the claimant had an adequate
source of income.
In the agreement, the appellant listed as an
adequate source of income, “Health/Sick Benefits” in the amount
of $167.00 per week.
The agreement also stated, “[h]as applied
for disabled Social Security benefits.
Also UMWA pension.”
On February 24, 2003, Chisholm filed suit against
Bowling in Pike Circuit Court.
In its complaint, Chisholm
alleged that it paid Bowling sickness and accident benefits
pursuant to its sickness and accident plan.
Chisholm alleged
that pursuant to its plan, Bowling was required to indemnify it
for any Social Security disability benefits Bowling received
that exceeded what Chisholm paid to him as sickness and accident
benefits.
Chisholm alleged it had overpaid Bowling by
approximately $4,900.00 and it sought reimbursement for this
amount.
On April 10, 2003, Bowling filed a motion to reopen
his workers’ compensation claim.
He argued that it was his
understanding that the settlement agreement resolved all claims
between himself and Chisholm.
Thus, when Chisholm brought suit
against him, it violated the terms of the agreement.
In other
words, Bowling asserted Chisholm had waived its right to seek
indemnification for sickness and accident benefits paid to him.
-3-
Bowling argued Chisholm committed fraud when it led him to
believe he would have no further obligations to Chisholm.
As
proof of Chisholm’s fraud, Bowling pointed to the settlement
agreement in which health and sick benefits were listed as an
adequate source of income for him during the time of his
disability.
On May 14, 2003, the CALJ denied the motion to reopen.
Bowling subsequently filed a petition for reconsideration.
Bowling argued the settlement agreement demonstrated that
Chisholm had committed fraud since it never intended to pay
Bowling the health and sick benefits, yet it listed them in the
settlement agreement.
When Chisholm listed the benefits as an
adequate source of income, it represented to Bowling that he
would continue to receive those benefits.
Thus, Bowling argued
he had established a prima facie showing that probable cause
existed to justify reopening his claim.
On June 20, 2003, the
CALJ denied Bowling’s petition for reconsideration.
Bowling
appealed the CALJ’s denial to the Worker’s Compensation Board.
In a short opinion, the Board affirmed the CALJ’s decision of
the CALJ.
This review follows.
In his petition for review, Bowling argues he
established a prima facie case to justify reopening his workers’
compensation claim.
Bowling argues that Chisholm perpetrated
fraud not only against him but also against the arbitrator who
-4-
approved the settlement agreement.
Bowling asserts that
Chisholm led him to believe that all possible claims between
them had been settled or waived when they entered into the
agreement.
To corroborate his allegation, Bowling again refers
to the health and sick benefits that were listed as an adequate
source of income in the settlement agreement.
Bowling cites numerous cases which stand for the
proposition that even if the parties to a settlement agreement
have committed no fraud against one another, if they have made
misrepresentations in the settlement agreement such
misrepresentations may constitute fraud against the ALJ.
Such
fraud is contrary to the public policy on which workers’
compensation law is based and would justify the rescission of
the settlement agreement.
Given this proposition, Bowling
argues that had the arbitrator known Chisholm never intended for
Bowling to receive the health and sickness benefits, the
arbitrator would have been prohibited by KRS 342.265(2) from
approving the settlement.
According to KRS 342.125(1), upon either the ALJ’s own
motion or upon motion made by any party to a workers’
compensation action, an ALJ may reopen and review any award upon
one of four grounds: fraud; newly discovered evidence; mistake;
or change of disability as shown by objective medical evidence.
The party seeking to reopen must make a reasonable prima facie
-5-
preliminary showing of a substantial possibility that one or
more of the conditions listed in KRS 342.125(1) exist. Stambaugh
v. Cedar Creek Mining Company, Ky., 488 S.W.2d 681, 682 (1972).
In its opinion, the Board stated:
We first note a settlement agreement
constitutes a contract by and between
parties. The scope of the agreement must be
determined primarily by the intent of the
parties as expressed within the four corners
of the document. Here, there exists no
expression of an intent on the part of
Chisholm to settle or waive any actions
other than those that are directly part of
the worker’s compensation claim. In the
“other information” section of the
agreement, it is clearly specified Bowling
is to receive an amount of money in
consideration of a waiver of the right to
reopen for future indemnity benefits as well
as the settlement, including rehabilitation
costs. No other matters are addressed in
this section of the award. Although Bowling
contends the agreement was to extinguish all
claims, such an intent may not be presumed.
Huff Contracting v. Sark, Ky. App., 12
S.W.3d 704 (2000).
We disagree with Bowling’s argument that the
listing of “health/sick” benefits as source
of income on the agreement form constitutes
an agreement to pay those benefits. Bowling
argues Chisholm never intended to pay those
benefits. However, Chisholm did pay the
benefits. It was only after Bowling began
to receive Social Security disability
benefits that Chisholm sought to recover the
S & A benefits based upon his receipt of
Social Security benefits. Had the
Arbitrator been aware Bowling would receive
the S & A benefits but would be required to
reimburse the plan if there were an overlap
with Social Security benefits, the
Arbitrator would certainly be allowed to
-6-
approve the agreement. Additionally, the
Arbitrator would have been allowed to
consider the UMWA pension in determining
whether to approve the agreement.
Based on the foregoing, we agree with the
CALJ that the dispute in this action cannot
be the basis for reopening. The dispute
relates to an offset in the S & A benefits
plan for payments made for Social Security
disability benefits. The dispute is outside
the jurisdiction of the CALJ. Jurisdiction
of the subject matter cannot be conferred by
agreement, waiver, estoppel, or consent.
Duncan v. O’Nan, Ky., 451 S.W.2d 626 (1970).
Finally, we note that at no time has Bowling
alleged he was entitled to any additional
workers’ compensation benefits. It is
apparent from the motion to reopen and from
Bowling’s arguments on appeal that what he
seeks to recover is relief from reimbursing
Chisholm for the overlap of Social Security
with payments under the S & A benefits plan.
The proper forum for Bowling’s dispute is in
Pike Circuit Court.
As the Board has cogently and sufficiently addressed
the merits of the issues raised herein, we adopt the Board’s
reasoning as our own.
This Court would add that contrary to
Bowling’s argument, the settlement agreement simply does not
contain any evidence to support his allegation that Chisholm
committed fraud.
Bowling has failed to establish a prima facie
showing of fraud to justify reopening his claim.
For the foregoing reasons, the opinion of the Worker’s
Compensation Board is affirmed.
ALL CONCUR.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert J. Greene,
Kelsey E. Friend Law Firm
Pikeville, Kentucky
Denise Kirk Ash
Lexington, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
