GARY SKINNER v. HALE CONTRACTING, INC.; HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 24, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001677-WC
GARY SKINNER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-82485
v.
HALE CONTRACTING, INC.; HON. MARCEL
SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
BEFORE:
** ** ** ** **
JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Gary Skinner has petitioned this Court for
review of an opinion of the Workers’ Compensation Board entered
on July 23, 2004, which affirmed an opinion and award of an
Administrative Law Judge.
Having concluded that the opinion of
the Board fairly and adequately sets out the facts of this case
and applies the correct law to those facts, we affirm.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
Our standard of review as set forth by our Supreme
Court in Western Baptist Hospital v. Kelley, provides that the
function of this Court in reviewing the Board “is to correct the
Board only where 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.”2
Since the Board’s opinion meets the
requirements of Western Baptist Hospital and concisely addresses
the issue raised by Skinner in his petition, we adopt it in full
as our own:
Gary Skinner (“Skinner”) appeals from
an opinion rendered on February 12, 2004[,]
by Hon. Marcel Smith, Administrative Law
Judge (“ALJ”). Skinner contends the ALJ
erred in considering a medical report, which
was submitted by Hale Contracting, Inc.
(“Hale”) pursuant to an order entered
without formal written objection from
Skinner, without granting [or] permitting
Skinner time to subject the medical report
to cross examination or submit rebuttal
evidence.
Skinner’s Form 101 (Application for
Resolution of Injury Claim) was filed on
January 14, 2002. It did not allege any eye
injury.
A notice of scheduling order [was]
issued on January 30, 2002. It provided for
a 60 day period for the taking of proof by
both parties, followed by a 30 day period
for [Hale], and a 15 day rebuttal period
thereafter for [Skinner].
2
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
-2-
On April 19, 2002, Skinner filed a
motion to amend his Form 101 “to include all
injuries and treatment.” Skinner indicated
the motion was being made “so that it is
clear he is seeking compensation for
injuries to his right lower leg, his back,
and to his right shoulder.” The motion did
not allege any eye injury.
On May 14, 2002, Skinner filed a motion
to place the claim in abeyance. The motion
was granted in an order dated May 15, 2002.
On December 2, 2002, Skinner filed a
motion to remove the claim from abeyance and
set it for a final hearing. Hale filed a
response on December 10, 2002, asking that
the parties be given additional proof time
before scheduling of a final hearing.
On January 21, 2003, an order was
entered granting Skinner’s motion to amend
his claim “to include injury to his right
lower leg, back and right shoulder”;
granting Skinner’s motion to remove the
claim from abeyance; and granting the
parties additional time in which to complete
the taking of proof. The order provided for
a 30 day period for the taking of proof by
both parties, followed by a 30 day period
for [Hale], and a 15 day period thereafter
for [Skinner].
On February 10, 2003, an agreed order
was rendered. Skinner was granted until
March 10, 2003[,] to complete proof.
On June 11, 2003, Hale filed a motion
to schedule a benefit review conference.
Hale indicated in its motion that “[i]t
appears that all proof has been taken in the
claim and the parties are now ready to
proceed.” Skinner filed no objection to the
motion. In an order rendered on June 24,
2003, Hale’s motion was granted and a
benefit review conference was scheduled for
September 11, 2003.
-3-
On July 23, 2003, Hale filed a medical
fee dispute contesting the compensability of
treatment Skinner received in April and May
of 2003 for problems with his right eye.
Skinner then filed, on July 30, 2003, his
second motion to amend his Form 101,
alleging a right eye injury.
On August 8, 2003, Hale filed a written
objection to Skinner’s second motion to
amend the Form 101. Hale also filed a
written special answer. Hale asserted a
limitations bar.
A benefit review conference order and
memorandum, dated September 11, 2003, gave
the parties up to the time of the final
hearing to take proof on issues relating to
Skinner’s assertion of a right eye injury.
A formal hearing was set for December 17,
2003[,] pursuant to an order rendered on
October 8, 2003.
An order was rendered on December 17,
2003, in conjunction with the final hearing
held on that date. The order prospectively
deemed the Form 107 from Dr. Adam Kaufman to
have been filed as evidence for Skinner, and
noted the Form 107 would be filed. The Form
107 was not physically filed in the written
record until December 22, 2003.
The December 17, 2003[,] order also
gave [Hale] until January 23, 2004[,] to
file medical proof in response to the Form
107 of Dr. Kaufman.
An order was entered on January 20,
2003, administratively reassigning the claim
to Hon. Marcel Smith, Administrative Law
Judge. The claim had previously been
handled by another ALJ.
On January 26, 2003, Hale filed a
motion to extend its proof time. A medical
-4-
report from Dr. Richard Eiferman, dated
January 19, 2004, was also filed.
Skinner filed a written response to
Hale’s motion for an extension of proof
time, and also requested the ALJ to whom the
claim had been reassigned to hear Skinner’s
testimony live to assist in making a general
determination regarding credibility.
Skinner’s written response did not contain
an objection to Hale’s request for an
extension of proof time.
In an order rendered on February 6,
2004, Hale was granted until February 12,
2004[,] to complete its proof. The order
directed [Hale’s] counsel to send any
additional evidence by facsimile
transmission to the ALJ, in addition to
filing.3
On February 12, 2004, Hale filed an
additional report, dated February 11, 2004,
from Dr. Richard Eiferman. Counsel for Hale
certified, in filing the additional report,
that copies were sent by facsimile
transmission to [Skinner’s] counsel and to
the ALJ on February 11, 2004.
Skinner argues on appeal that, pursuant
to 803 KAR 25:010, Sections 8 and 15, the
ALJ’s February 6, 2004[,] order granting
Hale’s motion for an extension of time to
complete its proof automatically entitled
him to an extension of time for rebuttal.
The customary timeframe for taking
proof is set forth in 803 KAR 25:010,
Section 8. That timeframe begins “from the
date of issuance by the commissioner of the
scheduling order.” 803 KAR 25:010, Section
8(1). In Skinner’s claim, that timeframe,
3
“Hale has moved to strike Skinner’s reply brief because it refers to
statements allegedly made by Hale’s counsel in a telephonic conference.
Since we are confining our review to the written record and are not
considering any statement allegedly made in that telephonic conference, we
decline to strike the reply brief.”
-5-
as extended, had already expired before
Skinner filed his second motion to amend his
Form 101 and allege a right eye injury. No
motion to extend that customary proof
schedule was filed within 5 days prior to
its expiration, as required by 803 KAR
25:010, Section 15(2).
Consequently, the additional taking of
proof for which provision was made in the
September 11, 2003[,] benefit review
conference order and memorandum was grounded
not in the provisions of 803 KAR 25:010,
Section 8, but in a different regulatory
provision, 803 KAR 25:010, Section 13(15),
which authorizes an ALJ to “order that
additional discovery or proof be taken
between the benefit review conference and
the date of the hearing.” 803 KAR 25:010
Section 13(15), unlike 803 KAR 25:010,
Section 8, does not specify by whom, in what
order or in what timeframe additional proof
shall be taken. Hence, those matters are
governed by the terms of the order allowing
additional discover or proof between the
date of the benefit review conference and
the date of the hearing.4 Moreover, since
803 KAR 25:010, Section 13(15) does not
specify by whom, in what order or in what
timeframe additional proof shall be taken,
there is no response or rebuttal time of an
adverse party subject to automatic extension
under 803 KAR 25:010, Section 15(5)(b)
[emphasis original].
In Skinner’s case, the September 11,
2003[,] benefit review conference order and
memorandum made no provision for additional
rebuttal discovery or proof time. No
objection to this order or request for
rebuttal time appears of record.
4
“We note no order was entered granting Skinner’s motion to amend his Form
101 to include his allegation of injury to his right eye. The September 11,
2003[,] benefit review conference order and memorandum merely noted that
‘limitations on eye claim’ was a contested issue. We do not decide here if a
different result might have been warranted had the ALJ entered a written
order formally permitting amendment of the claim.”
-6-
The subsequent December 17, 2003[,]
hearing order gave [Hale] until January 23,
2004[,] to file medical proof in response to
the Form 107 of Dr. Kaufman. It made no
provision for additional rebuttal discovery
or proof time. No objection to this order
or request for rebuttal time appears of
record.
When Hale filed a motion on January 26,
2003[,] to extend its proof time, Skinner
filed a response which neither objected nor
requested additional proof time to rebut any
additional filing by Hale.
Failure to assert a right to rebuttal
may result in loss of that right. Maxey v.
R.R. Donnelley and Sons Company, Ky. App.,
859 S.W.2d 130, 132 (1993). In Skinner’s
case, he failed to assert the right when the
benefit review conference memorandum and
order was rendered; failed to assert the
right when the December 17, 2003[,] hearing
order was rendered; and failed to assert the
right when Hale filed its motion for
extension of time on January 26, 2003.
Under the unique facts of this case,
therefore, we find no reversible error.
Finally, we note Hale has argued in the
alternative, in response to Skinner’s
appeal, that the ALJ correctly ruled
adversely to Skinner on limitations and
notice issues pertaining to Skinner’s claim
of a right eye injury. In view of our
resolution of the issue raised in
[Skinner’s] brief, we find it unnecessary to
address these alternative arguments advanced
in support of affirmance.
Based on the foregoing reasons, the opinion of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Hicks
Edgewood, Kentucky
Douglas A. U’Sellis
Louisville, Kentucky
-8-
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