STEVE HEIL v. WINN-DIXIE; HON. DONALD SMITH, ADMINISTRATIVE LAW JUDGE; HON. MARCEL SMITH, ADMINSTRATIVE LAW JUDGE; WORKERS' COMPENSATION FUNDS, SUCCESSOR TO SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 7, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001817-WC
STEVE HEIL
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-94-07756
WINN-DIXIE; HON. DONALD SMITH,
ADMINISTRATIVE LAW JUDGE;
HON. MARCEL SMITH, ADMINSTRATIVE
LAW JUDGE; WORKERS’ COMPENSATION FUNDS,
SUCCESSOR TO SPECIAL FUND;
AND WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE. 1
McANULTY, JUDGE:
At the reopening of the claimant, Steve Heil’s
(Heil), workers’ compensation award, an Administrative Law Judge
(ALJ) awarded certain medical benefits and temporary total
disability (TTD) benefits for a specified period beginning on
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
October 22, 2002, and continuing through December 1, 2003.
After receiving notification of the period for which the ALJ
awarded TTD, Heil filed two motions for reconsideration on the
ground that he was not at maximum medical improvement, therefore
he should have received an open-ended TTD award.
In addition to
the motions for reconsideration, Heil filed a second motion to
reopen under KRS 342.125 on the same ground.
three motions.
The ALJ denied all
Heil appealed, and the Workers’ Compensation
Board (the Board) affirmed the orders of the ALJ.
In this
petition for review, we are asked to determine if the ALJ erred
in denying Heil’s second motion to reopen.
Because we conclude
the evidence supported the TTD award, we affirm.
On February 11, 1994, while shoveling snow and ice in
a parking lot, Heil sustained a work-related injury to his back
and groin.
He filed an application for workers’ benefits.
On January 18, 1996, an ALJ issued an opinion and
award granting benefits for a 75% occupational disability
beginning June 21, 1995, and continuing for a period not to
exceed 425 weeks.
The award included provisions pertaining to
vocational rehabilitation and medical treatment.
Between 1996
and October 2002, Heil held a number of different jobs including
driving a truck, driving a bus and selling cars.
worked on October 22, 2002.
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Heil last
A little over six years after Heil received his award,
he filed his first motion to reopen under KRS 342.125.
In his
motion, he alleged that he was more disabled, either temporarily
or permanently, than he was at the time of the original decision
in his claim.
In an opinion issued November 10, 2003, the ALJ
awarded Heil TTD benefits for the period of October 22, 2002, to
December 1, 2003.
In addition, the ALJ ordered that Heil shall
recover such medical, surgical and hospital expenses as may be
reasonably required for the treatment of his occupational injury
including epidural blocks and possible surgery.
Both Heil and Winn-Dixie filed petitions for
reconsideration of the November 10, 2003 order.
both motions.
The ALJ denied
As to Heil’s motion, the ALJ reasoned that the
medical evidence took Heil off work until December 1, 2003.
But
there was no medical evidence that he was temporarily totally
disabled after that date.
The ALJ characterized the majority of
Heil’s motion for reconsideration as merely a re-argument of the
merits of the claim.
Heil filed a motion for reconsideration of the ALJ’s
denial.
In support of his second motion, Heil attached a
document that he had not previously submitted in his claim.
The ALJ denied the second motion for reconsideration.
In its
order denying the motion, the ALJ stated he was not permitted to
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consider new evidence, but was bound by the evidence in the file
at the time of the Opinion and Award.
Before the ALJ had decided Heil’s second motion for
reconsideration, Heil filed another motion to reopen.
In his
motion to reopen, Heil alleged that there had been a change of
condition and that Winn-Dixie refused to authorize additional
medical treatment and/or refused to pay for medical treatment.
In addition, Heil asserted that there had been a change of
condition in that he was more disabled, either temporarily or
permanently, than he was at the time of the decision in his
claim.
In support of his motion to reopen, Heil attached his
affidavit in which he stated that his doctor had not released
him to return to work as of December 18, 2003, yet the award
only granted him TTD benefits through December 1, 2003.
The ALJ denied the second motion to reopen.
The ALJ
held that Heil had failed to demonstrate a change in condition
since the matter was last litigated.
Heil appealed the series of orders denying his various
motions to the Workers’ Compensation Board.
the ALJ.
The Board affirmed
In so doing, the Board reasoned that Heil presented no
evidence in the first reopening proceeding that would permit the
ALJ to extend a TTD award beyond December 1, 2003.
The Board
held that the ALJ did not err in not designating the award in
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the November 10, 2003 order as interlocutory because TTD is, by
definition, payable for a finite period.
In its opinion, the Board noted that KRS 342.281,
which establishes the reconsideration procedure, limits the
scope of the ALJ’s authority on reconsideration to “the
correction of errors patently appearing upon the face of the
award, order, or decision.”
The Board went on to state that
under Kentucky case law, the ALJ does not have the authority on
reconsideration to (1) decide anew a factual issue that was
decided in his or her original opinion or (2) consider evidence
presented for the first time in a second reconsideration motion.
On the issue of the denial of the second motion to
reopen, the Board held that the ALJ did not err in denying
Heil’s second motion to reopen.
The Board stated that Heil had
failed to explain why he did not present evidence in the first
reopening proceeding to support a TTD award beyond December 1,
2003.
In the Board’s opinion, the second motion to reopen was
not a motion to reopen the claim to prove a new period of TTD,
but rather a motion to reopen the November 10, 2003 opinion and
award to modify the length of the TTD period already
adjudicated.
The Board held that the res judicata doctrine
applied; therefore the ALJ did not abuse its discretion in
overruling Heil’s second motion to reopen.
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In his petition for review of the Board’s decision,
Heil argues that on November 24, 2003, his doctor took him off
work until February 23, 2004.
Based on this fact, he asserts
that the ALJ erred in not making the opinion and award an award
of interlocutory relief and therefore not a final and appealable
order.
Moreover, Heil contends that the ALJ erred in denying
Heil’s second motion to reopen.
Winn-Dixie argues that the ALJ’s opinion is supported
by substantial evidence of probative value, thus it must be
affirmed by this Court.
Winn-Dixie further contends that the
employee has the burden of proof and the risk of non-persuasion.
The Workers’ Compensation Fund, which is the successor
to the Special Fund, filed a brief to assert that it has no
legal interest in this appeal since Heil’s motions to reopen
concern TTD and medical benefits only, and the Workers’
Compensation Fund is not liable for either of these benefits.
This Court’s function when reviewing the Board’s
affirmance of the ALJ’s rulings is to correct the Board only
where we perceive that 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.”
Western Baptist Hosp. V. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992).
This case turns on the evidence presented by Heil.
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After reviewing that evidence, we conclude that the Board’s
assessment was correct.
Heil points to no evidence in the record at the time
the ALJ issued its opinion and made an award that would have
supported an award of open-ended TTD benefits.
In lieu of
taking the depositions of his doctors, Heil submitted slips from
his doctors taking him off work.
The last record Heil submitted
was a doctor’s off-work slip, which provided that Heil could
return to work on December 1, 2003.
A couple of weeks after Heil filed the off-work slip
that provided that he could return to work on December 1, 2003,
the ALJ conducted a hearing for the purpose of receiving an
update on Heil’s current condition.
When asked about this off-
work slip, Heil acknowledged that the slip said he could return
to work on December 1, 2003.
Other than this slip, there was no
medical testimony pertaining to the duration of time that Heil
would be off work.
Nor was there any medical testimony that
Heil should remain off work after this date.
The ALJ’s decision
on the period of TTD was in accordance with Heil’s evidence.
We agree with the Board that Heil’s second motion to
reopen was a motion to reopen the November 10, 2003 opinion and
award to modify the length of the TTD period already
adjudicated.
Because the reopening involved the same parties
and the same cause of action, the doctrine of res judicata is
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applicable.
2002).
See Whittaker v. Cecil, 69 S.W.3d 69, 72 (Ky.
Under the doctrine, “a final judgment precludes
subsequent litigation not only of those issues upon which the
court was required to form an opinion and pronounce judgment but
also of matters . . . that, with the exercise of reasonable
diligence, might have been raised at the time.”
Id.
The decision of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE, WINNDIXIE:
Allan Weiss
Ferreri & Fogle
Louisville, Kentucky
BRIEF FOR APPELLEE, WORKERS’
COMPENSATION FUNDS, SUCCESSOR
TO SPECIAL FUND:
Robert L. Whittaker
Frankfort, Kentucky
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