CORNERSTONE CARE, LLC v. REBECCA DAWSON; HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: JUNE 22, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001874-WC
CORNERSTONE CARE, LLC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-01244
REBECCA DAWSON;
HON. RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE; AND
THE WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND TAYLOR, JUDGES; PAISLEY,1 SENIOR JUDGE.
TAYLOR, JUDGE: Cornerstone Care, LLC, petitions this Court to review an Opinion
of the Workers' Compensation Board (the Board) that vacated and remanded an opinion
of the Administrative Law Judge (ALJ) dismissing Rebecca Dawson's claim. We affirm.
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
Dawson suffered a work-related injury on July 31, 1999, while employed
by Cornerstone Care, LLC (Cornerstone). Dawson filed a claim for workers'
compensation benefits, and the claim was eventually settled by agreement of the parties.
The settlement was approved by the ALJ on May 4, 2001, and provided permanent partial
disability (PPD) benefits based upon a 15% impairment rating attributed to the workrelated injury. Dawson's permanent impairment rating was 23% with 8% attributed to an
active pre-existing injury.
On December 19, 2003, Dawson filed a “Motion to Reopen For TTD Due
to Change in Condition.” Therein, Dawson sought to reopen the claim to obtain
temporary total disability (TTD) benefits as a result of a recent surgical spine procedure.
Cornerstone filed a motion opposing the reopening and specifically argued that Dawson
failed to prove entitlement to TTD benefits.
By order entered January 29, 2004, the ALJ granted Dawson's motion to
reopen. In that order, the ALJ specifically stated that the motion to reopen was for TTD
benefits. Thereupon, the claim was assigned to an ALJ for “further adjudication.”
Cornerstone then voluntarily paid TTD benefits to Dawson. Consequently, Dawson filed
a motion stating that Cornerstone was voluntarily paying TTD benefits and requesting
that the claim be held in abeyance. The motion was granted. The record indicates that
the claim was held in abeyance until Dawson reached maximum medical improvement
and the claim was returned to the active docket.
-2-
By opinion and order entered April 7, 2006, the ALJ determined that
Dawson's claim was for permanent total disability (PTD) benefits. Additionally, the ALJ
particularly framed the issues presented for adjudication by agreement of the parties as:
Has the plaintiff experienced a change to warrant reopening
under KRS 342.125?, [sic] Is the claimant Permanently
Totally Disabled?, [sic] What is the extent of permanent
partial disability?, [sic] Is any exclusion proper because of
pre-existing active disability or impairment?, [sic] and Is the
disability or impairment proximately caused by the injury?
The ALJ ultimately denied Dawson's “motion to reopen” for PTD benefits and
determined that Dawson failed to present a prima facie case under Kentucky Revised
Statutes (KRS) 342.125(1)(d) to justify reopening for PTD benefits. Specifically, the
ALJ concluded that Dawson's claim for PTD benefits could not be reopened because she
failed to demonstrate an increase in her impairment rating from the time of the original
award:
At the time of the settlement, the parties identified the report
of Dr. Patrick at 23% as the basis for the settlement. There is
other evidence that has been obtained retrospectively to
confirm that Ms. Dawson had a 23% impairment at the time
of the settlement. The plaintiff acknowledges that her
impairment remains the same. . . . A plaintiff must establish a
change in impairment before a claim can be reopened under
KRS 342.125(1)(d). . . .
It does appear that there has been a worsening of
condition insofar as Ms. Dawson's functional abilities and she
may well be totally disabled. However, without a change in
the impairment, the claim cannot be reopened. The remaining
issues need not be addressed.
-3-
Being unsatisfied with the decision, Dawson sought review with the Board.
In a twenty-three page opinion, the Board vacated the ALJ's opinion and remanded the
claim for a decision on Dawson's claim for PTD benefits upon the merits. The Board
held the ALJ erred by concluding that Dawson could not reopen for failing to prove a
change in impairment under KRS 342.125(1)(d). Rather, the Board opined that
Cornerstone failed to timely object to Dawson's reopening for PTD benefits; thus, her
claim for PTD benefits was “tried by implied consent of the parties.” The Board pointed
out that KRS 342.125(1)(d) only addressed the necessary prima facie showing sufficient
to initially reopen a claim; however, once a claim was reopened, KRS 342.125(1)(d) had
no relevance to a decision upon the merits. As Dawson's claim for PTD benefits
proceeded by “implied consent” to a decision on the merits, the Board concluded that
KRS 342.125(1)(d) was inapplicable and the ALJ erred as a matter of law by concluding
otherwise:
Had Cornerstone filed a motion to dismiss at the time
Dawson's claim was removed from abeyance or otherwise
timely objected to the reopened claim proceeding to a
decision on the question of permanent total disability, the
outcome might be different. However, as we explain
hereinabove, it is plain from our review of the proceedings
below that the issue of Dawson's entitlement to an increase in
permanent income benefits first arose when her claim was
removed from abeyance and was, thereafter, tried by implied
consent of the parties.
Thus, we agree that the ALJ erred as a matter of law in
dismissing Dawson's claim based on the standards applicable
to a prima facie motion to reopen brought under KRS
342.125(1)(d). The claim was properly reopened under KRS
342.125(3). On remand, the ALJ shall consider the merits of
-4-
Dawson's claim on reopening. Specifically, the ALJ shall
determine whether Dawson has met her burden to prove that
she is now permanently totally disabled pursuant to the
versions of KRS 342.730 and KRS 342.0011(11)(c) in effect
on the date of her injury, as established by a comparison of
Dawson's disability at the time of the original settlement with
her disability at the time of reopening.
Upon remand, the Board directed the ALJ to reach the merits of Dawson's claim and to
determine whether Dawson was permanently and totally disabled. It is from this opinion
that Cornerstone now seeks judicial review.
Cornerstone argues that the Board erroneously vacated the ALJ's opinion
denying Dawson's reopening for PTD benefits. We affirm the Board's opinion albeit
upon different grounds. See Vega v. Kosair Charities Comm. Inc., 832 S.W.2d 895
(Ky.App. 1992).
In the opinion and order denying Dawson's reopening for PTD benefits, the
ALJ interpreted KRS 342.125(1)(d) as requiring the claimant to submit medical evidence
of a worsening of her impairment (i.e. an increase in impairment rating) after the date of
the original award. The ALJ specifically noted that Dawson's impairment rating was
23% at the time of her original award and that Dawson admitted that the rating had not
changed at reopening. While the ALJ acknowledged that the evidence demonstrated a
worsening of Dawson's “functional abilities” and that “she may well be totally disabled,”
the ALJ, nevertheless, concluded that “without a change in the impairment, the claim
cannot be reopened.” We believe this conclusion and the ALJ's interpretation of KRS
342.125(1)(d) to be in error.
-5-
KRS 342.125 provides, in part:
(1) Upon motion by any party or upon an administrative law
judge's own motion, an administrative law judge may
reopen and review any award or order on any of the
following grounds:
....
(d) Change of disability as shown by objective medical
evidence of worsening or improvement of impairment due
to a condition caused by the injury since the date of the
award or order.
In Colwell v. Dresser Instrument Division, 217 S.W.3d 213 (Ky. 2006), the
Supreme Court held that an increased impairment rating was not the sole method for
proving a “worsening of impairment” necessary to reopen a claim for PTD benefits under
KRS 342.125(1)(d). See also, Farris v. City of Louisville, 209 S.W.3d 486 (Ky.App.
2006). Instead, the Colwell Court stated that a “worsening of impairment” under KRS
342.125(1)(d) may also be proved by “objective medical findings”; such findings were
defined as “information gained through direct observation and testing of the patient
applying objective or standardized methods.” Colwell, 217 S.W.3d at 218 (citation
omitted). To demonstrate a worsening of impairment for PTD benefits under KRS
342.125(1)(d), the Court specified that the objective medical findings must:
[D]emonstrate that an injured worker suffers a greater loss,
loss of use, or derangement of a body part, organ system, or
organ function due to a condition caused by the injury, they
demonstrate a worsening of impairment. A worsening of
impairment may or may not warrant increasing the worker's
permanent impairment rating under the Guides.
-6-
Colwell, 217 S.W.3d at 218. It was also recognized that a claimant may, of course, still
prove a worsening of impairment by showing an increased impairment rating when
pursuing a reopening for PTD benefits under KRS 342.125(1)(d).
Under the dictates of Colwell, we hold that the ALJ erroneously denied
Dawson's “motion to reopen” for PTD benefits under KRS 342.125(1)(d) because her
impairment rating had not increased since the original award. When seeking to reopen a
claim for PTD benefits, a worsening of impairment under KRS 342.125(1)(d) may be
proved not only by an increased impairment rating but also by objective medical findings
demonstrating “a greater loss, loss of use, or derangement of a body part, organ system,
or organ function due to a condition caused by the injury . . . .” Colwell, 217 S.W.3d at
218. In the opinion and order, the ALJ remarked that Dawson's functional abilities had
worsened and that she may be totally disabled. While the record certainly supports
reopening Dawson's claim, we believe this cause should be remanded to the ALJ for
reconsideration of his decision to deny reopening of Dawson's claim for PTD benefits.
Additionally, we cannot agree with the Board that the ALJ erred by
reaching the question of whether Dawson presented a prima facie case necessary to
reopen the claim for PTD benefits under KRS 342.125(1)(d). The Board believed that
Cornerstone's failure to object to reopening for PTD benefits before the ALJ rendered a
decision upon the merits of the claim amounted to waiver. However, the ALJ specifically
stated that the question of reopening for PTD benefits under KRS 342.125(1)(d) was
being tried by agreement of the parties. Moreover, we are unconvinced that a decision to
-7-
reopen under KRS 342.125(1)(d) may not be later revisited upon the merits of the claim
as such decision is innately interlocutory. Nevertheless, considering the unique facts of
this case, we conclude that the ALJ properly considered the question of whether Dawson
presented a prima facie case to justify reopening under KRS 342.125(1)(d).
In sum, the ALJ's opinion and order is vacated and this cause remanded to
the ALJ to reconsider reopening Dawson's claim for PTD benefits under KRS
342.125(1)(d) and if reopened, to render a decision upon the merits. In so doing, the ALJ
shall be guided by the recent Supreme Court decision in Colwell v. Dresser Instrument
Division, 217 S.W.3d 213 (Ky. 2006). Thus, the opinion of the Board is affirmed upon
different grounds.
For the foregoing reasons, the Opinion of the Workers' Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
H. Brett Stonecipher
Lexington, Kentucky
David R. Marshall
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.
