J. L. FRENCH AUTOMOTIVE v. WILLIAM JAMES DANIEL; HON. HOWARD E. FRASIER, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: SEPTEMBER 21, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000423-WC
J. L. FRENCH AUTOMOTIVE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-05-01524
WILLIAM JAMES DANIEL;
HON. HOWARD E. FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ABRAMSON1 AND DIXON, JUDGES; ROSENBLUM,2 SENIOR JUDGE.
ABRAMSON, JUDGE: In about April or May 2004, William Daniel suffered a low back
injury in the course of his employment as a die cast machine operator for Nelson Metal
1
Judge Lisabeth H. Abramson completed this opinion prior to her appointment to the Supreme
Court effective September 10, 2007. Release of this opinion was delayed by administrative
handling.
2
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Products, d/b/a J.L. French Automotive (J.L. French), an auto parts manufacturer doing
business in Glasgow, Kentucky. Daniel’s injury, a disk herniation, eventually required
surgery. He was left, according to his surgeon, with some residual pain and with a 13%
impairment rating under the AMA Guides. In about July 2005, the surgeon determined
that Daniel had reached maximum medical improvement and released him for
employment with the following permanent restrictions: “no lifting of more than 10
pounds on a repetitive basis . . . [and] no repetitive bending, stooping and twisting or
prolonged work posture such as prolonged sitting.” Apparently pursuant to a company
policy against retaining workers with permanent medical restrictions, J.L. French
terminated Daniel’s employment in August 2005. In October of that year, Daniel filed a
workers’ compensation claim. At the final hearing on the claim, the parties agreed to
settle, and on March 3, 2006, the Administrative Law Judge (ALJ) entered an order
approving the settlement. The settlement provides, among other things, for permanent
partial disability benefits based on an impairment rating of 13% and Daniel’s inability to
return to the continual lifting and manipulating of forty-pound Jaguar crankcases which
his pre-injury employment required. In July 2006, J.L. French moved to reopen Daniel’s
claim, and it is from the denial of that motion, as affirmed in a January 26, 2007 Opinion
by the Workers’ Compensation Board, that J.L. French now appeals. J.L. French
contends that an April 2006 office note by Daniel’s surgeon removing Daniel’s work
restrictions is suggestive enough of fraud, mistake, or a change in Daniel’s disability to
compel the resumption of litigation. Agreeing with the Board that the ALJ did not abuse
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his discretion when he denied J.L. French’s motion, we affirm.
As the parties correctly note, and as our Supreme Court has several times
explained:
A final workers’ compensation award is the equivalent of a
judgment and is enforceable as such in circuit court. KRS
342.305. Nonetheless, KRS 342.125(1) permits the
reopening of an otherwise final award upon a showing of one
of several specified grounds for reopening. A motion to
reopen, accompanied by prima facie evidence of one of the
specified grounds, is the procedural device by which a party
may invoke the Department’s jurisdiction to do so.
Whittaker v. Hall, 132 S.W.3d 816, 818 (Ky. 2004). Among the statutory grounds for
reopening are fraud, mistake, and “[c]hange 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.” KRS 342.125 (1). Under the “mistake”
provision, our Supreme Court has noted, “reopening is permitted to address a mutual
mistake of fact or a misconception of the cause, nature, or extent of disability at the time
an award is rendered.” Whittaker v. Hall, 132 S.W.3d at 819. Before an adversary may
be put to the expense of relitigation, however, a party seeking reopening must make “a
reasonable prima facie preliminary showing of the existence of a substantial possibility
of the presence of one or more of the prescribed conditions from KRS 342.125.” Hodges
v. Sager Corporation, 182 S.W.3d 497, 500 (Ky. 2005) (quoting from Stambaugh v.
Cedar Creek Mining Company, 488 S.W.2d 681 (Ky. 1972)). These rules apply no less
to approved settlements than they do to fully litigated awards. KRS 342.305; Kendrick v.
Bailey Vault Company, Inc., 944 S.W.2d 147 (Ky.App. 1997). “The applicable standard
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for review is whether a decision to grant or deny a motion to reopen was an abuse of the
ALJ’s discretion.” Hodges v. Sager Corporation, 182 S.W.3d at 500.
The ALJ abused his discretion in this case, J.L. French contends, because
no reasonable ALJ could deny that J.L. French’s preliminary showing raised a substantial
possibility either that the settlement was tainted by fraud or mistake or that Daniel’s
impairment had improved. As noted, this contention is based on an April 2006 office
note by Daniel’s surgeon. After remarking on Daniel’s post-surgery history of pain and
his use of pain medicines, the note continues as follows:
There has been a conclusion to his worker’s compensation
case, being that the place of business went bankrupt and
moved out of town. No further claims are being pursued by
Mr. Daniel. He states that now that his back feels fine he has
minimal discomfort and does not require pain medicine
anymore he would like to be released to full duty work with
no restrictions so he can find employment. I certainly
released him today for full duty with no restrictions. No
prescriptions were written today. I will see him back here on
a prn basis only.
According to J.L. French, this note implies one of the following: either (a) that the
permanent restrictions imposed in July 2005 and incorporated in the March 2006
settlement were mistaken or falsely overstated, in which case Daniel was not entitled to
benefits based on an inability to return to his pre-injury employment; (b) that the April
2006 note falsely understates Daniel’s restrictions; or (c) that between July 2005 when
the restrictions were imposed and April 2006 when they were removed, Daniel’s
impairment improved. Since (a) or (c) could justify a reduction of Daniel’s award, J.L.
French maintains that the award should be reopened for consideration of the possibilities.
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The ALJ essentially determined, however, that neither (a) nor (c) was
substantially possible and so declined to reopen the award. In making that determination,
the ALJ relied on the medical evidence of record and on Daniel’s response to J.L.
French’s motion. The objective medical evidence clearly shows that Daniel suffered a
bona fide back injury, which, prior to surgery, involved nerve compression and its
resulting pain. After surgery, Daniel’s pain lessened, but he was left, in the surgeon’s
estimation, at risk of reinjury if he resumed the heavy manual labor—the continual heavy
lifting, bending, twisting, and stooping—that led to his injury. In light of this record, the
ALJ could reasonably conclude that there was virtually no possibility, much less a
substantial one, that the work restrictions the surgeon imposed in July 2005 were the
result of fraud or mistake.
The ALJ also relied on Daniel’s response to J.L. French's motion, in which
Daniel explained the circumstances that led to the surgeon’s April 2006 note. Those
circumstances include the facts that Daniel’s wife was ill with cancer and in need of
expensive treatment; that J.L. French dismissed Daniel, cutting off his income,
notwithstanding the fact that it had light-duty positions within his work restrictions; that
from August 2005, when he was dismissed, until April 2006, Daniel unsuccessfully
applied for more than twenty jobs and was told several times that the employer would not
hire someone with work restrictions; that by March 2006 Daniel faced the possibility of
mortgage foreclosure on his home; and that at about that time he applied for a relatively
light-duty position--one that involved no bending, twisting, or stooping and only the
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intermittent lifting of copper pipes weighing from one to twenty pounds—but was again
told that his restrictions precluded his employment, although if he had his restrictions
removed he would be hired. It was at that point that Daniel approached his surgeon and
requested to be released from his restrictions. The surgeon acquiesced, but not because
Daniel’s work restrictions were no longer medically appropriate. Indeed, the surgeon
does not report having examined Daniel and makes no reference to objective evidence
that Daniel’s medical condition had changed. Daniel’s pain had apparently resolved
enough to permit him to dispense with prescription pain medicine, but that is not
objective evidence that he was no longer at increased risk of reinjury. Presented with
these circumstances, the ALJ could reasonably infer that the surgeon removed Daniel’s
restrictions because Daniel’s desperate financial circumstances necessitated compliance
with the prospective employer’s demand. He could also reasonably conclude that the
removal of the restrictions did not indicate a substantial possibility that Daniel’s
impairment had improved or that he was actually capable of resuming heavy manual
labor.
J.L. French also attached to its motion to reopen the report of an
occupational medicine physician who, on the basis of the surgeon’s April 2006 note,
opined that a pain-free, restriction-free conclusion to Daniel’s surgery suggested a 10%
impairment under the AMA Guides and the ability to resume pre-injury employment.
This report, however, is not based on objective medical evidence any more than the April
2006 note itself is. It assumes, furthermore, that the removal of Daniel’s work
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restrictions necessarily implies a reassessment of Daniel’s physical condition, but, as just
discussed, that assumption is unwarranted. As this case shows, the removal of
restrictions does not necessarily imply that restrictions are not medically indicated. The
ALJ could reasonably discount this report as adding little to J.L. French’s claim and
could conclude that it did not suffice to show a substantial possibility that Daniel’s
impairment had improved.
Finally, J. L. French argues that if alternatives (a) and (c) of its three part
construction of the April 2006 note are rejected, then alternative (b), the possibility that
the April note falsely understates Daniel’s restrictions, must be true. Again, however,
this argument ignores the possibility that restrictions may be removed for non-medical
reasons. The surgeon did not represent, falsely or otherwise, that Daniel’s condition had
changed. He stated, rather, that Daniel asked to have the restrictions removed “so he can
find employment.” The surgeon did not understate the medical advisability of those
restrictions. He removed the restrictions simply so that Daniel could obtain an
appropriate job with an employer, who otherwise would have rejected his application.
Daniel and his surgeon faced an obvious dilemma, between economic hardship on the
one hand and increased medical risk on the other. Neither Daniel nor his surgeon
responded inappropriately to that dilemma, and the ALJ did not abuse his discretion by
looking behind the surgeon’s April 2006 note at the circumstances that gave rise to it.
In sum, KRS 342.125 permits the reopening of a final workers’
compensation award only upon a prima facie showing that one of the statutory grounds is
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a “substantial possibility.” The doctor’s removal of work restrictions in this case, in
response to economic rather than medical considerations, did not compel a finding that
either fraud, mistake, or reduced impairment was such a possibility. The ALJ did not
abuse his discretion, therefore, when he rejected J.L. French’s contrary claim and denied
its motion to reopen Daniel’s settlement. Accordingly, we affirm the January 26, 2007
Opinion of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jo Alice Van Nagell
Thomas C. Donkin
Clark & Ward
Lexington, Kentucky
Thomas W. Davis
Thomas W. Davis, P.S.C.
Glasgow, Kentucky
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