HALL (GERALDINE) WORKERS VS. COMPENSATION APPALACHIAN REGIONAL HEALTHCARE, INC. , ET AL.Annotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-66747
APPALACHIAN REGIONAL HEALTHCARE, INC.;
HON. LAWRENCE F. SMITH, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION
** ** ** ** **
BEFORE: ACREE, DIXON AND TAYLOR, JUDGES.
ACREE, JUDGE: Geraldine Hall appeals from a decision of the Workers’
Compensation Board which reversed the Administrative Law Judge’s order on a
petition for reconsideration. In his original order, the ALJ found Hall sustained a
three percent whole body impairment due to a work-related injury. In her petition
for reconsideration, Hall claimed the ALJ erred by assigning an impairment rating
before she had reached maximum medical improvement. The ALJ agreed and
issued a second order rescinding his prior finding of partial permanent impairment
and granting total temporary disability until Hall could schedule and recover from
knee replacement surgery. On appeal, the Board reversed the second order
because the ALJ exceeded his statutory authority by changing a factual finding.
At the time of her injury, Hall was working for Appalachian Regional
Healthcare, Inc. as a registered nurse. Her job duties included providing in-home
nursing care. She was required to carry supplies, turn patients in their beds, and
help them get in and out of bed. In addition, some of her patients lived in areas
with poorly maintained roads and driveways, resulting in Hall having to walk up
hills to reach some homes. She was sixty years old and had been in the nursing
profession for over twenty years when she was injured.
In November 2003, Hall was alighting from her vehicle onto a dirt
and gravel road when her left knee twisted and gave out. She fell toward the
ground, catching herself on the side of her vehicle and ending up in a squatting
position. Hall was able to finish her shift and to work the next day, but she later
sought medical care for the pain in her knee. She was prescribed pain medication
and taken off work. Hall notified her employer of her injury and filed a claim for
workers’ compensation benefits. Dr. Gregory D’Angelo performed arthroscopic
surgery on Hall’s knee in March 2004 to relieve symptoms caused by her injury
the previous November. She remained on light duty after the surgery until June
2004 when she temporarily ceased work because her employer was unable to
accommodate her medical restrictions. Hall was released from restrictions and
returned to her regular duties in July 2004.
A year and a half later, Hall’s knee troubles began again. She
experienced pain and swelling and her left knee sometimes would lock up. Dr.
D’Angelo recommended that Hall undergo knee replacement surgery. In March
2006 at a benefits review conference, the ALJ extended the time for taking proof to
allow the parties to present evidence of whether the knee replacement surgery was
necessary and compensable. Hall requested total temporary disability in
September, claiming that Appalachian could no longer provide her with
employment within her medical restrictions.
The ALJ issued an order awarding benefits on May 8, 2007. The
order specifically stated that the only contested issues were the extent and duration
of disability and the compensability of the proposed knee replacement surgery.
Opinions from several doctors were offered, rating Hall’s disability as low as one
percent and as high as seven percent. The ALJ accepted the three percent whole
person impairment found by Dr. D’Angelo as the most persuasive, although he
noted the doctor’s caution that Hall’s rating could increase following knee
replacement surgery. The ALJ was also persuaded by Dr. D’Angelo’s opinion that
the knee replacement surgery was necessary because of Hall’s work-related injury.
In addition, the ALJ refused to find that Hall was permanently totally disabled,
despite her inability to return to the work for which she was trained, and found that
she was entitled to vocational rehabilitation.
Both parties filed petitions for reconsideration, but only Hall’s
arguments are relevant to this appeal. Hall claimed that the ALJ’s decision that she
was entitled to knee replacement surgery should have prevented any determination
of her level of impairment until after she reached maximum medical improvement
post-surgery. She further requested temporary total disability benefits until after
she recovers from the surgery. The ALJ found that the original order contained
errors and entered an amended order on July 24, 2007. In this second order, the
ALJ rescinded the portion of the prior order assigning Hall an impairment rating.
He placed her claim in abeyance until she should reach maximum medical
improvement after knee replacement surgery and ordered Appalachian to pay
temporary total disability benefits from the date on which Hall ceased employment
until she recovers fully from surgery.
Appalachian filed a second petition for reconsideration, arguing that
the ALJ abused his discretion when he rescinded the previous determination that
Hall was permanently partially impaired and placed the claim in abeyance. The
petition was denied, and Appalachian appealed to the Board presenting the same
argument. In its decision reversing and remanding, the Board agreed that the ALJ
abused his discretion when he modified his previous decision, made on the merits
of the claim. The Board recognized that Kentucky Revised Statute (KRS) 342.281
only allowed the ALJ to correct patent errors appearing on the face of his prior
order. Further, the Board reminded Hall that KRS 342.125 would allow her to
move to reopen the claim should she experience a period of temporary total
disability post-surgery, or an increase in permanent partial disability once she has
fully recovered. Consequently, the ALJ was ordered to reinstate his order of May
8, 2007. This appeal followed.
On appeal, Hall argues that the ALJ did not abuse his discretion in
rescinding his finding that she was partially permanently disabled and placing the
claim in abeyance pending her recovery from knee replacement surgery. KRS
342.281 specifically limits the ALJ’s authority in response to a petition for
reconsideration to “the correction of errors patently appearing upon the face of the
award[.]” “This statutory limitation . . . expresses a legislative policy that the
[ALJ] shall not have authority to reverse [himself] on the merits of a claim.” BethElkhorn Corp. v. Nash, 470 S.W.2d 329, 330 (Ky. 1971). The Kentucky Supreme
Court has further held that “a logical extension of the fact-finder's authority to
correct errors on petition for reconsideration is the authority to decide a still
unresolved question on the merits.” Bullock v. Goodwill Coal Co., 214 S.W.3d
890, 893 (Ky. 2007). Thus, the outcome of Hall’s appeal turns on the question of
whether the ALJ’s second order decided a question which had not been resolved on
the merits in the order of May 8, 2007.
Hall argues that permanent partial disability benefits could not be
properly awarded until she reached maximum medical improvement which, she
contends, will not occur until sometime after her knee replacement surgery.
Therefore, she claims the ALJ made a patent error in failing to award her
temporary total disability benefits until such time as she recovered from the
proposed knee replacement surgery. We disagree with this characterization of the
As previously noted, the only issues before the ALJ at the time the
original order was issued were the extent and duration of Hall’s disability and the
compensability of the surgery recommended by Dr. D’Angelo. 803 Kentucky
Administrative Regulation §13(14) states that issues which are not contested at the
benefit review conference shall not be subject to further proceedings. Thus, when
Hall and Appalachian stipulated to all of the issues regarding her claim, except the
two identified as contested in the ALJ’s May 8, 2007, order, Hall failed to preserve
maximum medical improvement as an issue. Further, all of the medical experts
who submitted evidence opined that Hall had reached maximum medical
improvement from the injury and the first surgery.
After reviewing the medical records of several physicians who treated
or evaluated Hall, the ALJ made a factual finding that she suffered a three percent
permanent impairment. He further ordered Appalachian to cover the cost of the
proposed knee replacement surgery. In response to the parties’ petitions for
reconsideration, the ALJ issued a second order addressing Hall’s newly raised
contention that she would not reach maximum medical improvement until after her
recovery from the surgery.
[Appalachian] has filed a response correctly noting
that the only contested issues in the claim were extent
and duration and the compensability of [Hall’s] total
knee replacement. The issue of whether [Hall] was at
maximum medical improvement was never preserved
and [Hall] did not request that the claim be placed in
abeyance or that [temporary total disability] be
While this Administrative Law Judge agrees with
the defendant’s position, it is clear that since I awarded
the medical treatment [that Hall] has sought, the claim
must be placed in abeyance during the time of her
recovery from surgery until she reaches maximum
medical improvement. I also agree that temporary total
disability benefits should be restarted and continue
pursuant to the statute until [maximum medical
improvement] is achieved. To that extent, my original
opinion, order, and award contained errors on its face
relating to those issues and [Hall’s] petition should be
Having reviewed the petitions for reconsideration
filed by the parties and being otherwise sufficiently
advised, IT IS HEREBY ORDERED that the opinion,
order, and award of May 8, 2007 is hereby corrected and
amended as follows:
1. The determination of occupational disability is
hereby rescinded. . . .
(Order of the Administrative Law Judge, dated July 24, 2007).
Although Hall would have us believe that the ALJ’s second order
merely dealt with issues that were previously unresolved, this simply is not so.
Hall argued before the ALJ that she was one hundred percent occupationally
disabled. The ALJ made a factual finding that Hall’s permanent impairment was
only three percent. It was this finding, made on the merits of the medical evidence
presented at the hearing, which the ALJ’s second order sought to rescind. The
extent of Hall’s permanent partial disability was not an issue left unresolved by the
ALJ’s initial order. Thus, the language in the second order which attempted to
unmake a factual finding exceeded the statutory authority granted by KRS
342.281. Consequently, the Board properly determined that the ALJ’s subsequent
decision must be reversed and remanded for reinstatement of the original order.
As noted by the Board, Appalachian does not dispute that it would be
liable for temporary total disability benefits in the event that Hall does decide to
undergo the knee replacement surgery. However, the General Assembly has also
furnished Hall with a legislative remedy to address that situation. KRS
342.125(1)(d) permits an ALJ to reopen a claim and review an award where
“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” causes a
change in a claimant’s disability. Thus, Hall could request temporary total
disability during her recovery from knee replacement surgery and even an increase
in the award of partial permanent disability benefits if Dr. D’Angelo’s prediction
that her level of permanent impairment would increase after the surgery is correct.
For the foregoing reason the order of the Workers’ Compensation
Board, reversing and remanding this case to the ALJ with instructions, is affirmed.
BRIEF FOR APPELLANT:
Glenn M. Hammond
BRIEF FOR APPELLEE,