RADCO ASBESTOS SPECIALISTS, INC. VS. COMPENSATION LYONS (THOMAS B.), ET AL.Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
RADCO ASBESTOS SPECIALISTS, INC.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-90-36895
THOMAS B. LYONS; HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL
THOMPSON, JUDGE: This is a workers’ compensation case wherein the sole
issue raised is whether the Workers’ Compensation Board (Board) erred when it
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
held that Thomas B. Lyons’ reopened claim for temporary disability (TTD) and
medical benefits against Radco Asbestos Specialist, Inc. (Radco) was not timebarred under KRS 342.125(3). In view of our Supreme Court’s recent
pronouncement in Officeware v. Jackson, 247 S.W.3d 887 (Ky. 2008), we affirm.
In 1990, Lyons sustained a work-related injury while in the employ of
Radco and on August 23, 1993, was awarded permanent partial disability benefits
based on a thirty percent occupational disability for 425 weeks from and after June
26, 1991. In 2000, Lyons filed a motion to reopen claiming an increase in
occupational disability. Although he received an additional period of TTD, his
claim for additional total occupational disability benefits was eventually dismissed.
Lyons filed a second motion to reopen on January 26, 2004, after the
original 425 week period for income benefits had expired. In this motion, he
alleged that he suffered an increase in occupational impairment and requested
authorization for surgery recommended by his treating physician. Radco objected
to the motion for TTD benefits asserting that the four-year time limitation on
reopening had expired. The ALJ agreed with Radco and dismissed the motion to
reopen. The Board reversed.
The issue in this case involves an interpretation of KRS 342.125(3).
Although the current version was enacted after Lyons’ injury, it is a remedial
statute and its provisions are applicable to all claims for reopening irrespective of
the date of the injury. Id. at 890. KRS 342.125(8). As amended effective July 14,
2000, and in effect when Lyons filed his second motion to reopen, KRS 342.125(3)
Except for reopening solely for determination of the
compensability of medical expenses, fraud, or
conforming the award as set forth in KRS
342.730(1)(c)2, or for reducing a permanent total
disability award when an employee returns to work, or
seeking temporary total disability benefits during the
period of an award, no claim shall be reopened more than
four (4) years following the date of the original award or
order granting or denying benefits, and no party may file
a motion to reopen within one (1) year of any previous
motion to reopen by the same party.
Radco complains that the Board erred as a matter of law when it concluded that the
phrase “during the period of an award” included payment of medical benefits. It
urges that since the employer is responsible for future medical benefits incurred as
a result of a work-related injury, such an interpretation leads to the illogical
conclusion that virtually all reopening claims for TTD benefits are without time
In Officeware, the Kentucky Supreme Court approved the
construction given the statute by the Board in the present case and rejected the
argument Radco advances. When discussing its remedial nature, the Court
addressed the purpose of the 2000 amendment to KRS 342.125 and in doing so,
contradicted any contention that the Board’s construction lacked logic. The Court
Although the 1996 version of KRS 342.0011(11)(a)
provided the first statutory definition of TTD, although
KRS 342.730(1)(a) referred to TTD as well as to
permanent total disability benefits, and although KRS
342.020(1) entitled a worker to reasonable and necessary
medical treatment “during disability,” the 1996 version
of KRS 342.125 was silent concerning a reopening to
seek TTD. The Board determined in 1998 that the
legislature did not intend for that silence to prohibit a
worker from enforcing a right to TTD benefits during
recovery from surgery. When the legislature met next, in
2000, it amended KRS 342.125(3) to add a motion
seeking TTD to the list of exceptions for which
reopening is permitted at any time. The amendment
became effective on July 14, 2000, which was within
four years after December 12, 1996, and before the fouryear reopening period expired in any claim. Like the
exceptions enacted in 1996, the TTD exception concerns
the procedure for reopening. KRS 342.125(8) provides
that the exceptions to reopening apply to all claims;
therefore, it permits any claim to be reopened at any time
upon proof that an injury causes TTD.
Id. at 891 (footnotes omitted). By virtue of its decision, the Supreme Court
quieted any debate concerning the General Assembly’s intent in adding temporary
total disability as an exception to the four-year limitation on reopening and the
meaning of the phrase “during the period of an award.” The exception to the fouryear limitation includes an award of medical benefits.
The opinion and order of the Board is affirmed.
BRIEF FOR APPELLANT:
James G. Fogle
Denis S. Kline
BRIEF FOR APPELLEE, THOMAS
Wayne C. Daub