WINN-DIXIE VS. COMPENSATION HEIL (STEVEN R.), ET AL.Annotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.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NOT TO BE PUBLISHED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-94-07756
ADMINISTRATIVE LAW JUDGE;
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY, SENIOR
HENRY, SENIOR JUDGE: Winn-Dixie appeals from an Opinion of the Workers’
Compensation Board (Board) vacating the Opinion and Order of the
Senior Judge Michael L. Henry, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Administrative Law Judge (ALJ) which determined that the limitations period for
Steven R. Heil to file a motion for temporary total disability (TTD) benefits had
expired. As a result of this determination, the ALJ also declined to address Heil’s
claim for medical benefits. The Board’s Opinion remanded the cause to the ALJ
for a redetermination of all issues upon the merits. For the reasons stated below,
FACTUAL AND PROCEDURAL BACKGROUND
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 subsequently filed
an application for workers' compensation benefits.
On January 18, 1996, the ALJ issued an opinion and award granting
Heil 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. Heil last worked on October 22, 2002.
On March 17, 2003, Heil filed his first motion to reopen under
Kentucky Revised Statutes (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 was entitled to 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. The ALJ,
however, determined that KRS 342.125(8) barred reopening for additional
permanent income benefits. Heil filed two motions for reconsideration of the
determination, both of which were denied. Heil subsequently appealed the ALJ’s
decision to the Board.
On December 24, 2003, Heil filed a second motion to reopen, which
was also denied. He likewise appealed the denial of the second motion to reopen.
The two appeals were consolidated, and the ALJ’s determinations were affirmed
by the Board, this Court (see Heil v. Winn-Dixie, 2005 WL 2469698 (Ky.App. Oct.
7, 2005)), and the Supreme Court (see Heil v. Winn-Dixie, 2006 WL 1359671 (Ky.
May 18, 2006)).
In the meantime, Heil filed the present motion to reopen – his third –
on September 10, 2004. The motion sought additional TTD benefits and the
payment of medical expenses. On October 26, 2007, the ALJ issued an Opinion
and Order denying Heil’s motion to reopen upon the basis that the limitations
period for filing a motion to reopen upon a claim for additional TTD benefits had
expired. Apparently based upon her determination that the limitations period for
TTD benefits had expired, the ALJ also declined to address Heil’s claim for the
payment of medical expenses. Heil filed a motion for reconsideration, which was
Heil appealed the ALJ’s decision to the Board, which determined that
because the intervening TTD award for the period of October 22, 2002, through
December 1, 2003, interrupted the original 425-week award, the limitations period
had not expired. This petition for review followed.
Before us, Winn-Dixie contends that the Board did not have the
authority to vacate and remand the ALJ’s decision because Heil had failed to
properly preserve the issue for the Board’s consideration. Winn-Dixie argues that
to the contrary, Heil had, in fact, conceded that the limitations period had expired.
In her Opinion and Order of October 26, 2007, the ALJ addressed the issue as
The first issue that needs to be considered is whether or
not Plaintiff is barred by the applicable statute of
limitation with regard to this motion to reopen. I
considered the evidence in its entirety and the arguments
of the parties. It is clear [from] the Opinion and Award
and from the date of the Motion to Reopen that 425
weeks of permanent partial disability benefits ended prior
to that date. Plaintiff states that the law in effect at the
time of the motion to reopen, KRS 342.125[,] as in effect
July 24, 2000[,] states, “[e]xcept 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 a[n] 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 . . . .” I am persuaded that the period
of award ended prior to the date that the Motion to
Reopen was filed. Therefore, Plaintiff’s Motion to
Reopen for additional temporary total disability benefits
is barred by the applicable statue of limitations.
In vacating the foregoing, in its March 13, 2008, Opinion, the Board
stated as follows:
From the above language, it appears the ALJ concluded
the 425 weeks of Heil’s initial award ended prior to the
date the third motion to reopen was filed, and Heil’s
motion to reopen for additional temporary disability
benefits was barred b KRS 342.125(3). KRS 342.125(3)
reads as follows:
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.
Even though it appears all parties believed Heil’s last
motion to reopen was filed outside the 425 weeks of the
initial award, we believe the ALJ and the parties are
mistaken. It is not disputed the first day of the award of
benefits for 425 weeks was June 21, 1995. Further,
through October 21, 2002, Heil’s permanent partial
disability benefits had not been interrupted or changed.
However, the period of TTD benefits awarded by the
ALJ in the opinion and award, dated November 10, 2003
awarding TTD from October 22, 2002 through December
1, 2003, extended Heil’s award of permanent partial
disability benefits. Therefore, Heil’s award of permanent
partial disability benefits for 425 weeks was suspended
after October 21, 2002, and did not resume until
December 2, 2003. The Supreme Court alluded to this in
footnote 1 of its opinion rendered May 18, 2006; saying,
“The claimant’s partial disability award extended for 425
weeks from June 21, 1995. Therefore, it would have
expired in August, 2003, absent an intervening period of
Accordingly, we have computed the period during which
permanent partial disability benefits were paid through
October 21, 2002, and it appears Heil received PPD
benefits for 382 weeks and 6 days. We have also
computed the number of weeks PPD benefits were to be
paid after December 1, 2003, up until the time Heil’s
motion to reopen for additional TTD benefits was filed
on September 10, 2004. After December 1, 2003, up to
and including September 10, 2004, Heil was to be paid
PPD benefits for 40 weeks and 4 days.2 Therefore, as of
the date Heil filed his third motion to reopen, on
September 10, 2004, the initial award of 425 weeks had
not expired.3 KRS 342.730(1)(b) reads in part as
Any temporary total disability period within the
maximum period for permanent, partial disability
benefits shall extend the maximum period but shall
not make payable a weekly benefit exceeding that
determined in subsection (1)(a) of this section.
Suffice to say, the ALJ, as well as the parties, were
mistaken in concluding that the initial award period of
425 weeks had expired at the time Heil’s motion to
reopen was filed on September 10, 2004. Accordingly,
we remand this matter to the ALJ for a ruling on all
issues raised in Heil’s motion to reopen as well as those
issues set forth in the hearing order of August 29, 2007.
While Heil and Winn-Dixie raise a number of issues in
(WCB Footnote No. 3) Because the effect of Winn-Dixie’s TTD payments in 2004 is in
dispute, we purposely have not considered the effect of Winn-Dixie’s voluntary payment of TTD
benefits from April 1, 2004 through July 7, 2004 in making this calculation.
(WCB Footnote No. 4) Without considering the effect of TTD payments made by Winn-Dixie,
Heil would have been paid, as of September 10, 2004, PPD benefits for 423 weeks and 3 days.
their briefs, if appropriate, those issues, in light of our
ruling, should be addressed to the ALJ on remand.4
The Board’s conclusion that the limitations period had not expired is
correct. As previously noted, the award period commenced June 21, 1995, and
was to last for 425 weeks. A period of 425 weeks equates to 8 years, 9 weeks.
Thus, in the normal course of events Heil’s award period would have ended in late
However, the period of Wednesday, June 21, 1995, thorough Monday,
October 21, 2002, equates to 2,680 days, which translates to 382 weeks, 6 days.6
There followed a 404-day interruption of the permanent partial disability period
while Heil drew TTD benefits for the period Tuesday, October 22, 2002, through
Sunday, November 30, 2003. Beginning Monday, December 1, 2003, Heil again
began receiving his permanent partial disability benefits. As of Friday, September
10, 2004 (the day he filed his present motion to reopen), he had received benefits
during this post-interruption period for 284 days, or 40 weeks, 4 days, since the
recommencement of the benefits. Adding the first period of 382 weeks 6 days and
the second period of 40 weeks and 4 days produces a total duration of permanent
(WCB Footnote No. 5) While we are cognizant of the cases of National Southwire Aluminum,
Division of Southwire Rod & Cable v. Stephen Veach, 2002-CA-001605-WC (rendered February
7, 2003 and designated not to be published) and Officeware v. Stephen Jay Jackson, 2006-CA001911-WC, (rendered March 30, 2007 on appeal to the Kentucky Supreme Court and not yet
final), in as much as the period for the payment of PPD benefits had not expired when Heil filed
his third motion to reopen and since we are remanding, we do not believe it is necessary to
discuss those cases as they relate to the issues raised by the parties in their briefs.
June 21, 1995 + plus 8 years + 9 weeks.
We have facilitated our review of this issue with the calendar calculator contained at the
partial disability benefits payments of 423 weeks, 3 days. Accordingly, the
Board’s calculation is correct. As this is less than 425 weeks, Heil’s second
motion to reopen was filed “during the period” of his permanent partial disability
award in conformance with KRS 342.125(3).
Winn-Dixie alleges that despite the ALJ’s error, the Board had no
authority to correct it and, it follows, neither does this Court. We disagree.
We first note that Winn-Dixie interposed the limitations period as a
defense to Heil’s motion to reopen and, accordingly, it had the burden of proof
upon the issue. Whittaker v. Hardin, 32 S.W.3d 497, 499 (Ky. 2000) (The burden
of proving an affirmative defense is on the employer). The evidence of record
does not support its defense, and the ALJ’s finding that the limitations period had
expired was, accordingly, clearly erroneous.
Further, while Heil did not specifically challenge Winn-Dixie’s
defense for the reasons stated by the Board (clear error by the ALJ in her
calculations), he very much sought to rebut Winn Dixie’s defense on other
grounds. He identified at least four grounds for rebuttal: (1) that the language
contained in KRS 342.125(3) “or seeking temporary total disability benefits during
the period of an award” (emphasis added) be construed to mean during the period
of an award, including the period of entitlement to medical benefits; (2) waiver of
the limitations period by Winn-Dixie; (3) that Winn-Dixie was estopped from
asserting the limitations period; and (4) the law of the case doctrine based upon
footnote 1 of the Supreme Court’s opinion of May 18, 2006. (Footnote 1 stated
“[t]he claimant’s partial disability award extended for 425 weeks from June 21,
1995. Therefore, it would have expired in August, 2003, absent an intervening
period of TTD. (Emphasis added)).
The Supreme Court has applied the palpable error standard in
workers’ compensation cases where failure to do so would result in a manifest
injustice. Durham v. Copley, 818 S.W.2d 610 (Ky. 1991) (Denial of employee's
motion to reopen workers' compensation claim constituted manifest injustice,
where employee's counsel did not learn of important new evidence relating to
employee's injury until seven weeks after administrative law judge's decision to
dismiss claim). See also Kentucky Rules of Civil Procedure (CR) 61.02 (A
palpable error which affects the substantial rights of a party may be considered by
the court on motion for a new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief may be granted
upon a determination that manifest injustice has resulted from the error).
Because we believe that the palpable error standard is appropriate for
application where, as here, the ALJ’s decision is clearly at variance with the
statute, we need not decide whether Heil’s various challenges to Winn-Dixie’s
limitations period defense precisely preserved for review the issue as framed and
decided by the Board. Upon application of the palpable error standard, we affirm
the Board’s determination of the limitations period issue. Western Baptist Hosp. v.
Kelly, 827 S.W .2d 685, 687-88 (Ky. 1992) (When reviewing one of the Board's
decisions, this Court will only reverse the Board when it has overlooked or
misconstrued controlling law or so flagrantly erred in evaluating the evidence that
it has caused gross injustice.)
For the foregoing reasons the opinion of the Workers' Compensation
Board is affirmed.
THOMPSON, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wayne C. Daub