SPEEDWAY/SUPERAMERICA VS. COMPENSATION ELIAS (MAZEN), ET AL.Annotate this Case
RENDERED: OCTOBER 24, 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NOT TO BE PUBLISHED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-99-54592
HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
KELLER, JUDGE: Speedway/SuperAmerica (Speedway) appeals from the
opinion of the Workers’ Compensation Board (the Board) affirming the ALJ’s
award of caregiver benefits to Mazen Elias (Mazen), for services provided by his
wife Deana Elias (Deana).1 In its appeal, Speedway argues Mazen and Deana did
not offer sufficient evidence to support the claim for caregiver benefits; the Board
erred when it found that Mazen and Deana provided reasonable grounds to explain
the delay in making a claim for such benefits; the ALJ and Board erred in finding
the Forms 114 submitted by Mazen were “fully completed”; the Board erred by
relying on facts not in evidence and in considering legal issues not previously
raised by the parties when it found the Forms 114 were fully completed; and,
because Deana was not a named party, the ALJ lacked jurisdiction to award her
any benefits. Mazen essentially argues the Board correctly determined that the
opinion of the ALJ is supported by substantial evidence and cannot be overturned
on appeal. For the following reasons, we affirm.
The parties do not dispute the underlying facts; therefore, we will only
briefly summarize those facts. Mazen suffered a head injury, a ruptured spleen,
injury to his adrenal gland, and fractures to his right hip, femur, pelvis, scapula,
and right foot as a result of a motor vehicle accident while at work on December 1,
1999. Following the accident, Mazen underwent six orthopedic surgeries, most of
which proved to be unsuccessful. As a result of his injuries, Mazen’s left leg is
one and a half inches shorter than his right leg. Because of his leg length
discrepancy and ongoing pain, Mazen has difficulty walking and is restricted to
We note that Speedway argues that the ALJ awarded caregiver benefits to Deana. However,
the ALJ’s opinion awards those benefits to Mazen. Therefore, we will refer to the benefits as
using a wheelchair when out of his house. However, he does walk to a limited
degree with a walker while in the house. In addition to his physical limitations,
Mazen suffers from dementia and a neurocognitive disorder that result in anxiety,
depression, short-term memory loss, slurred speech, and impaired judgment.
Based on Mazen’s physical and mental conditions, the ALJ found him
to be totally disabled. Speedway does not challenge that finding. However, as
noted above, Speedway is challenging the ALJ’s award of caregiver benefits to
Mazen for the care provided to him by Deana. We will summarize the evidence
with regard to that care in detail below.
On October 20, 2003, Mazen submitted a Form 114 requesting
payment for caregiver services that had been provided by Deana from January 1,
2000, to October 20, 2003. The Form 114 listed the type of service as
“convalescent care,” but it did not set forth what specific services were performed
or the time expended performing each service. Furthermore, the Form 114 did not
contain the name and address of the physician ordering the services.
In response, Speedway stated it was denying the request for payment
for services rendered prior to August 21, 2003, because the request had not been
timely made. As to any requests for payment for services rendered after August
21, 2003, Speedway “conditionally” denied payment pending receipt of additional
information. Specifically, Speedway requested: a statement from Mazen’s
physician “demonstrating the medical necessity for any” services Deana provided;
a statement from Mazen’s physician stating that Mazen could not perform any of
the services himself; and “a detailed list of the various activities [Deana] is
performing including the date, time, and duration of each activity.” Speedway
stated that, following receipt of the requested information, it would “be in a better
position to evaluate” the requests for payment.
Mazen’s counsel continued to submit Forms 114 approximately every
sixty days and Speedway continued to deny payment because the requested
additional information had not been provided. On August 30, 2004, counsel for
Mazen submitted a handwritten note from Deana stating as follows:
Degree of help depends on condition.
Time of accident full care.
After each surgery he required a lot of care.
Now he is recovering from last injuries [sic] and needs
Dressing (lower extremities); bathing, to the bathroom
[sic] exercises (physical therapy would have him do at
Medications, injections and IVs [sic] (he is not on these
now, but was for about 2 months)
Cleaned & dressed wounds
Help in & out of house, car
heat, ice, massaged muscles (back & legs)
In response to this correspondence and Deana’s note, Speedway stated
that, in order “to fully evaluate whether (1) the services she is providing are
compensable and (2) to determine the amount of time spent in such activities” it
a daily breakdown of the activities [Deana] was
performing for Mazen Elias such as a medical provider
would keep records. She should note the date, activity,
the time that the activity began, and the time that the
activity ended, along with a description of how Mr. Elias
Mazen continued to submit Forms 114 that were consistent with the first one;
however, he did not submit any additional documentation or information.
Deana testified that she has worked as an assistant to the editor of a
publishing company for 26 years, working 37.5 to 40 hours per week. In addition
to her full-time job, Deana provides care for Mazen and cares for the couple’s five
children. We note that, at the time of the accident, the children ranged from six
months to ten years of age.
For approximately one year following the accident, Mazen received
care from a home health nurse for approximately eight hours a day. Deana assisted
the home health nurse as necessary and, with the cooperation of her employer,
worked primarily from home during that year. Sometime during the second year,
Deana was advised the home health nurse could provide services half a day every
day or come for a full day, but for only two to three days a week. Deana requested
that the nurse come for full days, so she could arrange her work schedule
accordingly. With the home health nurse attending to Mazen from approximately
7:30 a.m. to 3:00 p.m. two to three days a week, Deana was able to return to
working primarily at her office. When the home health nurse left for the day, and
on days when the home health nurse did not come to the house, Deana would “take
over,” bathing Mazen, assisting him when he used the bedside commode, changing
dressings, cleaning stapled surgery sites, preparing and giving injections, assisting
with home exercises, preparing and dispensing medications, and helping him dress
The level of care Mazen requires has changed over time. Since late
2002, Mazen has been able to take care of more of his personal needs. However,
he continues to require assistance with basic activities of daily living. Deana
estimated she spends at least six hours a day tending to Mazen, describing her
typical day as follows:
In the mornings he has some medications he has to
take on an empty stomach so usually I give those to him.
He has to wait an hour. Other medicines he needs to
have with food so therefore I have to wait and give him
something in the morning to eat and then give him his
food [sic]. That’s what we do before - - his medicine I
mean. We keep an eye on his blood pressure. Do his - check his sugar levels every morning. Then basically I
head off to work and come back
I come back around 3:00 most days. Some days I
have to come home and check on him at noon. I have
done that before, he’s had problems and sometimes fallen
and I’d have to come home and help him. We do
physical therapy when I come in. We do some
strengthening and range of motion and these are papers
that were given to me by physical therapy.
They gave me directions and papers to follow and
when we were in physical therapy they said it was very
important that he keep these up when he wasn’t there
during the day, you know, on his own in order to keep his
strength up. Otherwise his muscles and everything
would lock up and he would lose a lot more than he had
already lost. So we do that. He’s able, of course, to feed
himself, but he doesn’t do any of the cooking. He
doesn’t do anything around the house like that because,
you know, he forgets. He’s left stuff on, if he’s tried to
before. It’s dangerous you know.
When asked at her deposition if she had any documents to verify what
she does to care for Mazen and the time she spends doing so, Deana responded that
not have any documents. . . . I do not have time to
document everything that I do for him, and, I mean, quite
frankly, it just takes all my time. . . . Between my work
and taking care of him, I don’t have time to document.
With regard to how much time she spent caring for Mazen, Deana stated:
[h]e had different things throughout his surgeries that
would pop up and had to be done, and I - - I mean, this is
eight years ago. I cannot give you specific times, that it
took me this long to change a bandage or it took me this
long to do his IV or it took me this long - - you know, I
can give you an about figure, but I can’t tell you exact
When asked, at the hearing, why she did not have written records
regarding the care she provided to Mazen, Deana stated:
I have not done that simply for time issues. I - my focus has always been from the beginning and I’ve
never realized that this would go on for this long. In the
beginning we were told three months, you know, I
thought he would be up and moving. I had no idea that
this was going to continue. I had no idea. At the time,
even his doctors didn’t know the extent of all his injuries.
We’ve slowly been uncovering things as we’ve went
[sic] along. He’s got - - I’m up with him from the time I
come in, you know if he goes anywhere, it’s a special trip
for - - you know, we have to do special things to take him
with us. At night I’m up with him, he’s up during the
night, I’m up during the night. We use heat - - I mean
ice. We did use heat in the beginning, now use mostly
ice. That feels a little bit better for him. He uses his Tinz
[sic] unit. You know, I get these things for him, I help
him, so there’s just a whole lot that I was not expecting in
Furthermore, Deana testified no one from Speedway ever directly told her she
needed to document her time spent providing care to Mazen. If anyone had, she
likely would have said that, with a full-time job and five children to raise, she
simply did not have time.
With regard to how she knew what services to provide, Deana stated
that “[t]he doctors would pass the orders on to the nurses, and then they would tell
me - - they trained me on what it was I needed to do, a certain way to bandage or a
certain way to clean, and they would tell me that.” The physicians would also tell
Deana, “He’s going to need this, and we do this at home. So home health will
come in and show you how to do this, and then you will do this at home.”
Mazen testified that he had a number of surgeries; however, he could
not recall many details about those surgeries. In addition to his surgeries, he has
undergone several rounds of physical therapy to increase the strength in his legs
and improve his balance. Although his condition has improved somewhat, he
continues to have difficulty walking and with his balance, noting he has fallen on
several occasions, once fracturing his wrist.
At some point in time following the injury, Speedway offered Mazen
the opportunity to work from home. However, he did not do so because he “was
concentrating on getting better” and was having problems with his memory.
In addition to his and Deana’s testimony, Mazen filed the report of
Mary T. Moraja, R.N. (Moraja), and Speedway filed Moraja’s deposition. In her
report and deposition, Moraja stated that she performed a “home assessment and
assistance evaluation” on February 27, 2007. During that evaluation, Deana
advised Moraja that Mazen received home health care from an outside provider
until 2002; however, since that time, Deana has provided all of Mazen’s home
health care services. Those services include:
dosing of medications three time per day, range of
motion and strengthening exercises two times per day,
assistance with showering and grooming daily, assistance
with mobility and standby guard assistance, checking
blood pressure twice daily, monitoring blood sugar levels
using finger sticks twice daily, monitoring of his feet for
diabetes related ulcers, care of any such ulcers,
transporting to and from pool therapy sessions two to
three times per week, transportation to and from
physicians appointments three to four times per month,
and consulting with Mazen’s physicians regarding his
care and medications.
Deana estimated that she spent an average of six hours per day performing these
tasks. Moraja stated that without the care provided by Deana, Mazen “would most
certainly require twenty four [sic] hour personal care assistance or reside [sic] in an
assisted living facility.”
After consulting with several outside vendors, Moraja determined
skilled nursing care would cost $100 per visit, private duty care would cost $16.50
per hour, adult day care would cost $60.50 per day, and residence at an assisted
living facility would cost $2,500 per month.
Mazen also filed several reports from Dr. Corbett. Notably, in his
March 2007 report, Dr. Corbett stated he agreed with Moraja’s recommendations.2
Those recommendations included “an adult day care program or full time
assistance in the home to care for and monitor Mr. Elias when his wife is at work”
or “an assisted living facility if Mrs. Elias should become unavailable for any
Speedway filed selected records from Caretenders, a home health
agency, for statistical purposes. These records indicate that, on several days in
2000, a person from Caretenders provided services to Mazen from approximately
7:00 a.m. to 3:00 p.m. We note that the records contain, for the most part, fairly
detailed notes regarding the services provided and the time expended in providing
Speedway also filed a report from Kathi L. Rose, RN, BSN, MA,
CCM (Rose). Rose stated “[t]he ultimate home health goal is for the patient to
reach a stage of self-management or if that is not possible, for the family to be
independent in caring for the patient.” According to Rose, aide care, which
consists of services such as bathing, dressing, and grooming but no medication
management or wound care, would cost $15.00 to $25.00 per hour, with a three to
We note that the Board, in its opinion, quoted Dr. Corbett as saying, “In reflection of the note
and evaluation performed by Mary T. Moraja, RN, I do not believe Mr. Elias should conform to
the recommendations made by the case manager at the close of her report.” (Emphasis added.)
However, Dr. Corbett actually states on pages 3 and 4 of his March 27, 2007, report, “In
reflection of the note and evaluation performed by Mary T. Moraja, RN, I do believe that Mr.
Elias should conform to the recommendations made by the case manager at the close of her
report.” (Emphasis added.)
four hour minimum. From that charge, the aide would receive $7 to $11 per hour.
Aides are generally required to keep a log detailing what services were provided,
what observations they made about the patient, and the time they spent at the
patient’s residence. Rose noted Deana had not provided any “written record of the
care she stated she provided or the clock hours defining the time period the care
was given.” According to Rose, the services provided by Deana were “of a
personal nature and consistent with the expectations of a family caregiver.”
Finally, Speedway presented the testimony of Deborah Sunday-Dalton
(Dalton), supervisor of benefits administration and workers’ compensation. Dalton
testified that Speedway took a number of measures to assist with Mazen’s
treatment, including providing for day care treatment and equipment and raising
Dalton further testified that, after home nursing care stopped in March
2002, Deana requested that an LPN be provided. However, Speedway determined
Mazen only needed custodial care at the most; therefore, it offered to provide a
certified home health aid. Deana declined that offer.
Dalton verified Mazen’s testimony that Speedway offered home
employment to him in May 2000. Had Mazen accepted Speedway’s offer, he
would have acted as a customer service representative, fielding calls from
customers and attempting to address their complaints. According to Dalton, Deana
declined this offer stating “the family didn’t want to do this.”
In rebuttal testimony, Deana stated, she requested an LPN in March
2002 because Mazen required twice daily injections of medication and had an IV
that had to be changed three times a day. Because she had been advised that only
she or an LPN could provide such services, Deana did not see much point in
having a certified home health aid.
As to the offer of employment, Deana testified, with his poor memory,
judgment deficits, depression, and anxiety attacks, Mazen had difficulty dealing
with members of his family. Therefore, he would not have been able to handle a
position in customer service.
After reviewing this evidence, the ALJ found that the services
rendered by Deana were compensable under KRS 342.020 and Bevins Coal Co. v.
Ramey, 947 S.W.2d 55 (Ky. 1997). The ALJ found Mazen did not timely seek
payment for services rendered from 2000 through August of 2003. However, she
excused that delay, noting Deana “worked full time, took care of five children in
addition to the care she provided for” Mazen and “there simply wasn’t the time
available to do paperwork.” The ALJ noted the documentation submitted in
support of the Forms 114 may have been less than Speedway requested; however,
she found the Forms 114 were “fully completed” as required by 803 KAR 25:096 §
11(1). Finally, the ALJ found Deana’s testimony was credible and, in conjunction
with the evidence from Moraja and Rose, supported Mazen’s request for payment
of $10.00 per hour for six hours per day for caregiver services. Based on these
findings, the ALJ awarded Mazen $420 per week as payment for caregiver services
rendered by Deana beginning December 1, 1999, and “continuing until a further
Order is entered changing or terminating the payment amount.”
Speedway appealed the ALJ’s decision and the Board affirmed in
part, vacated in part, and remanded. In doing so, the Board found the ALJ properly
awarded home caregiver benefits at the rate of $10 per hour for six days per week.
However, the Board found the ALJ’s award of those benefits beginning on
December 1, 1999, was not appropriate. Therefore, the Board remanded this
matter to the ALJ for a determination of when Deana began providing home
caregiver services. Finally, the Board vacated that portion of the ALJ’s award
extending home caregiver benefits indefinitely into the future. The Board noted
that Mazen’s care requirements had changed over time, and they might very well
continue to do so. Therefore, in order to receive ongoing caregiver benefits,
Mazen was required to file Forms 114 as appropriate. It is from this opinion by the
Board that Speedway appeals.
As noted above, Speedway raises five issues on appeal. We will
address those issues in the order listed.
STANDARD OF REVIEW
There are three levels of review in workers’ compensation appeals.
The ALJ has the sole discretion to determine the quality, character, and substance
of the evidence, may reject any testimony, and may believe or disbelieve various
parts of the evidence regardless of whether it comes from the same witness or the
same party’s total proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985), and Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky.
1977). If the party with the burden of proof failed to convince the ALJ, that party
must establish on appeal that the evidence was so overwhelming as to compel a
favorable finding. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). As
long as the ALJ’s opinion is supported by substantial evidence, we cannot disturb
it on appeal. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
Substantial evidence is evidence of substance and relevant consequence, having the
fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F.
Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). Therefore, the first
level of review is whether the ALJ abused her discretion.
The second level of review involves issues that raise mixed questions
of fact and law. At this mid-level, we have greater latitude in determining if the
underlying decision is supported by probative evidence. Purchase Transportation
Services v. Estate of Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001); Uninsured
Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991).
The final level of review involves issues that raise questions of law.
Those issues are subject to de novo review. Carroll v. Meredith, 59 S.W.3d 484,
489 (Ky. App. 2001); see also A & A Mechanical, Inc. v. Thermal Equipment
Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999); Aubrey v. Office of Attorney
General, 994 S.W.2d 516, 518-19 (Ky. App. 1998); and Cinelli v. Ward, 997
S.W.2d 474, 476 (Ky. App. 1998). This appeal contains issues requiring the
application of all three levels of review.
1. Sufficiency of the Evidence
Speedway argues that Mazen did not offer sufficient evidence to
support his claim for caregiver benefits. In Bevins Coal Co. v. Ramey, 947 S.W.2d
55 (Ky. 1997) the Supreme Court of Kentucky held that, under KRS 342.020(1), a
homemaker may be entitled to payment for providing services “for the cure and
relief from the effects of injury.” Id. at 56. In order to be compensable, the
services must “be medically necessary, performed competently, and provide cure
and relief from the effects of the injury.” Id. at 59. As claimant, Mazen had the
burden of proving all of the preceding elements of his claim for caregiver benefits.
See Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky. 1963); Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984); Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979).
In support of his claim, Mazen offered the testimony of Deana that
she was advised by Mazen’s physicians and therapists to perform the services she
performed. Furthermore, she testified she received instructions from the
physicians, therapists, and/or Mazen’s home health care nurses regarding how to
perform those services.
Additionally, Mazen offered the report and testimony of Mojara
detailing the services performed by Deana and indicating that, absent Deana’s care,
Mazen would require twenty-four hour personal care or residence in an assisted
living facility. Dr. Corbett concurred with Mojara’s recommendations, and Rose
stated that Deana was providing services “consistent with the expectations of a
The preceding is substantial evidence that the services provided by
Deana were medically necessary, performed competently, and provide cure and
relief from the effects of Mazen’s injury. There is no evidence that would compel
a different result. Therefore, we hold Mazen presented sufficient evidence to
support his claim for caregiver services.
2. Grounds for Delay in Filing the Initial Form 114
Speedway next argues any services provided before August 30, 2003,
are not compensable because the initial Form 114 was not timely filed. 803 KAR
25:096 § 11(1) provides that a person who is not a physician or medical provider
who, nonetheless, provides compensable medical services, must seek
reimbursement by submitting a Form 114 to the employer or carrier within sixty
days after the service is initiated and every sixty days thereafter. 803 KAR 25:096
§ 11(3) provides that “[f]ailure to timely submit the Form 114, without reasonable
grounds, may result in a finding that the expenses are not compensable.”
The parties do not dispute that Mazen did not timely present the initial
Form 114 to Speedway. However, the ALJ found Mazen offered a reasonable
explanation for his delay in presenting the Form 114. On appeal, Speedway argues
that Deana’s testimony might explain the lack of supporting documentation for the
Forms 114, but it does not explain the delay in submitting the initial Form 114. In
support of its position, Speedway cites to Deana’s hearing testimony that she did
not have “spare time to sit down and take notes of everything I do for him.”
However, Speedway is reading Deana’s testimony too narrowly. As
noted above, Deana testified that she did not “have time to document.” From that
testimony, the ALJ could infer Deana lacked the time to prepare the initial Form
114 and to prepare any supporting documentation that might be required.
Considering Deana’s full-time job and her need to care for the couple’s five minor
children and Mazen, the ALJ’s inference is supported by evidence of substance and
cannot be disturbed on appeal.
Furthermore, although not cited by either the ALJ or the Board, the
ALJ’s opinion is supported by Deana’s testimony that no one from Speedway ever
directly informed her that she was required to submit any specific documentation
seeking reimbursement for the services she provided. 803 KAR 25:240 § 3(1)
provides that “[a] carrier shall provide adequate notice with regard to policy
provisions and information with regard to coverage and benefits.”
Caregiver benefits have been available in Kentucky since the Supreme
Court rendered its opinion in Bevins. Dalton testified she was aware Deana did not
want a certified home health aide, but an LPN, and Mazen needed, at a minimum,
additional services a certified home health aide could provide. Therefore,
Speedway should have advised Mazen and/or Deana of the availability of caregiver
benefits and how to apply for such benefits.
Based on the above, we hold the ALJ’s finding that Mazen provided a
reasonable explanation for the delay in submitting the initial Form 114 is supported
by substantial evidence and we affirm that finding.
3. Completion of the Forms 114
Speedway argues that the Forms 114 submitted by Mazen were not
“fully completed” as required by 803 KAR 25:096 § 11(1). We agree with
Speedway that the purpose of a Form 114 is to provide the employer/carrier with
sufficient information so it can determine if the listed services are compensable.
Furthermore, we agree with Speedway that the Forms 114 herein provided only
limited information regarding the specific services performed, the dates of service,
or the time required to perform the services. However, the Forms 114 were not the
only documents available to Speedway.
In addition to the Forms 114, Speedway had available to it all of
Mazen’s medical records. Included in those records were copies of the notes
provided by the home health care nurses. Those notes put Speedway on notice
regarding the extent of the services Mazen required and the time necessary to
provide those services. Speedway cannot simply close its eyes to the information
it has and deny payment because that information did not come to it by way of a
Form 114. Furthermore, based on Dalton’s testimony that she closely monitored
Mazen’s treatment and was involved in determining the level of home care needed,
Speedway cannot deny it understood the significance of the medical records in its
possession. Finally, throughout the course of this litigation, Deana testified as to
what services she provided and how long it took her to provide those services.
That testimony, coupled with the reports of Mojara, Rose, and Dr. Corbett, provide
sufficient information to support the ALJ’s finding that the Forms 114 were “fully
In a related matter, we note that Speedway states in its Brief that:
the Board “cherry-picks” information from other
testimony and medical records, and concludes that
Speedway should have known what tasks Mrs. Elias was
performing in caring for Plaintiff. The Board even went
so far as to rely upon an alleged handwritten list of
services which Mrs. Elias purportedly provided for her
husband, without the list ever being offered as evidence
in this case!
Speedway cites this alleged impropriety by the Board as “reason alone to reverse
the Board’s decision in this case.” We note that the document to which Speedway
refers is page 176 of the record. It is attached to a letter from Mazen’s counsel to
Speedway’s counsel and is part of what appears to be a group of documents
attached to Speedway’s July 12, 2007, Notice of Contest of Additional Requests
for Payment. Therefore, the document in question is part of the record and the
Board’s citation to it was not improper or grounds to reverse.
4. Consideration of Issues not Previously Raised
In addition to arguing the Board impermissibly relied on evidence that
Speedway itself filed, Speedway argues the Board improperly questioned whether
Speedway properly denied payment. We agree with Speedway that it was not
required by the regulations to formally contest the requested payments by way of a
Form 112. However, the Board’s discussion of this issue was not dispositive of its
ultimate findings and is not dispositive of our holding on appeal. Therefore, we
hold that the Board’s discussion of this issue is not grounds for reversal.
5. Lack of Jurisdiction
Finally, Speedway argues that, because Deana was never joined as a
party, the ALJ was without authority to award her “compensation.” Speedway’s
argument is flawed for at least three reasons. First, the ALJ did not make an award
to Deana. In her opinion and award, the ALJ stated that:
[t]he Plaintiff, Mazen Elias, shall recover of the
Defendant-employer, Speedway/SuperAmerica, and/or
its insurance carrier, such medical, surgical and hospital
expenses as may be reasonably required for the treatment
of Plaintiff’s occupational injury including payment for
caregiver services by Deana Elias in the sum of $420.00
per week . . . .
Second, while medical care providers whose services are being
contested are often joined as parties, they are only arguably required to be joined if
a defendant is contesting the reasonableness and necessity of the treatment. See
Ausmus v. Pierce, 894 S.W.2d 631 (Ky. 1995). In this case, Speedway was not
contesting the reasonableness/necessity of the care provided by Deana; it was
contesting whether Mazen’s claim for benefits was timely filed and/or whether that
claim was supported by adequate evidence. Therefore, Deana was not a necessary
party to this litigation under Ausmus.
Finally, and perhaps most importantly, Speedway did not raise this
jurisdictional issue before the ALJ. 803 KAR 25:010 § 13(13) provides that, at the
benefit review conference, the ALJ shall prepare a summary of all contested and
uncontested issues. Only the issues listed as contested “shall be the subject of
further proceedings.” 803 KAR 25:010 § 13(14). Because Speedway did not raise
the jurisdictional issue before the ALJ, it is foreclosed from doing so now.
The ALJ’s findings that the delay in filing the initial Form 114 was
reasonable, the Forms 114 were fully completed, and Mazen is entitled to caregiver
benefits are supported by evidence of substance and cannot be disturbed on appeal.
We agree with the Board that the evidence did not support the ALJ’s award of
caregiver benefits dating to the date of Mazen’s injury. Finally, we note that
Mazen did not file a cross-appeal; therefore, we cannot disturb the Board's findings
that the ALJ lacked the authority to award caregiver benefits in a fixed amount into
the future and that Mazen is required to continue filing Forms 114.
Therefore, we affirm the Board. This matter is remanded to the ALJ for additional
proceedings consistent with the Board’s opinion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David D. Black
Philip J. Truax
Frank M. Jenkins, III