GARNO (SUSAN) WORKERS VS. COMPENSATION SOLECTRON USA , ET AL.
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RENDERED: FEBRUARY 5, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001425-WC
SUSAN GARNO
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-66400
SOLECTRON USA;
HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MOORE, AND STUMBO, JUDGES.
MOORE, JUDGE: Susan Garno sustained work-related injuries on October 14,
2002, and January 14 or 15, 2004, while working for Solectron-USA. Garno
appeals from part of a January 9, 2009 opinion, order and award of an
Administrative Law Judge (ALJ), as affirmed by the Board of Workers’ Claims,
resolving a medical fee and expense dispute based upon these injuries in favor of
Solectron, as insured by Arrowpoint Capital Corp., formerly Royal & SunAlliance,
and St. Paul Travelers. Upon review, we affirm.
FACTS AND PROCEDURAL HISTORY
In an interlocutory opinion, order, and award, dated March 24, 2006,
and amended on May 4, 2006, Travelers and Royal were ordered to pay Garno’s
medical expenses relating to separate injuries she sustained on October 14, 2002,
and January 15, 2004, as well as income benefits.
In January of 2007, Garno submitted several requests for
reimbursement of expenses1 purportedly related to the treatment of these injuries,
outlined in a variety of bills and other documents, to Travelers and Royal; these
expenses arose between 2004 and 2005 and included various surgical treatments,
co-pays, and mileage reports totaling approximately $20,000. Along with this
filing, Garno included several Forms 114, which included her signature and her
handwritten date of “May 9, 2005.” Travelers and Royal filed medical fee disputes
regarding these expenses, attaching these bills and documents as exhibits and
arguing that these requests for reimbursement were not timely submitted.
On April 30, 2008, Garno filed another request for reimbursement of
expenses with a document styled “Compliance With Administrative Law Judge’s
1
While Garno mailed these requests to Travelers and Royal around this date, she did not actually
file any of these expenses with the Department of Workers’ Claims until June 11, 2008, in a
document styled “Compliance With Administrative Law Judge’s Order.”
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Order.” This request contained copies of some of the prescriptions she had
received in 2006 through 2008 showing their amounts, their respective co-pays,
and a list of other expenses including mileage. Also, a separate printout from
Florida Orthopaedic Institute was attached covering the period from May of 2006
through November of 2007 reflecting additional amounts claimed due. No
information was attached to this printout explaining the necessity for any of these
charges. Moreover, a Form 114 did not accompany this filing in order to certify
that any of these services or expenses were incurred for the cure or relief of
Garno’s work-related injury. Travelers and Royal filed medical fee disputes
regarding these expenses as well, arguing that these requests for reimbursement
were not timely submitted and that they could not have been properly submitted
because Garno had not followed the applicable procedures for doing so.
On November 10, 2008, the ALJ conducted a formal hearing on these
medical fee disputes and on other matters not relevant to this appeal. There, Garno
testified that she had given the expenses included in her January of 2007 request to
opposing counsel at the first benefit review conference conducted on May 9, 2005.
In support, she directed the ALJ’s attention to the various Forms 114 she submitted
with that request, all of which she had signed and dated “May 9, 2005.”
On December 11, 2008, Garno submitted her brief in support of her
case. There, the only argument she offered with regard to the medical expenses at
issue was:
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The medical fee disputes except as to the issue of surgery
are moot.[2] It is the Plaintiff’s position that the Claimant
does not have any responsibility as it relates to the
presentation of medical bills at present because the
Defendant/employer as insured by both carriers denied
this claim and continue to deny this claim and refused to
stipulate work-related injuries despite the prior
interlocutory decision. Plaintiff is not required to send
them medical bills in this situation until there is a final
decision rendered. In addition, Plaintiff attempted, per
her testimony, to seek addressal [sic] of the medical bills
and prescription expenses. For all of these reasons, those
medical fee disputes should be resolved in favor of the
Claimant.
In the ALJ’s January 9, 2009 opinion, order, and award, he found in
favor of Royal and Travelers on the issues of the medical fee disputes.
Specifically, the ALJ held:
With respect to other medical expenses, including
requests for mileage expenses, the defendants point out
that, as of March 24, 2006, they were ordered to pay
plaintiff’s compensable medical expenses but plaintiff
did not submit her requests for reimbursement for
expenses until January 11, 2007. Given that plaintiff’s
expenses for her work injuries were ruled compensable
as of March 24, 2006, the Administrative Law Judge
finds no excuse for plaintiff’s failure to submit requests
for reimbursement before January 11, 2007. As such,
any expenses incurred more than 60 days prior to January
11, 2007 are not compensable per 803 KAR [Kentucky
Administrative Regulations] 25:096 Section 11(2).
Similarly, any expenses submitted since January 11, 2007
which were actually incurred more than 60 days prior to
having been submitted are also not compensable. Any
medical expenses timely submitted for payment are
payable, by each defendant equally, pursuant to the
Kentucky workers compensation medical fee schedule,
unless and until the bills are supported by an adequate
2
The surgery referenced in this quote is not an issue in this appeal.
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statement of the services provided and unless the bills in
question are not work-related on their face.
On February 12, 2009, Garno petitioned the ALJ to reconsider the
January 9, 2009 opinion. There, she argued:
The ALJ erred as a matter of law in sustaining the
medical fee disputes to the extent that the Administrative
Law Judge found no excuse for Plaintiff’s failure to
submit requests for reimbursement before January 11,
2007. First of all, the Plaintiff testified that she
submitted requests prior to that. Secondly, the original
order was interlocutory in nature. Had the Claimant not
been successful on the issues of causation before the
current ALJ, the employer/insurance carriers would not
have been liable for her medical expenses and an
argument could be made and they would be entitled to
reimbursal [sic]. An interlocutory award cuts both ways.
Plaintiff still had the burden of proof on causation in
front of the current ALJ. While that was decided in favor
of the Claimant, an award of either TTD or medical
expenses may not have been enforceable in any Court
prior to a final decision. It was a temporary order and not
a permanent award. For all of these reasons, it is felt that
the ALJ erred in this particular fact situation in not
finding the Plaintiff’s failure to submit requests for
reimbursement timely/excusable.
The ALJ denied Garno’s petition for reconsideration.
Garno then appealed to the Board of Workers’ Claims. She argued
that she had timely submitted her requests for reimbursement; or, assuming she had
not, she was still entitled to reimbursement because she had “reasonable grounds,”
per 803 KAR 25:096 Sections 6 and 11(3),3 for failing to timely submit her
3
803 KAR 25:096 Section 6 provides that “[i]f the medical services provider fails to submit a
statement for services as required by KRS 342.020(1) without reasonable grounds, the medical
bills shall not be compensable.” Similarly, 803 KAR 25:096 Section 11(3) provides that “failure
to timely submit the Form 114, without reasonable grounds, may result in a finding that the
expenses are not compensable.”
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statements of services and Form 114 reimbursement requests. These grounds, as
Garno contended, consist of the following reasons: 1) an interlocutory award is
unenforceable; 2) the possibility of an adverse final decision justified not timely
reporting her medical expenses; and 3) the case of Lupian v. Cintas Uniform Plant,
2008 WL 275149 (Ky. App. 2008)(2007-CA-001011-WC)(unpublished), stands
for the proposition that a claimant has a reasonable period of time after the
rendering of a final decision to present medical expenses and because a final
decision was not rendered until January 9, 2009, her requests for reimbursement
were made within a reasonable amount of time.
On July 2, 2009, the Board affirmed the decision of the ALJ, holding
that the requests were not timely submitted and that Garno had no reasonable
excuse for failing to do so. The Board also interpreted the ALJ’s order to mean
that Garno’s failure to include a Form 114 with her April 30, 2008 “Compliance
With Administrative Judge’s Order” precluded her from receiving reimbursement
for all of those expenses as well, as a prerequisite for considering any request for
reimbursement actually submitted was the accompaniment of an executed Form
114 with those expenses.4
Garno now appeals to this Court, and her arguments before this Court
are identical to the arguments she presented to the Board, as stated above.
4
Garno does not contest this reasoning, and we agree with it. Regardless of whether some
expenses in this April 30, 2008 compliance were filed within sixty days of incurring them, the
focus of 803 KAR 25:096 Section 11(3) is on timely filing the Form 114, not the expenses
themselves. As the April 30, 2008 filing failed to include a Form 114, these expenses cannot be
considered.
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STANDARD OF REVIEW
The duty of this Court is to correct the Board only where it has
overlooked or misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross injustice. Western
Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992); Whittaker v.
Rowland, 998 S.W.2d 479, 482 (Ky. 1999). It has long been settled in this
Commonwealth that “judicial review of administrative action is concerned with the
question of arbitrariness. . . . Unless action taken by an administrative agency is
supported by substantial evidence it is arbitrary.” American Beauty Homes Corp.
v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d
450, 456 (Ky. 1964). Substantial evidence is defined as “that which, when taken
alone or in light of all the evidence, has sufficient probative value to induce
conviction in the mind of a reasonable person.” Bowling v. Natural Resources and
Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994); see
also Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298 (Ky. 1972). In
weighing the evidence, “the trier of facts is afforded great latitude in its evaluation
of the evidence heard and the credibility of witnesses appearing before it.”
Bowling, 891 S.W.2d at 409-10; see also McManus v. Kentucky Retirement
Systems, 124 S.W.3d 454 (Ky. App. 2003). A reviewing court may not substitute
its own judgment on a factual issue “unless the agency’s decision is arbitrary and
capricious.” McManus, 124 S.W.3d at 458.
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As in this case, “[w]here the fact-finder’s decision is to deny relief to
the party with the burden of proof or persuasion, the issue on appeal is whether the
evidence in that party’s favor is so compelling that no reasonable person could
have failed to be persuaded by it.” Id.; see also Bourbon County Board of
Adjustment v. Currans, 873 S.W.2d 836 (Ky. App. 1994). The failure to grant
relief would be arbitrary “if the record compels a contrary decision in light of
substantial evidence therein.” Currans, 872 S.W.2d at 838. Once a reviewing
court has determined that the agency’s decision is supported by substantial
evidence, the court must determine whether the correct rule of law was applied to
those facts by the agency in making its determination. If so, the final order of the
agency must be upheld. Bowling, 891 S.W.2d at 410.
ANALYSIS
Garno first contends that she did in fact submit her requests for
reimbursement of her 2004 and 2005 expenses on May 9, 2005, that her requests
relating to those amounts were timely as a consequence, and that it was error for
the ALJ to hold otherwise. In support, she again points to the fact that she testified
to this effect at the November 10, 2008 hearing, and also to the fact that she wrote
“May 9, 2005” on each of the Forms 114 submitted with her January of 2007
reimbursement request. However, even assuming it was proper for her to submit
these expenses within thirty days of May 4, 2005, rather than March 24, 2005, we
nevertheless disagree.
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Regarding the issue of reimbursement, if an employee is provided
with medical services, Kentucky Revised Statutes (KRS) 342.020(1) mandates that
the provider shall submit the statement for those services to the employer or its
medical payment obligor within forty-five days of the day treatment is initiated and
every forty-five days thereafter. In addition, if an employee incurs expenses in
order to access compensable medical treatment (i.e., co-payments for prescription
medication and similar items, as well as reasonable travel expenses), these
expenses shall be submitted to the employer or its medical payment obligor, within
sixty days of incurring the expense, and on a Form 114. 803 KAR 25:096 Section
11(2).
Here, the evidence before the ALJ demonstrated that both Royal and
Travelers denied ever receiving any request for reimbursement prior to January of
2007, and January of 2007 was approximately nine months after the date those
expenses were incurred and in excess of either the forty-five or sixty-day
limitation. Moreover, the ALJ determined that Garno’s contrary testimony was not
credible, as nothing in the record established that the Forms 114 and documents
attached thereto were ever submitted to any carrier prior to January of 2007. As
stated above, the decision of an administrative agency is arbitrary if it is not based
upon substantial evidence. See American Beauty Homes Corp., supra. As we find
that the ALJ’s decision in this respect was supported by substantial evidence and
because Garno’s self-serving testimony and the several Forms 114 that she herself
dated do not compel a different result, we cannot find error on this basis.
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Similarly without merit is Garno’s argument that she had “reasonable
grounds,” per 803 KAR 25:096 Sections 6 and 11(3), for failing to timely submit
her Form 114 reimbursement requests. As noted above, the assertions underlying
this argument are that 1) an interlocutory award is unenforceable; 2) the possibility
of an adverse final decision justified not timely reporting her medical expenses;
and 3) the case of Lupian v. Cintas Uniform Plant, supra, stands for the
proposition that a claimant has a reasonable period of time after the rendering of a
final decision to present medical expenses, and because a final decision was not
rendered until January 9, 2009, they were timely submitted.
With regard to her first assertion, an ALJ is authorized, pursuant to
KRS 342.275(2), to order interlocutory medical benefits. While Garno contends
that such an interlocutory order would be unenforceable, she presents no authority
in support of her conclusion. This Court will not assume that the authority
conferred to an ALJ by the plain language of KRS 342.275(2) is mere surplusage;
the ALJ certainly could have determined what medical expenses were to be paid as
required by his interlocutory order. Furthermore, Garno’s contention is
disingenuous at best, as she readily accepted income benefits pursuant to that same
award. In sum, this is not a “reasonable ground” for her delay.
With regard to her second assertion, that an adverse final decision
could have subjected Garno to a suit for reimbursement, this also is not an excuse
for her delay in timely submitting her expenses for reimbursement. 803 KAR
25:010 Section 12(b) provides that medical benefits provided under an
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interlocutory order are “pursuant to KRS 342.020.” In turn, KRS 342.020(1)
requires a party seeking reimbursement for medical services to submit the
statement for services within forty-five days of the day treatment is rendered and
every forty-five days thereafter; and 803 KAR 25:096 § 11(2), enacted pursuant to
KRS 342.020, requires a party seeking reimbursement of medical expenses to
submit them within sixty days of the date they were incurred. In short, the time
constraints for submitting medical expenses to an employer under a final order are
identical to those relating to interlocutory orders, and apprehension of a suit for
reimbursement does not constitute an exception to this rule.
Finally, the case of Lupian v. Cintas Uniform Plant, supra,5 cited by
Garno, provides no support for the proposition that medical expenses need not be
submitted until “a reasonable time” after a final adjudication in favor of a claimant;
rather, it serves only to contradict her argument. In Lupian, the claimant submitted
unpaid medical bills to his employer’s attorney several months after the Board
affirmed the ALJ’s initial award. In concluding that the claimant, Lupian, failed to
comply with the applicable statute and regulation allowing for reimbursement of
medical expenses, and failed to offer reasonable grounds to excuse his conduct, we
held
KRS 342.020(1) clearly states: “The provider of medical
services shall submit the statement for services within
forty-five (45) days of the day treatment is initiated and
every forty-five (45) days thereafter, if appropriate, as
5
We do not believe Lupian meets the criteria for citation under Kentucky Rules of Civil
Procedure (CR) 76.28(4)(c). We do not cite it as authority, but will briefly distinguish it from
Garno’s case.
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long as medical services are rendered.” Here, the
evidence showed that Lupian, and not his medical
provider, presented several unpaid bills to Cintas long
after the treatment had actually been rendered. Lupian
argues the forty-five day window was tolled during the
pendency of Cintas’s appeal to the Board and that the
bills were timely presented after the Board’s decision
became final. However, Lupian offers no authority to
support his position, and we are not persuaded by his
reasoning. Likewise, 803 KAR 25:096 § 6 plainly states,
“[i]f the medical services provider fails to submit a
statement for services as required by KRS 342.020(1)
without reasonable grounds, the medical bills shall not be
compensable.” In this case, as the bills were not
submitted to Cintas by Lupian’s medical provider within
forty-five days of treatment, as required by the statute,
we agree with the Board that the bills were noncompensable.
Id. at *1.
In sum, Lupian concerned a final award that was being appealed and
was subject to reversal. However, we found in that case that reimbursement of
medical benefits ordered pursuant to that decision remained subject to the
submission requirements of KRS 342.020(1), even on appeal, and that failure to
timely submit them pursuant to those guidelines would excuse an employer from
reimbursing them. Likewise, this case presents an interlocutory award that would
also be subject to reversal, and 803 KAR 25:010 Section 12(b) mandates that KRS
342.020 applies to interlocutory awards with equal force.
Similar to Lupian, Garno did not timely present her expenses to her
employer for reimbursement. Similar to Lupian, Garno presents no authority
demonstrating that the window for presenting expenses for reimbursement could
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be tolled for anything other than “reasonable grounds.” Similar to Lupian, Garno
has likewise presented no reasonable grounds. And similar to Lupian, these
expenses are consequently non-compensable.
Accordingly, as we find no error, the decisions of the ALJ and Board
are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE,
SOLECTRON USA (AS INSURED
BY ARROWPOINT CAPITAL
CORP., FORMERLY ROYAL &
SUNALLIANCE):
Kimberly Van Der Heiden
Lexington, Kentucky
BRIEF FOR APPELLEE,
SOLECTRON USA (AS INSURED
BY ST. PAUL TRAVELERS):
Lyn Douglas Powers
Louisville, Kentucky
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