EARL HARRIS V. STEVENS DISPOSAL, ET AL
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PR OCED URE PR OMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY CO UR T OF THIS STA TE.
RENDERED : August 25, 2005
NOT TO BE PUBLISHED
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2004-SC-0992-WC
J
EARL HARRIS
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2004-CA-0154-WC
WORKERS' COMPENSATION BOARD NO. 96-68717
STEVENS DISPOSAL ; HON. DONNA H . TERRY,
ADMINISTRATIVE LAW JUDGE; WORKERS'
COMPENSATION BOARD ; AND WORKERS'
COMPENSATION FUNDS
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Relying on KRS 342 .125(4), an Administrative Law Judge (ALJ) determined that
although the claimant underwent post-settlement knee replacement surgery on
September 13, 2002, he was not entitled to temporary total disability (TTD) benefits until
the date of his motion to reopen, which was November 8, 2002. The Workers'
Compensation Board and the Court of Appeals affirmed . Appealing, the claimant
asserts that post-award TTD benefits do not change or increase the amount of
compensation previously awarded, that his entitlement arose when he met the criteria of
KRS 342 .0011(11)(a), and that requiring a worker to file a prospective motion to reopen
for TTD benefits circumvents KRS 342 .040 and KRS 304.12-230, the Unfair Claims
Settlement Practices Act. We affirm .
~sv
The claimant injured his right knee while working in August, 1996. On December
1, 1998, he filed an application for benefits in which he alleged both the knee injury and
a subsequent back injury that occurred when the injured knee gave out. The application
stated that he had undergone knee surgery and that surgery for a herniated disk was
proposed. A settlement agreement approved on October 6, 2000, indicated that the
claimant had undergone multiple arthroscopic knee surgeries as well as lower back
surgery . It also indicated that the employer had paid $40,005.69 in medical benefits
and $24,548 .33 (128 1/7 weeks) in TTD benefits to date . The agreement provided for
$5,000.00 in additional TTD benefits as well as for lump sum payments by the employer
and Special Fund that represented a 45% permanent partial disability. It did not
compromise the claimant's right to future medical expenses and to reopen.
On September 13, 2002, the claimant underwent total right knee replacement
surgery. He submitted the medical bills to his health insurance carrier, but on
November 8, 2002, he moved to reopen his workers' compensation claim, alleging a
worsening of condition . The employer objected to the motion, maintaining that the
worsening of condition was not attributable to the work-related injury. The issues
presented to the AU included, among other things, the claimant's entitlement to TTD
benefits from September 13, 2002, until he reached maximum medical improvement
(MMI) following the knee surgery; the date of MMI ; the compensability of the surgery ;
and his entitlement to income benefits for a permanent increase in disability due to the
knee condition .
After considering the lay and medical evidence at reopening, the AU determined
that the claimant's knee condition was due to the work-related injury, that his actual
occupational disability at settlement had been 75%, and that his present occupational
disability was no greater. Relying on Dr. Dobner's testimony, the ALJ determined that
the claimant did not reach MMI until one year after the knee replacement surgery . The
claimant received an award of medical benefits for the knee condition and TTD benefits
"commencing on November 8, 2002, the date of the motion to reopen, and continuing
until one year post-surgery, or September 13, 2003 ." In a petition for reconsideration,
he requested that TTD benefits be instituted on the date of surgery . It was denied .
The claimant asserts that the ALJ misinterpreted KRS 342.125(4) by failing to
consider KRS 342 .040 and erred by commencing his award from the date of his motion
to reopen rather than the date that he came within the definition of TTD . He notes that
the settlement did not compromise his right to future TTD or medical benefits and that
the ALJ found him to be temporarily totally disabled for a year following his surgery . He
also notes that KRS 342 .040(1) provides for income benefits from the onset of a
disability lasting more than two weeks. It requires the employer to institute benefits no
later than 15 days after its knowledge of the disability or to inform the Department of
Workers' Claims of its refusal to do so. Furthermore, KRS 342.040(2) penalizes an
employer who denies or delays paying TTD "without reasonable foundation ."
Nonetheless, the AU refused to award benefits that conformed to KRS 342.040 simply
because the period of TTD arose after the initial award .
The claimant maintains that KRS 342 .125(4) is inapplicable to post-award TTD
and medical benefits . He argues that post-award TTD does not change the amount of
compensation ordered because future TTD benefits "were never contemplated and
were not part of the compensation of the prior settlement." He also argues that because
KRS 342.730(1)(b) tolls the period of permanent partial disability for any intervening
period of TTD, a post-award period of TTD would not change the amount of
compensation previously awarded because it would not change the amount of
permanent partial disability benefits . Asserting that the legislature intended for TTD to
be treated differently from permanent income benefits at reopening, he notes that KRS
342 .125(3) limits the time within which a worker may reopen a partial disability award up
to four years from the date of the original award but that it expressly permits a
reopening to obtain TTD benefits at any time during the period of the award . Yet, under
the ALJ, Board, and Court of Appeals decisions, an injured worker would lose valuable
benefits while waiting for a medical report to establish a worsening of condition .
The employer argues that both KRS 342.040(1) and KRS 342.125(4) apply to
TTD and permanent partial disability benefits. KRS 342 .125(4) requires that a change
in the amount of compensation for permanent partial disability or TTD that is set forth in
an award to be prospective, from the date of the motion to reopen. The employer
argues that if the claimant had filed a properly supported motion to reopen seeking
advance approval for the surgery and requesting TTD during his recovery, TTD would
have been payable from its onset .
As amended effective December 12, 1996, KRS 342 .125(4) states, in pertinent
part, as follows:
Reopening shall not affect the previous order or award as to any
sums already paid thereunder, and any change in the amount of
compensation shall be ordered only from the date of filing the
motion to reopen.
The amendment codified longstanding judicial decisions that any changes in the amount
of benefits must be prospective, from the date of the motion to reopen . Lincoln Coal
Co. v. Watts , 275 Ky. 130,120 S .W .2d 1026 (Ky. 1938) ; Rex Coal Co. V. Campbell , 213
Ky. 636, 281 S .W. 1039 (Ky. 1926) . KRS 342.0011(14) defines the term
"compensation" as being "all payments made under the provisions of this chapter
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representing the sum of income benefits and medical and related benefits." Like
permanent partial and permanent total disability benefits, TTD benefits replace lost
income and, therefore, are income benefits. In other words, TTD benefits are a form of
compensation .
The claimant's award was the product of a settlement agreement . Even settled
awards of workers' compensation benefits are subject to the principles of the finality of
judgments . See Beale v. Faultless Hardware, 837 S.W.2d 893 (Ky. 1992) . They
establish limits on both a worker's entitlement and a defendant's liability . The
agreement in the present case did not include a buyout of future medical benefits or the
right to reopen . Nor did it contain a provision requiring the employer to pay for postaward knee surgery or related TTD benefits .
KRS 342.125 permits an otherwise final award to be reopened and additional
compensation to be awarded if the worker experiences a subsequent change of
disability, but it imposes a number of conditions . KRS 342.125(7) provides that no
statement contained in a settlement agreement regarding the employer's liability, the
nature and extent of disability, "or any other matter' is binding at reopening . It also
provides that the parties to a settled award may raise any issue that could have been
raised upon the initial application .' KRS 342 .125(3) permits a reopening to obtain postaward TTD or to determine the compensability of medical expenses at any time during
the period of the award, but KRS 342.125(4) is unambiguous in requiring a change in
the amount of compensation set forth in an award or order to be prospective, from the
date of the motion to reopen. An order of TTD benefits at reopening is a change in the
' In this case, the settlement provided that the claimant's permanent disability was 45%.
The ALJ determined, however, that his actual permanent disability had been 75% when
he settled and that it remained 75% at reopening .
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amount of compensation previously awarded ; therefore, KRS 342.125(4) requires it to
be prospective .
KRS 342 .040(1) and (2) are general . They concern an employer's obligation to
pay income benefits or to notify the Department of its refusal to do so and impose a
penalty for refusing or delaying the payment of TTD without a reasonable foundation .
KRS 342.125(4) is a specific statute regarding the conditions for modifying an otherwise
final award of income benefits . Where two statutes address the same or similar subject
matter, one in a broad way and the other specifically, the specific statute prevails. Boyd
v. C & H Transportation Company, 902 S .W.2d 823 (Ky. 1995) ; Land v. Newsome , 614
S.W.2d 948 (Ky. 1981) .
At issue in this appeal is the date for awarding TTD benefits at reopening;
therefore, we are not persuaded by arguments that are based on the definition of TTD
or on KRS 342.040. Nor are we persuaded that KRS 342 .125(4) operates to
circumvent KRS 342 .267 and the Unfair Claims Settlement Practices Act, which
penalize an employer for failing to make a good faith effort to settle a claim if the
employer's liability is reasonably clear but do not oblige an employer to pay any
particular benefits . Mindful that this case involves a post-award period of TTD following
an elective surgery, we fail to see the alleged hardship in filing a prospective motion to
reopen in order to ensure that the procedure would be compensable and that income
benefits would be permitted from the onset of TTD.
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Charles W. Gorham
250 W . Main Street, Ste. 2002
Lexington, KY 40507
COUNSEL FOR APPELLEE, STEVENS DISPOSAL :
Charles E. Lowther
Boehl, Stopher & Graves, LLP
444 West Second Street
Lexington, KY 40507
COUNSEL FOR APPELLEE, WORKERS' COMPENSATION FUNDS:
David W . Barr
Workers' Compensation Funds
1047 U .S. Hwy. 127 South, Suite 4
Frankfort, KY 40601
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