T.J. MAXX V. CHRISTINE L. BLAGG, ET AL.
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RENDERED: DECEMBER 18, 2008
TO BE PUBLISHED
2007-SC-000939-WC
APPELLANT
T.J. MAXX
V.
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2006-CA-002640-WC
WORKERS' COMPENSATION BOARD NO . 02-69078
CHRISTINE L. BLAGG;
HONORABLE JOHN B . COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKER'S COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING AND REMANDING
The Workers' Compensation Board vacated the opinion and order that
dismissed this claim on the ground that the Administrative Law Judge (ALJ)
relied on an invalid university evaluation . The Court of Appeals affirmed.
Appealing, the employer argues: 1 .) that the ALJ erred by ordering an
evaluation after the claim was submitted for a decision; and 2 .) that the Board
usurped the ALJ's function by finding Dr. Goldman not to be a valid university
evaluator . We reverse and remand for further proceedings. KRS 342 .315
permits a university evaluation whenever a medical question is at issue but
evinces no intent to depart from the regulations that govern the taking of proof.
The ALJ erred by ordering a university evaluation after taking the claim under
submission rather than deciding it based on the evidence of record at that
time.
The claimant was born in 1966 and began working for the defendantemployer in 1993 . Her job required her to unload incoming stock and to help
re-stock the store. She alleged that she sustained a work-related back injury
on October 9, 2002, while unloading boxes from a conveyor belt and that the
injury produced a psychiatric condition. Among other things, the contested
issues included causation, whether she sustained an injury as defined by KRS
342 .0011(1), and the extent and duration of disability . The parties submitted
extensive lay and medical evidence, submitted witness lists, and participated in
a benefit review conference .
After a hearing and briefing, the ALJ took the claim under submission .
Sometime thereafter, the ALJ entered an order holding the matter in abeyance
and directing the claimant to undergo a university evaluation. The order
explained that the evidence was "in great conflict" concerning whether the
claimant suffered an injury as defined by KRS 342.0011(1) and whether it
produced a severe disability or no disability; thus, "an error in judgment on
this claim would be a big one." The employer petitioned for reconsideration,
objecting and arguing that the need for another medical opinion after the claim
was taken under submission showed that the claimant failed to meet her
burden of proof. The claimant responded that the evaluation would assist the
ALJ and also requested a university evaluation concerning her psychiatric
complaints. Objecting to the request, the employer pointed out that she could
have done so during normal proof time but did not. The AI.J denied the
employer's petition and deferred a decision on the claimant's motion pending
the evaluation of the physical complaints.
The University of Louisville selected Dr. Goldman of the Medical
Assessment Clinic to perform the evaluation . A letter from the Department of
Workers' Claims informed the claimant of the time and place of the evaluation
and indicated that "maps of the examination site within the university facility"
were enclosed . The claimant underwent the evaluation, after which Dr.
Goldman submitted a Form 107 report that was unfavorable to the claim. He
concluded that she did not sustain a work-related injury on October 9, 2002,
noting that she performed the same work that she had been performing for 19
years and that nothing unusual happened on that day. He also noted that her
complaints "far exceed the objective verification on this examination" and
assigned a 0% permanent impairment rating.
The claimant moved to strike Dr. Goldman's report, asserting that it was
confusing, self-contradictory, and difficult to understand . Although the Form
107 listed the purpose of the examination as being a university evaluation, she
seized on a statement in the accompanying narrative, which indicated that the
report would be "sent to the referring client who is unknown to this examiner ."
On that basis, she asserted that Dr. Goldman seemed to be unaware that the
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evaluation was requested under KRS 342 .315. She also moved to hold the
claim in abeyance and/or for an extension of proof time, asserting that the
evaluation did not occur at a medical school and that her attorney needed time
to investigate . The employer objected to the motions .
Noting that the claimant's objections to Dr. Goldman's report affected its
weight rather than its admissibility, the AW denied the motion to strike it. The
ALJ also denied the motion for a university psychiatric evaluation and ordered
the claim to be re-submitted. Relying on Dr. Goldman's report, the ALJ
dismissed the claim for permanent income and medical benefits. After
expressing agreement with Dr. Goldman's opinion that no good history
indicated an injury actually occurred, the ALJ stated, "In this instance, the
[ALJ's] initial feelings were confirmed by the university evaluator's finding that
the plaintiff had not sustained a permanent injury . .
Appealing to the Board, the claimant argued that the AW erred by
concluding that her symptoms resulted from longstanding, pre-existing
psychiatric problems rather than a work-related injury. She also argued that
Dr . Goldman's report was inadmissible as a university evaluation under KRS
342-315. The employer responded that the claimant failed to meet her burden
of proving that her complaints resulted from a work-related injury and that
substantial evidence supported the ALJs decision. In a cross-appeal, the
employer argued that the AW erred as a matter of law by failing to decide the
claim based on the evidence of record when it was submitted; that the claimant
failed to meet her burden of proof; and that appointing a university evaluator
after the claim was submitted constituted an abuse of the ALJ's discretion .
The Board found no error in the decision to order a university evaluation
in a situation where an ALJ found the medical evidence to be too disparate to
reach a just outcome. It also determined from Office of Workers' Claims
records that the medical qualifications form for Dr. Goldman indicated that he
was employed by the Medical Assessment Clinic. Relying on Morrison v. Home
Depot, 197 S.W.3d 531 (Ky. 2006), the Board determined that the claim must
be remanded for a decision that excluded his opinions. The Board found it
appropriate under the circumstances for the ALJ to reopen proof time for both
of the parties, order a second university evaluation, or both. The court
explained in Magic Coal Co . v. Fox, 19 S .W .3d 88, 95-98 (Ky. 2000), that the
purpose of KRS 342 .315 is to provide ALJs with clinical findings and opinions
from unbiased medical experts and to assure sufficient numbers of such
experts. In Morrison v. Home Depot, supra , the ALJ ordered a university
evaluation within normal proof time . The University of Louisville assigned the
matter to Dr. Goldman, who examined Morrison at the Medical Assessment
Clinic and submitted clinical findings and opinions . Although Morrison moved
to strike the report as inadmissible on the ground that Dr. Goldman was not a
university employee, the ALJ overruled the motion based on the plain language
of the statute and Morrison appealed . The court relied on Magic Coal Co. v.
Fox, su ra, and determined that KRS 342 .315 does not authorize the
university medical schools to subcontract evaluations to private physicians and
that a physician who is not "'affiliated with', i.e. , employed by or on the staff of
one of the designated medical schools" is not a proper evaluator. Thus, a
report from such a physician is not admissible for the purposes of KRS
342 .315. The court remanded the claim for further proceedings, in other
words, for the ALJ to determine whether Dr. Goldman was affiliated with the
University of Louisville medical school when he performed the evaluation . The
fact that a physician is employed by a private clinic does not necessarily
preclude a finding that the physician is also affiliated with a university.
Although KRS 342 .315 permits a referral for a university evaluation
whenever a medical question is at issue, it evinces no intent to depart from the
regulations that govern the taking of proof. The regulations afford ALJs
considerable latitude to control the taking of proof, but do not allow unfettered
discretion to do so. They anticipate that proof will be complete before the
benefit review conference. The applicable version of 803 KAR 25:010, §13(10)
requires the parties' witness lists to be submitted at least 10 days before the
benefit review conference and requires a summary of each witness's anticipated
testimony. For medical witnesses, the summary must include the diagnosis,
the clinical findings and diagnostic studies that form the basis for the
diagnosis, and any functional impairment rating or work-related restrictions
that the witness assigned. Although 803 KAR 25:010, §13(15) permits an ALJ
to order additional discovery or proof between the benefit review conference
and the hearing upon motion with good cause shown, no regulation anticipates
that additional proof will be taken after a claim has been heard, briefed and
taken under submission.
Causation and the extent of disability were hotly-contested issues in this
claim. The ALJ extended the normal period for taking proof and permitted the
parties to submit medical evidence from more than two physicians. ) The
parties submitted their proof and witness lists; they participated in a benefit
review conference ; and the claim was heard, briefed, and submitted for a
decision before the ALJ requested a university evaluation . We are not
convinced that the disparity in the parties' evidence warranted reopening proof
at that point. The ALJ abused his discretion in doing so and should have been
reversed on appeal.
The decision of the Court of Appeals is reversed. This claim is remanded
to the ALJ to be decided on the basis of the evidence of record on March 23,
2005, when it was submitted .
All sitting. All concur.
803 KAR 25:010, § 10(1) limits a party to direct medical testimony from two physicians
except upon a showing of good cause and prior approval by an ALJ.
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COUNSEL FOR APPELLANT,
T.J. Mme:
Lyn Douglas Powers
Fulton & Devlin
2000 Warrington Way
Suite 165
Louisville, KY 40222
COUNSEL FOR APPELLEE,
CHRISTINE L. BLAGG:
Michael C . Arnold
328 Thomas More Parkway
Crestview Hills, KY 41017
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