Cedar Lake Park Place v. Penny Berry
2021 SC 0052
| Ky. | Dec 15, 2021Background
- Penny Berry, a part‑time RN, alleged work‑related asthma and pulmonary problems from mold exposure at Cedar Lake; last exposure and Form 101 filed October 26, 2012.
- ALJ Rudloff issued an interlocutory award granting medical benefits on June 27, 2013; Cedar Lake initially disputed but later stipulated to injury.
- Berry repeatedly sent spreadsheets and letters itemizing out‑of‑pocket medical expenses (including letters dated June 18, 2013 and October 16, 2013); Cedar Lake requested copies of bills in December 2013.
- Berry provided copies of medical bills in letters dated May 3 and May 31, 2016; parties exchanged correspondence without resolution for two years.
- ALJ Davis (2019) found Berry’s reimbursement requests untimely (first submission in 2018) and non‑compensable; the Board vacated and remanded, finding record evidence the first request was June 18, 2013; Court of Appeals and Kentucky Supreme Court affirmed the Board and remand.
- Central legal question: whether the 60‑day submission rule (803 KAR 25:096 §11) applies and when timeliness is measured (interlocutory award date v. final order), and whether Berry’s submissions were timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 803 KAR 25:096 §11 | Berry: she submitted spreadsheets/letters by June 18, 2013; submissions before ALJ finality are compensable once an interlocutory award issues. | Cedar Lake: ALJ correctly found first submission in 2018 so requests untimely under 60‑day rule. | Court: 60‑day rule applies post‑award (including interlocutory awards); Berry’s first submission was June 18, 2013, so ALJ’s 2018 date was clearly erroneous; remand for further timeliness findings for items after June 27, 2013. |
| Board’s authority to vacate/remand ALJ findings | Berry/Board: Board properly corrected ALJ where its factual finding (first submission date) was contrary to record. | Cedar Lake: Board usurped ALJ’s fact‑finding role. | Court: Board did not exceed authority; may vacate/remand where ALJ’s findings are clearly erroneous or insufficient and additional findings are needed. |
| Waiver of pre‑May‑2013 expenses | Berry: dispute concerned timeliness, not waiver; preserved issue limited to timeliness. | Cedar Lake: Berry waived claims by not presenting bills at the BRC per rule. | Court: Waiver argument not preserved by Cedar Lake on record; Court declined to address it. |
| Interpretation of precedent (Garno/Wonderfoil/Haddix) | Berry: Wonderfoil supports post‑award application and tolling; Garno consistent. | Cedar Lake: argued Court of Appeals misread regulations and precedent. | Court: Garno is consistent; Wonderfoil confirms the 60‑day clock begins at interlocutory or final award (and may be tolled); Court of Appeals’ interpretation affirmed. |
Key Cases Cited
- Garno v. Selectron U.S.A., 329 S.W.3d 301 (Ky. 2010) (concerning application of the 60‑day submission rule as to interlocutory awards)
- Wonderfoil, Inc. v. Russell, 630 S.W.3d 706 (Ky. 2021) (clarified that 803 KAR 25:096 §11 applies post‑award, including interlocutory awards, and may be tolled)
- R.J. Coleman R.R. Constr. v. Haddix, 864 S.W.2d 915 (Ky. 1993) (KRS 342.020 applies to medical statements received after an ALJ determines bills are owed)
- W. Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992) (standards for appellate review of Board decisions)
- Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000) (Board should not reweigh evidence or substitute its judgment for the ALJ)