FORD MOTOR COMPANY v. JOSEPH BADALL; HONORABLE PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY AND JOSEPH BADALL v. FORD MOTOR COMPANY; HONORABLE PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY
NO. 2024-CA-0796-WC, NO. 2024-CA-0932-WX
Commonwealth of Kentucky Court of Appeals
FEBRUARY 21, 2025
TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-13-00501
OPINION AFFIRMING
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
CALDWELL, JUDGE: Fоrd Motor Company (Ford) petitions for review of an opinion of the Workers’ Compensation Board (Board) affirming an Administrative Law Judge (ALJ) decision awarding Joseph Badall (Badall) enhanced permanent partial disability (PPD) benefits upon reopening. Specifically, Ford challenges the application upon reopening of the two-multiplier in
Badall cross-petitions for review, challenging the ALJ‘s denial of temporary total disability (TTD) benefits for the nearly three-year period between the filing of Badall‘s motion to reopen and his undergoing a surgery, which was approved by an ALJ a few months after the filing of Badall‘s motion to reopen.
We affirm.
FACTS
In February 2014, an ALJ entered an Opinion, Order, and Award (initial ALJ decision). The ALJ found that due to Badall‘s work as a forklift operator for Ford, Badall had suffered a cumulative trauma injury to his back which manifested on January 7, 2013.
The ALJ found Badall was medically released to return to work with restrictions on or about March 28, 2013. The ALJ further found Badall had returned to work full-time at Ford in other positions since April 2013, earning the same wages as before his injury. The ALJ noted Badall stated he was not seeking application of the two- or three-multipliers in
The ALJ awarded Badall TTD benefits from January 7, 2013, through March 28, 2013. The ALJ also awarded Badall PPD benefits with no statutory multipliers for 425 weeks with these benefits suspended during periods of TTD and subject to the limitations set forth in
Neither party filed a petition for review of the initial ALJ decision. Badall retired from Ford as of May 1, 2016.
In March 2018, Ford filed a motion to reopen to assert a medical fee dispute. Ford challenged Badall‘s request for back surgery recommended by Dr. John Harpring, alleging the surgery was not medically necessary and/or not related to the work injury of January 7, 2013. In early April 2018, the ALJ found Ford had made a prima facie showing for reopening. However, in late May 2018, the claim was returned to the Frankfort motion docket for consideration of a motion to reopen for worsening, as the ALJ found the dispute to be beyond the scope of its medical fee dispute docket.
In early June 2018, Badall filed a motion to reopen, checking a box on a form indicating the basis was a change of disability.
The Employer filed а medical fee dispute denying a request for a bilateral L4-5 discectomy by Dr. Harpring. The Claimant is requesting TTD during the period of recuperation and possibly additional PPD and/or PTD [permanent total disability] depending on the outcome of the surgery. This affiant feels that this warrants a reopening under
KRS 342.125 for this issue in addition to the medical issues. In addition, Claimant is no longer working for the same or greater wages and therefore may be entitled to a modification of benefits pursuant toKRS 342.730(1)(c)(1) or(2) .
In mid-June 2018, the chief ALJ entered an order passing Badall‘s motion to reopen for TTD, should he prevail on the request for surgery, pending a decision on the medical fee dispute.
In November 2018, ALJ Jane Rice-Williams entered an interlocutory opinion and order resolving the medical fee dispute in Badall‘s favor and finding the recommended back surgery to be medically reasonable, necessary, and work-related and thus compensable. The ALJ also ordered that TTD shall be paid beginning the date of surgery and that: “Following surgery and upon reaching MMI [maximum medical improvement], either party may make a motion to terminate TTD and place the claim on the active docket.”
In April 2020, the ALJ ordered the parties to submit status reports. Shortly thereafter, Badall filed a status report by counsel noting Badall now lived in Florida and had difficulty scheduling appointments with Dr. Harpring in Kentucky, but Badall had sеen Dr. Harpring as of early March 2020, just before the COVID-19 shutdown. A few months later, the case was assigned to ALJ Peter Naake.
The ALJ ordered that additional status reports be filed several months later. Badall filed additional status reports in December 2020 and January 2021 expressing concerns that COVID-19 restrictions might delay scheduling the surgery and stating that his blood sugar was high during pre-testing, so he was
prescribed medication to bring that down. The ALJ again ordered the parties to file status reports in the summer of 2021 and Badall then filed a status report indicating the surgery had been approved and he was awaiting scheduling.
Badall underwent the requested back surgery on August 11, 2021, and Ford began paying TTD as of that date. Ford filed a motion to terminate TTD as of December 26, 2021, when Badall reached the age of 70. See
Next, Ford asserted another medical fee dispute. The case was referred to mediation which failed to resolve the parties’ disputes. After the parties presented proof including medical reports, the ALJ issued an opinion, order, and award in December 2023 (“ALJ decision on reopening“).
The ALJ awarded Badall enhanced PPD benefits (applying the two-multiplier) for the period from Badall‘s early May 2016 retirement until Badall‘s 70th birthday in late December 2021 with interruptions for periods of TTD. The ALJ also awarded Badall TTD benefits from the August 2021 date of surgery until Badall‘s 70th birthday in late December 2021. However, the ALJ denied Badall‘s request for TTD during the time frame between the date Badall‘s motion to reopen was filed (June 4, 2018) and the date surgery occurred (August 11, 2021).
in an opinion entered June 7, 2024 (Board opinion). Further facts will be provided as necessary in our analysis.
ANALYSIS
Standard of Review
When the Court of Appeals reviews a Workers’ Compensation Board opinion resolving an appeal of an ALJ decision, this Court should not “correct the Board” unless “the Court perceives the Board 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 Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
We first address Ford‘s challenge to the award of enhanced PPD benefits applying the two-multiplier in
Application of the Two-Multiplier in KRS 342.730(1)(c)2. Upon Reopening
If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this
subsection. This provision shall not be construed so as to extend the duration of payments.
(Emphasis added.)
Moreover,
In the decision on reopening, the ALJ ordered that Badall‘s PPD benefits be enhanced by the two-multiplier in
Ford contends the Board erred in affirming the ALJ‘s decision on reopening. It contends application of the two-multiplier was barred by res judicata. In the alternative, it argues the ALJ erred in retroactively ordering the enhancement prior to the date Badall filed his motion to reopen. We first address the res judicata argument.
No Reversible Error in Board‘s Affirming ALJ‘s Determination that Application of the Two-Multiplier in KRS 342.730(1)(c)2. Was Not Barred by Res Judicata
Ford notes the initial ALJ decision states Badall‘s brief indicated he was not seeking application of the two-multiplier and the ALJ declined to address
whether Badall could return to the type of work performed at the time of injury because Badall “has withdrawn the issue.” Ford asserts Badall chose to waive any entitlement to enhanced PPD benefits before the initial ALJ decision and points out that
Ford states Badall asserted entitlement to the two-multiplier in 2018, but contends he failed to list two-multiplier application as a contested issue or argue for this enhancement of PPD benefits during the interlocutory stage of proceedings. Ford also asserts Badall did not argue he was entitled to twо-multiplier enhancement in 2016 (when Badall retired), but instead waited until after his benefits terminated entirely to argue entitlement to enhanced PPD benefits. Ford submits that Badall had an opportunity to assert entitlement to the two-multiplier earlier but withdrew the issue.
In sum, Ford contends the concepts of issue preclusion and claim preclusion apply. Therefore, Badall‘s claim for enhanced PPD benefits pursuant to
In response, Badall points out that his brief to the ALJ prior to the initial ALJ decision was based on the fact situation at that time – i.e., the fact that he was working and was not making less money than before his injury. So, he
asserts entitlement to statutory multipliers was not an issue then. Badall contends application of a statutory multiplier did not become an issue until, after returning to employment at the same or greater wages, his employment ceased upon retirement.
As Badall points out, the Board agreed with the ALJ‘s rejection of Ford‘s res judicata arguments. The Board opinion concluded that by operation of law, ”
Moreover, the Board opinion agreed with the ALJ that application of the two-multiplier in
Having carefully reviewed the record and applicable law, we discern no reason to correct the Board‘s conclusion that application of the two-multiplier
in
Not only do we perceive no flagrant error in assessing the evidence, but we also perceive no indication that the Board “overlooked or misconstrued controlling statutes or precedent” in affirming the ALJ‘s determination that res judicata did not bar enhancement of PPD benefits upon reopening. See id. at 687-88. Instead, the resolution of this issue by both the Board and the ALJ is entirely consistent with the
Recent precedent from our Supreme Court recognizes that when a workers’ compensation statute “expressly provides fоr reopening under specified conditions,” res judicata does not apply when such specified conditions are met.
Lakshmi Narayan Hosp. Group Louisville v. Jimenez, 653 S.W.3d 580, 587 (Ky. 2022) (quoting Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681, 682 (Ky. 1972)).2
Moreover, the plain language of
In sum, we discern no reversible error in the Board‘s rejection of Ford‘s argument that res judicata barred the application of the two-multiplier to enhance Badall‘s PPD benefits upon reopening.3
Next, we address Ford‘s argument that the Board erred in affirming the ALJ‘s determination that enhancement of PPD benefits pursuant to
No Reversible Error in Board‘s Affirming ALJ‘s Commencement of Enhanced Benefits Pursuant to KRS 342.730(1)(c)2. Prior to the Filing of Badall‘s Motion to Reopen
Specifically, Ford contends the ALJ misconstrued “the Kentucky Supreme Court‘s ruling in Muthler v. Climate Control of Kentucky . . . .”4 Ford suggests the ALJ improperly used Muthler as authority to apply the two-multiplier beginning in May 2016, prior to Badall‘s filing a motion to reopen in June 2018. Ford contends Muthler does not apply here because the ALJ in Muthler awarded two-multiplier enhancement of PPD pursuant to
employment during the disability period without ordering the application of the two-multiplier during any specified time frame.5
Badall disagrees with Ford‘s arguments on this issue, simply stating that the ALJ did not misunderstand Muthler and correctly relied upon it to retroactively enhance PPD benefits by the two-multiplier in
Certainly, Muthler is not factually or procedurally identical to this case. For example, the ALJ ordered that Muthler was entitled to the application of the two-multiplier in
Nonetheless, the Board in Muthler addressed the issue of whether, upon reopening, enhanced benefits pursuant to
Although
KRS 342.125(4) requires “any change in the amount of compеnsation” to be ordered “only from the date of filing the motion to reopen,”KRS 342.730(1)(c)2. states unequivocally that weekly benefits for partial disability “shall be” twice the amount otherwise payable “[d]uring any period of cessation” of employment at the same or a greater wage. Mindful thatKRS 342.730(1)(c)2. is a more specific provision that applies only to a discrete class of awards entered at reopening, we conclude that the legislature intended by its unequivocal language to exempt from the limitation imposed byKRS 342.125(4) those awards entered for the purpose of conforming the payments ordered previously with the requirements of subparagraph 2. ofKRS 342.730(1)(c) . In other wordsKRS 342.125(4) does not govern the date for commencing such an award.KRS 342.730(1)(c) 2. generally requires the award to commence with the cessation of employment at the same or a greater wage.
(Footnote omitted.)9
Especially given the lack of published precedent on point, we cannot fault the ALJ or the Board for following our Supreme Court‘s unpublished opinion in Muthler. While Muthler may be different from this case in certain respects,10 our Supreme Court nonetheless made clear therein that
reversible error in the Board‘s resolution of this issue pursuant to the standard established in Kelly, 827 S.W.2d at 687-88.
Next, we consider Badall‘s cross-petition for review of the denial of TTD Benefits for the period between the June 2018 filing of his motion to reopen and his back surgery on August 11, 2021.
Denial of TTD Benefits from Date of Filing Motion to Reopen (June 4, 2018) Until Date of Surgery (August 11, 2021) Properly Affirmed by Board
Badall claims the ALJ erred in denying him TTD benefits during the period between his filing his motion to reopen in June 2018 and his undergoing the requested surgery in August 2021. He argues he was entitled to TTD from the date he filed his motion to reopen (June 4, 2018) until he reached the age of 70 in late December 2021 – based on his assertions that he was unable to return to the employment he had at the time of his injury and was not at maximum medical improvement (MMI) when he filed his motion to reopen.
medical improvement and not have improved enough to return to work.“). (Emphasis in original.)
The ALJ noted that despite the parties’ apparent focus on whether Badall was able to return to his customary work at Ford during the contested period, Badall‘s entitlement to TTD for this contested period depended on him not being at MMI then. The ALJ found Bаdall was at MMI and so was ineligible for TTD benefits during this contested period, explaining his reasoning in detail.
The ALJ decision on reopening quoted the definition of maximal [sic] medical improvement in the American Medical Association‘s Guides to the Evaluation of Permanent Impairment (5th ed.): “condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated.”
Next, the ALJ stated: “When a patient is anticipating having a surgery in the near future, he can be considered not to be at MMI because his medical condition is expected to change with the surgery.” The ALJ further explained thаt in workers’ compensation cases, the decision to have surgery entailed three parts: 1) a physician‘s proposing or recommending the surgery, 2) the claimant‘s consenting to the surgery after consultation with the surgeon, and 3) the payment obligor‘s agreeing to pay for the surgery or being ordered to do so.
Based on the November 2018 interlocutory order approving the surgery as compensable, the ALJ found that the first and third parts of the decision for surgery were fulfilled at that time, but that Badall did not decide to pursue surgery until 2021. So, the ALJ determined Badall was at MMI for the period between his filing his motion to reopen in June 2018 and his deciding to have surgery
[Badall‘s] decision not to pursue surgery meant that his medical condition was not likely to change in the next year until he had taken steps to proceed with the surgery. In fact Badall‘s condition did not change and remained stable for two years and nine months after ALJ Rice-Williams’ interlocutory decision, until he underwent surgery on August 11, 2021. Badall did not testify as to the date he finally decided to proceed with the surgery or the reasons he delayed for two years and nine months before undergoing the surgery after it was approved, and no other evidence of record explains this delay.11
Therefore, Badall met the definition of having reached maximum mеdical improvement, and was not entitled to temporary total disability benefits, until the time he decided to have surgery and contacted Dr. Harpring to schedule it. At that time his condition would have been expected to change within the next year. The date Badall decided to have surgery and contacted Dr. Harpring was not proven by evidence of record.
The ALJ also stated he found persuasive Dr. Loeb‘s opinion testimony that Badall was at MMI in July 2018.12
Badall contends the Board erred in affirming the ALJ‘s denying him TTD benefits for the period between his filing the motion to reopen in June 2018 and his undergoing surgery in August 2021. He suggests that the November 2018 interlocutory order contains a clear finding he was not at MMI at thаt time since the ALJ ordered TTD paid until he reached MMI. However, this interlocutory order clearly provided only that TTD be paid from the date of surgery until Badall reached MMI thereafter – thus it did not clearly indicate he was not at MMI before the surgery.
Moreover, even a statement in Badall‘s cross-petition suggests it is proper to consider a claimant to be at MMI when the claimant does not undergo a recommended surgery:
The Administrative Law Judges routinely award benefits from the date of surgery, kind of a condition precedent, so they are not put in a position where TTD has been
ordered and the surgery does not take place because the Claimant, as here,
wоuld be at MMI if the surgery did not take place, but here it did.
Though Badall ultimately did undergo surgery, he did not do so for nearly three years after an ALJ approved the surgery and the ALJ found Badall offered no evidence explaining such delay in pursuing the surgery or indicating any change in his condition during this period.
Although the unexplained delay played a key part in the ALJ‘s decision on TTD, the parties do not discuss in depth the ALJ‘s findings about how the unexplained delay in Badall‘s undergoing surgery affected whether he was at MMI or entitled to TTD benefits in their briefs to this Court.
In his statement of the case, Badall suggests the ALJ erred in finding Badall to be at MMI prior to the November 2018 interlocutory order based on Ford‘s argument that an extended period of TTD “based upon a unilateral delay” would be improper. Badall contends such a unilateral delay “has absolutely no bearing on the factual and legal issues here.” However, Badall cites no authority for this contention and does not discuss this contention any further in the argument section of his cross-petition. See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (“Our courts have established that an alleged error may be deemed waived where an appellant fails to cite any authority in support of the issues and arguments advanced on appeal. . . . It is not our function as an appellate
court to research and construct a party‘s legal arguments, and we decline to do so hеre.“). (Citations omitted.)
In his argument about TTD, Badall asserts he was not at MMI from June 4, 2018 through August 11, 2021 based on Dr. Nazar‘s testimony that Badall would likely not reach MMI until about a year after the surgery. However, the ALJ acknowledged Dr. Nazar opined Badall was not at MMI when the surgery was performed or during the preceding months when issues about whether surgery was medically necessary or appropriate were being litigated. Yet, the ALJ did not indicate he found Dr. Nazar‘s opinion on this matter persuasive. Instead, the ALJ found Dr. Loeb‘s opinion to the contrary persuasive.
Moreover, the ALJ found Badall had not presented substantial evidence to support altering the terms of the November 2018 interlocutory deсision which awarded TTD benefits beginning on the date of surgery. So, in the decision on re-opening, the ALJ declined to “arbitrarily change that award without substantial evidence of a different date that Badall was temporarily totally disabled.” Instead, consistent with the November 2018 interlocutory order, the ALJ concluded Badall was entitled to TTD from August 11, 2021 (the date of surgery) until December 26, 2021 (the date Badall reached age 70).
On appeal, the Board noted that Badall provided no explanation for the nearly three-year delay between the November 2018 interlocutory order and
Badall‘s undergoing the surgery in August 2021 and offered no evidence about this issue. The Board affirmed the ALJ‘s denial of TTD for thе contested period, stating the ALJ had “thoroughly reviewed the supplemental medical evidence, performed the proper analysis, and clearly provided the basis for his determination to rely on Dr. Loeb‘s opinion that Badall had reached MMI in 2018 and that his condition did not change prior to the surgery date.” The Board also concluded the ALJ‘s decision to deny TTD for the time between Badall‘s filing his motion to reopen in June 2018 and his undergoing surgery in August 2021 was supported by substantial evidence and that the evidence did not compel a contrary result.
Despite the parties’ apparent focus on whether the ALJ erred, our focus is on whether the Board flagrantly erred in its assessment of the evidence, resulting in gross injustice, or overlooked or misconstrued controlling statutes and precedent in affirming the ALJ‘s denial of TTD during the contested period. See Kelly, 827 S.W.2d at 687-88.
Having reviewed the record and applicable law, we discern no reversible error in the Board‘s affirming the ALJ on this issue. Badall did not challenge in his cross-petition the ALJ‘s finding, affirmed by the Board, that he offerеd no evidence explaining the nearly-three-year delay between the November 2018 interlocutory order approving the surgery and his undergoing the surgery in August 2021. Nor did he cite to any evidence of record explaining the delay in his undergoing surgery or cite any authority to support his contention that such delay has no bearing on determining whether he was at MMI or entitled to TTD during the contested period.
Moreover, his pointing to Dr. Nazar‘s opinion that Badall was not at MMI in 2018, prior to undergoing surgery in 2021, does not show that the Board erred in affirming the ALJ‘s finding to the contrary. Perhaps a different factfinder might have found Dr. Nazar‘s opinion that Badall was not at MMI more persuasive than Dr. Loeb‘s testimony (which the ALJ relied upon) that Badall was at MMI in the summer of 2018. Nonetheless, when the medical evidence is conflicting, the ALJ has the sole prerogative to determine which medical evidence to believe. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 109 (Ky. App. 2007). The Board properly declined to second-guess the ALJ‘s assessment of the weight and credibility of the conflicting medical evidence. The Board also properly affirmed the ALJ‘s finding that Badall was at MMI during the period between his filing his
motion to reopen in June 2018 and his undergoing surgery in August 2021 as supported by substantial evidence including Dr. Loeb‘s opinion testimony.
In sum, we discern no reversible error in the Board‘s affirming the ALJ‘s denial of TTD benefits from June 4, 2018, until August 11, 2021.
Further arguments raised by the parties which are not discussed herein have been determined to lack merit or relevancy to our resolving the parties’ cross-petitions for review. For example, it is not necessary for us to address the alternative arguments raised in Ford‘s response to the cross-petition for affirming the denial of TTD benefits for the contested period since the Board properly affirmed the ALJ on the TTD issue based on the ALJ‘s properly supported findings about MMI.
CONCLUSION
For the foregoing reasons, we AFFIRM the Board.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS-APPELLEE:
Brian W. Davidson
Joshua W. Davis
Louisville, Kentucky
BRIEF FOR APPELLEE/CROSS-APPELLANT:
Wayne C. Daub
Louisville, Kentucky