Allеne HALL, Appellant, v. HOSPITALITY RESOURCES, INC., et al, Appellees.
No. 2007-SC-000153-WC
Supreme Court of Kentucky.
Nov. 26, 2008.
Rehearing Denied March 19, 2009.
273 S.W.3d 775
Scott Caldwell Wilhoit, Clark & Ward, PLLC, Louisville, KY, Counsel for Appellee.
Robert L. Whittaker, Department of Labor, Sharon M. Cooper, Special Fund, Frankfort, KY, Counsel for Special Fund, Labor Cabinet.
Richard M. Joiner, Mitchell, Joiner, Hardesty & Lowther, Madisonville, KY, Counsel for Hon. Richard M. Joiner (ALJ).
Dwight Taylor Lovan, Executive Director, Office of Workers’ Claims, Frankfort, KY, Counsel for Workers’ Compensation Board.
Opinion of the Court by Justice SCOTT.
This is an appeal from a Court of Appeals’ opinion affirming the decision of the Workers’ Compensation Board, both of which are based on the underlying premise that the
Thus, for reasons as are more fully explained hereinafter, we reverse the decision of the Court of Appeals and remand this matter to the Workers’ Compensation Board for such further proceedings as are necessary and appropriate.1
Appellant, Hall, suffered a work related injury to her lower back and cervical spine on April 9, 1995, and filed a timely claim for Workers’ Compensation benefits. As part of her treatment, a lumbar laminectomy was performed on May 1, 1996. On July 22, 1997, the claim was resolved by settlement, with both parties agreeing to benefits based upon a sixty percent (60%) permanent partial disability.
Hall, thereafter, remained under the care of Dr. Weinsweig, and on December 7, 2000, Dr. Weinsweig performed an additional surgical procedure, fusing two of her cervical disc levels. This subsequent surgery necessitated Hall‘s January 10, 2001, motion to reinstate TTD benefits, which was sustained on February 14, 2001, by the Chief Administrative Law Judge (CALJ) who ordered, “that the plaintiff‘s TTD benefits will be reinstated beginning on December 7, 2000, and continuing until the plaintiff has reached maximum medical recovery.”
As required, periodic reports regarding her recovery were submitted to the CALJ. Hall, however, continued to struggle to recover, continued to be compensated for TTD аnd continued to await maximum medical improvement (MMI) for a period of more than seventeen (17) months. Significantly, the four year statute of limitation for reopening, if calculated from the “date of the original award,” expired on July 22, 2001, six (6) months following the entry of the order awarding TTD benefits and almost eleven (11) months before Hall reached MMI. Hall did not reach MMI until just prior to the order terminating the benefits on June 7, 2002.
After gathering medical opinions necessary to show both a “change of medical condition” and “occupational disability,” Hall filed a motion to reopen on November 7, 2003, seeking an increase in her disability award. The motion was filed within two years and nine months of the February 14, 2001, order granting benefits, but more than four years from the “original award” of July 22, 1997.
Appellee then responded that the motion to reopen was barred by the
Following proof, the ALJ issued an “Opinion and Award” finding Appellant had shown (1) the necessary “change of medical condition” аnd “occupational disability;” and, (2) that she is now permanently totally disabled. As to the question of limitation, the ALJ held:
The Chief Administrative Law Judge has already determined that the motion to re-open was filed as of February 14, 2001. This was within four years of the original settlement approved on July 22,
1997. Thus, it is within the time allowed by
KRS 342.125 . The settlement was approved on July 22, 1997. Mrs. Hall underwent additional surgery on December 7, 2000. On January 11, 2001, [she] filed a motion to reopen styled Motion to Reinstate TTD Benefits. The employer responded to this motion as a Motion to Re-open. After the period of TTD, the plaintiff requested additional income benefits. The Chief Administrative Law Judge appropriately determined that the motion to reopen related back to the motion to reinstate TTD benеfits. The substance of the motion clearly related to a request for such benefits as were then ascertainable based upon a change of condition. TTD benefits were payable well into 2002. Arguably, the four-year time period for reopening expired on July 22, 2001. To hold that the motion to reinstate TTD benefits was not a motion to reopen, to hold that no motion to reopen was filed until some document entitled “Motion to Reopen” was filed, and to rule that the time period for requesting additional income benefits expired during the time that income benefits were being paid at the maximum rate, all would be to place form over substance. The Chief Administrative Law Judge appropriately determined that the motion to reopen was timely filed.
Following a denial of Appellee‘s petition for reconsideration, Appellee filed an appeal to the Workers’ Compensation Board. The Board thereafter reversed, holding that (1) the four year statute of limitation is to be calculated from the date of the original award only; and, (2) as the matter was not “automatically” reopened for consideration of total disability benefits as a result of the motion for TTD benefits, the motion to reopen was untimely. The matter was then appealed to the Court of Appeals, which affirmed the Workers’ Compensation Board. It comes to this Court as a matter of right. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795 (Ky.1990). “The function of further review in our Court is to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 688 (Ky.1992).
We now address the issue we consider central to the proper resolution of this case, i.e., the beginning time of the
II. Motions to Reopen
Although the principle of finality of judgments applies to Workers’ Compensation awards the same as court judgments,
The party who seeks to сhange the Workmen‘s Compensation Board‘s decision ... on an application to reopen should be required to make a reasonable prima facie preliminary showing of the existence of a substantial possibility of the presence of one or more of the prescribed conditions that warrant a change in the Board‘s decision before his adver-
sary is put to the additional expense of relitigation. The Board should formulate reasonable standards for the form and content of such a preliminary showing.3
Id. at 682. Stambaugh, “left [it] to the fact-finder‘s ‘reasonable discretion’ to determine whether the showing in a particular case was sufficient to warrant the taking of evidence.” Hodges, 182 S.W.3d at 500 (quoting Stambaugh, 488 S.W.2d at 682). However, where “the premise for а motion to reopen is a post-award change of disability [or medical condition], the change must exist when the motion is filed and the motion must be supported by the prima facie showing that
Although, Hodges, dealt with “the type of prima facie showing that
The record before the ALJ on January 26, 2001, included medical evidence that addressed the claimant‘s condition in May, 1999, when Dr. Davies began treating her. That evidence did not permit her impairment in 1987 to be compared with her impairment in December, 2000, when she filed her motion to reopen. Under the circumstances, it was an abuse of discretion to grant the motion.
Id. (emphasis added).
A claimant‘s burden at reopening is to prove that she sustained a post-settlement worsening of impairment from the injury; to prove that the change is permanent; and to prove that it caused her to be totally and permanently disabled. Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 217, 218 (Ky.2006). “Income benefits are awаrded based upon the amount of occupational disability which exists at the time the worker reaches maximum medical improvement following an injury,” Brooks v. University of Louisville Hosp., 33 S.W.3d 526, 530 (Ky.2000), and an “[im]pairment is considered to be permanent when it has reached maximum medical improvement (MMI), meaning it is well stabilized and unlikely to change substantially in the next year with or without medical treatment.” Colwell, 217 S.W.3d at 217. Thus, given the fact that Hall was still receiving TTD benefits and had not reached MMI by the time the four year limitation allegedly ran, she could not have made the prima facie showing as is required upon the filing of a motion to reopen prior to its alleged expiration date.
Addressing the claimant‘s argument that the abeyance provisions contained in
KRS 342.265(5) and the statute of limitations contained inKRS 342.185(1) should be applied so as to extend the statute of limitations on reopening, the court determined those statutes were directed solely to the “application for resolution of a claim” and the filing of an “application for adjustment of claim” respectively. The court stated that based upon the plain language of the statutes, they were applicable to initial claims and not motions to reopen.
Id. (citations omitted) (emphasis added). There is simply no statutory authority for an ALJ to place a motion to reopen in abeyance once the motion is challenged by an opposing party. Moreover, the suggestion by the dissent, that since Appellant had asked “for all proper relief” in her motion for TTD benefits her
Thus, as a practical matter it takes many months to put together experts and expert reports making the appropriate medical/legal comparison between the prior permanent partial disability and a permanent total disability, as well as the other documentation required by
Generally, the standard for reopening that existed аs of the date of the injury controls the rights and obligations of the parties. Woodland Hill Min., Inc. v. McCoy, 105 S.W.3d 446, 448 (Ky.2003);
(1) Upon motion by any party or upon an ... administrative law judge‘s own motion, an ... administrative law judge may reopen and review any award or order on any of the following grounds:
....
(d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.
....
(3) Except for reopening solely for determination of the compensability of medical expenses, fraud, or conforming the award as set forth in
KRS 342.730(1)(c)2. , or for reducing a permanent total disability award when an employee returns to work, no claim shall be reopened more than four (4) years following the date of the original award or order granting or denying benefits, or within two (2) years of such award or order, and no party may file a motion to reopen within two (2) years of any previous motion to reopen by the same party.4....
(8) The time limitation prescribed in this section shall apply tо all claims irrespective of when they were incurred, or when the award was entered, or the settlement approved. However, claims decided prior the effective date of this act, may be reopened within four (4) years of the award or order or within four (4) years of the effective date of this act, whichever is later, provided that the exceptions to reopening established in subsections (1) and (3) of this section shall apply to these claims as well.
In this instance, the ALJ found the settlement as originally approved to be consistent with an award pursuant to
Allene Hall, as a result of the injury of April 9, 1995, is now totally occupationally disabled.
There has been a change in medical condition and a change of occupational disability as a result of the injury of April 9, 1995.
III. The KRS 342.125(3) Statute of Limitation
In two unpublished opinions, Cook v. Unicorn Min., No.2003-SC-0616-WC, 2004 WL 1908114, (August 26, 2004) and Cruse v. Aristech Chemical Co., No.2004-SC-0291-WC, 2005 WL 119771, (January 20, 2005),5 this Court rendered opinions supporting the opinions of the Workers’ Compensation Board and Court of Appeals on facts similar to the facts at hand. We did not, however, closely scrutinize the distinction between the words “original award or order granting or denying benefits.” See
Wray v. Allied Systems, No.2004-SC-002122-WC, 2005 WL 1058862, (Ky.App.2005), followed with the same result as Cruse. Here again, a subsequent order reducing the Appellant‘s award on the employer‘s motion to reopen was not recognized as an “order granting or denying benefits.” And here, in this case, the Court of Appeals relied on Kendrick, 145 S.W.3d at 425. Kendrick, however, dealt only with the question of whether the voluntary payment of post-award TTD benefits by the employer without a motion and order granting such benefits, extended the four year statute of limitations under
It is now apparent that these previous interpretations of
“The seminal duty of a court in construing a statute is to effectuate the intent of the legislature.” Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky.2002) (citing Commonwealth v. Harrelson, 14 S.W.3d 541 (Ky.2000)). “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” United States v. Plavcak, 411 F.3d 655, 660 (6th Cir.2005) (citing Perrin v. United States, 444 U.S. 37, 42 (1979)). Thus, we are “to ascertain the intention of the legislature from words used in enacting statutes rather than surmising what may have been intended but was not expressed.” Stopher v. Conliffe, 170 S.W.3d 307, 309 (Ky.2005), overruled on other grounds by Hodge v. Coleman, 244 S.W.3d 102 (Ky.2008).
Thus, if a statute is clear and unambiguous and expresses the legislature‘s intent, the statute must be applied as written. Griffin v. City of Bowling Green, 458 S.W.2d 456, 457 (Ky.1970). And absent an аmbiguity, “there is no need to resort to the rules of statutory construction in interpreting it.” Stewart v. Estate of Cooper, 102 S.W.3d 913, 915 (Ky.2003). However, where an ambiguity does exist, an “absurdity which may follow one construction or another may properly be considered.” Fayette County v. Hill, 304 Ky. 621, 625, 201 S.W.2d 886, 889 (1947). Statutes, of course, “must be read as a whole and in context with other parts of the law.” Lewis v. Jackson Energy Co-Op Corp., 189 S.W.3d 87, 92 (Ky.2005).
“It is a basic principle of statutory construction that terms joined by the disjunctive ‘or’ must have different meanings because otherwise the statute or provision would be redundant.” United States v. Hill, 79 F.3d 1477, 1482, 1483 (6th Cir.1996); see also Garcia v. United States, 469 U.S. 70, 73 (1984) (“Canons of construction indicate that terms connected in the disjunctive in this manner be given separate meanings.“). Although one could argue the words “or” and “and” can be easily interchanged, “we point out that to make such interchange it must be obvious that the intent оf the legislature would be thwarted if the change were not made.” Boron Oil Co. v. Cathedral Foundation, Inc., 434 S.W.2d 640, 641 (Ky.1968) (citing Duncan v. Wiseman Baking Co., 357 S.W.2d 694 (Ky.1962)). Here, if the limitation was intended to mean four years from the “original decision,” it is fair to assume the legislature would not have added the additional language, “or order granting or denying benefits.”
That the reference to the “original award or order granting or denying benefits” was intended to encompass orders granting benefits other than the “original award,” is established by several additional uses in the same statute. For example,
The Appellant‘s motion, therefore, was clearly filed within the four year period of the statute of limitations contained in
In contrast, it has been suggested that if
In the case of motions to reopen to increase or decrease monetary benefits filed within the limitation period set out in
A second obvious obstacle is obtaining legal counsel to file, or assist, in such a motion as there are no incentives for claimant‘s attorneys to file frivolous motions to reopen. A meritorious motion to reopen is challenging enough, and pursuant to
Aside from CR 11,
This Court addressed such an infraction in the case of Pikeville Coal Co./Chisholm Coal Co. v. Sullivan, 895 S.W.2d 574 (Ky.1995), wherein a claimant filed three successive claims for retraining incentive benefits within two years against the same employer. In Pikeville Coal Co., the employer asserted its concern to the Court regarding employers being subjected to economic blackmail because of the threat of successive claims for retraining incentive benefits which could cost more to defend than to settle. This court responded as follows:
We would point out ... that there are ramifications for filing frivolous claims, and costs may and should be assessed against the offending party.
KRS 342.310 . Certainly, merely filing the same claim over and over аgain, after a decision has been reached on the merits, and without different circumstances to warrant reopening,KRS 342.125 , or a new claim, justify all penalties and sanctions permitted by law.
With regard to motions for TTD benefits, this could not be the case, as
Thus, our analysis today convinces us that our holdings in Cruse and Cook, as
III. Conclusion
For the forgoing reasons the opinion of the Court of Appeals is hereby rеversed and this matter is remanded to the Workers’ Compensation Board for such further proceedings as are necessary and appropriate.
All sitting. CUNNINGHAM, NOBLE, and SCHRODER, JJ., concur. MINTON, C.J., dissents by separate opinion in which ABRAMSON and VENTERS, JJ., join.
Dissenting Opinion by Chief Justice MINTON.
The 1996 Extraordinary Session of the Kentucky General Assembly enacted emergency legislation to effectuate immediate and sweeping changes in Kentucky‘s Workers’ Compensation system.1 One of the principal changes came in Kentucky Revised Statutes (KRS) 342.125, which established a time limit for reopening claims.2 As we have explained in earlier opinions discussing reopening claims, final workers’ compensation claims are unique because they are subject to reopening, unlike other final judgments. Our legislature in 1996 found it necessary to set time limits on theretofore unlimited rights of reopening to avoid what the legislature saw as a looming financial catastrophe in Kentucky:
Final workers’ compensation awards are subject to the principles of the finality of judgments and are enforceable in circuit court.
KRS 342.305 . But, unlike other final judgments, they may be reopened on the motion of either party under certain, specified conditions. Among those conditions is a post-award change of disability.KRS 342.125(1) . The 1996 Extraordinary Session culminated in a comprehensive revision of Chapter 342 in an attempt to assure that benefits were promptly delivered, to remedy the failure to reduce the unfunded liability of the Special Fund, and to remedy the competitive disadvantage that Kentucky‘s employers faced due to the high cost of securing worker‘s compensation insurance, all of which are legitimate governmental purposes. 1996 Ky. Acts (1st Ex.Sess.), § 90. In view of what the legislature viewed as an emergency situation, the amendments took effect immediately upon approval of the governor. Id. [citing to 1996 Ky.Acts. (1st Ex.Sess.), § 90].3
After the 1996 amendments, all claims—with only certain specified exceptions provided in
I must dissent as today the majority blithely overrules binding precedent and engages in tortured semantics to allow reopening within four years of any order, not just the original order granting or denying benefits. The plain and simple meaning of the statute mandates a four-year limitations period after the original denial or grant of benefits, as aptly stated by then-Judge Schroder in Wray:
The plain language of
KRS 342.125(3) only provides for a four-year limit fоllowing the date of the original award. The statute does not provide for a subsequent order or award to have any effect on the four-year period....7
The General Assembly could have provided a statute of limitations which imposed a four-year limitation from the date of the original award or four years from the last order on a motion to reopen—whichever is later, but it did not. Therefore, we are bound by the plain-meaning of the statute and cannot expand the period of limitations as [the claimant] asks.”
I do agree that the Workers’ Compensation Act is social legislation enacted to benefit injured workers. But proceedings under the Act are adversarial. And a worker cannot sit on her rights and let a statute of limitations expire, either with regard to an initial claim or a motion to reopen.
I would affirm.
ABRAMSON and VENTERS, JJ., join this dissenting opinion.
WORKFORCE DEVELOPMENT CABINET, Department for Employment Services, Division of Unemployment Insurance, Appellant, v. Mary C. GAINES, Appellee.
No. 2005-SC-000965-DG.
Supreme Court of Kentucky.
Nov. 26, 2008.
Rehearing Denied March 19, 2009.