Kentucky Workers’ Compensation Board Opinions for August 2012

By Marcus A. Roland, Esq.

The Kentucky Workers' Compensation Board rendered 52 decisions for the month of August, 2012.  Summaries regarding opinions of note are set forth below.

Bush v. Jack Cooper Transport, et al, Claim No. 2007-7362 (August 9, 2012):  This is the claimant's appeal stemming from the ALJ's decision to award benefits based on a left foot injury but dismissal of the claim for a low back injury. The Board found that the ALJ's dismissal of claimant's low back claim based solely on the finding that claimant suffered from no permanent impairment was in error.  Despite this, the plaintiff could still under relevant law be found entitled to medical benefits. The claim was remanded to the ALJ for this determination.

Falkenstein, et al v. West Breck Corp., et al, Claim No. 2005-72577 (August 6, 2012):  This is an interesting appeal regarding denial of plaintiff's attorney fees stemming from a medical fee dispute and reopening filed by the employer. The fee was originally denied because there was no recovery of additional income benefits as the post-reopening settlement merely involved a buyout of plaintiff's remaining permanent partial disability benefits. The Board found that attorney fees were warranted; it reversed, reasoning that since the claimant was responding to the employer 's motion to reopen, Plaintiff's counsel was entitled to an attorney fee based on the work performed in representing claimant on the reopening. The Board relied heavily on Duff Truck Lines v. Vezolles, 999 S.W.2d 224 (Ky. App. 1999), reasoning that a failure to award attorney fees in such situations "would place the employee in the position of being virtually unable to obtain legal representation in post-award proceedings initiated by the employer or party similarly situated."

McClure v. Irving Materials, Inc., et al, Claim No. 2011-00016 (August 20, 2012): The claimant here appealed the ALJ's decision to apportion 6% of a total 23% impairment rating to a pre-existing active impairment. Claimant argued the ALJ should have apportioned the dollars and not the impairment percentage. Claimant's argument had no basis in law and the Board, relying upon Tudor v. Industrial Mold & Machine Co., 2011-CA-000580-WC, (rendered September 2, 2011) and Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003), found the ALJ properly relied upon the actual impairment rating attributable to claimant's work-related injury in computing benefits.

Stevens v. AMS Temporaries, Inc., et al, Claim No. 2010-00096 and 2007-83466 (August 20, 2012):This is a rather convoluted set of procedural facts, which basically involved a traumatic hearing loss claim where claimant first filed a form 101 application for resolution of injury claim and then moved to amend the claim by filing a form 103 application for resolution of hearing loss claim. The defendant challenged the filing of the form 103 based on the statute of limitations since more than two years had passed since the termination of benefits. The ALJ granted the motion to dismiss. On appeal, the Board found that the filing of the form 103 related back to the initial filing of the form 101 and, therefore, was not barred by the statute of limitations. In support of its holding, the Board relied upon civil rule 15.01 which allows the amendment of pleadings "shall be freely given when justice so requires," as well as noting the hearing loss claim was sufficiently pled as such in the form 101, despite not having been filed as a form 103.

Hernandez v. UPS, et al, Claim No. 2008-90251 (August 24, 2012): The issue on this appeal was whether the ALJ properly granted the employer a credit for the payment of short-term disability benefits under KRS 342.730 (6). The problem with the evidence before the ALJ supporting the award of a credit to the employer for the payment of short-term disability benefits, as the Board observed, was that essentially there was none. The only document UPS filed in support of its claim for a credit was a mere printout of benefits which was attached to a post-BRC motion to allege entitlement to a credit for the payment of short-term disability benefits. An affidavit of defense counsel was made part of the motion which claimed the short-term disability benefits were paid to plaintiff, that the disability plan was fully funded by the employer and that there was no internal offset provision.  No copy of the plan was introduced and there was no testimony offered from any employee of the short-term disability carrier or the employer confirming the contents of the printout or confirming that the plan satisfied the requirements of KRS 342.730 (6). The Board also pointed out that the employer did not discuss its entitlement to the credit in its brief to the ALJ, but merely requested such in its conclusion. The Board also noted that the statements made in the motion filed by counsel for the employer could not support the ALJ's decision to grant the offset under KRS 342.730 (6) as counsel offered no basis for the statement and, most importantly, the rules of professional conduct prohibited him from testifying in the preceding.

Bill Church Painting Co. Inc. v. Blankenship, et al, Claim No. 2008-74367 (August 20, 2012): The primary import of this opinion is regarding the ALJ's award of attorney fees under KRS 342.040(2).  Under that provision:

If overdue temporary total disability income benefits are recovered in a proceeding brought under this chapter by an attorney for an employee, or paid by the employer after receipt of notice of the attorney's representation, a reasonable attorney's fee for these services may be awarded. The award of attorney's fees shall be paid by the employer if the administrative law judge determines that the denial or delay was without reasonable foundation. No part of the fee for representing the employee in connection with the recovery of overdue temporary total disability benefits withheld without reasonable foundation shall be charged against or deducted from benefits otherwise due the employee.

While the fee was not properly contested by the employer, the Board felt compelled under KRS 342.285(2)(c) to vacate the award concluding the ALJ's determination was not supported by any findings of fact regarding the "without reasonable foundation" element of the provision. The Board further held that the KRS 342.040 fee should be calculated per the formula set forth in KRS 342.320(2)(a) and subject to the $12,000 cap.  Board Member Stivers dissented (and wisely so) claiming the provisions were not to be read in concert, that the plain meaning of the statute does not provide for calculation of the  KRS 342.040 "reasonable fee" per the formula of KRS 342.320 and that, similarly, the $12,000 cap should not apply to any fee awarded under KRS 342.040 since the fees awarded under that provision are separate and distinct from the fee to be awarded under KRS 342.320 .

The Board also addressed the employer's argument that the claim was barred under the going and coming rule.  While it determined the ALJ was compelled to find the claim compensable based on previous findings of fact set forth in an interlocutory order, the Board nonetheless set forth a very instructive discussion on the going and coming rule in Kentucky.

Estate of Joseph Hayward Parks v. Wallace Cotton, et al, Claim No. 2011-00013 (August 27, 2012): The Board avoided addressing the facts of claimant's appeal involving an alleged work-related death by determining the matter was not properly before it because the petitioner was identified only as "the Estate of Joseph Hayward Parks" and not the personal representative of the claimant's estate. As such, the Board found that an indispensable party to the claim had not been named and, therefore, it was without jurisdiction to hear the appeal. On this point, the Board found the case of Harrison v. Park Hills Bd. of Adjustment, 330 S.W.3d 89 (Ky. App. 2011) controlling.

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