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Workers’
Compensation Board
OPINION ENTERED: December 16, 2016
CLAIM NO. 200570825
H & G CONSTRUCTION PETITIONER
VS. APPEAL
FROM HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE
JOHN MATHIS
HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. H&G
Construction (“H&G”) appeals from the September 3, 2015 Opinion, Award and
Order and the October 12, 2015 Order rendered by Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”). The sole issue on appeal is whether John
Mathis (“Mathis”) filed a motion to reopen to assert increased disability
within the time limitations set forth in KRS 342.125(3). For the reasons set forth herein, we conclude
the motion was timely filed and affirm.
Mathis injured his low
back on August 23, 2005 while working as an industrial carpenter for
H&G. He filed a claim and was
awarded benefits based on a 12% impairment rating in an opinion rendered
November 26, 2007. Over the next several
years, his condition progressively worsened.
On June 27, 2013, Mathis’ treating surgeon, Dr. Brandon Strenge, recommended a laminectomy. The matter was submitted to utilization
review and was denied July 17, 2013.
H&G did not file a
medical fee dispute within thirty days.
Mathis filed a motion to reopen on November 18, 2013, requesting that
H&G be directed to pay for the proposed surgery and requesting temporary
total disability (“TTD”) benefits until maximum medical improvement (“MMI”) is
reached. H&G then voluntarily agreed
to pay for the proposed surgery and corresponding period of TTD benefits. Accordingly, on December 17, 2013, the ALJ
dismissed the motion to reopen as moot.
Mathis petitioned the
ALJ for reconsideration of the order dismissing, arguing he wished to preserve
his right to seek attorneys’ fees and costs related to the motion to
reopen. In a January 8, 2014 order, the
ALJ set aside the prior order dismissing the motion to reopen. The ALJ reopened the claim and stated,
“Because there is no present dispute and Plaintiff is being paid TTD, the claim
is placed in abeyance.”
Mathis underwent
surgery on February 12, 2014 and the claim remained in abeyance while he
recovered. Dr. Strenge
placed Mathis at MMI on February 19, 2015 and H&G moved to remove the claim
from abeyance. The ALJ granted the
motion. H&G then petitioned the ALJ
to reconsider his order removing the claim from abeyance. It argued, for the first time, that Mathis’
November 18, 2013 motion to reopen was untimely pursuant to KRS
342.125(3). It requested the claim be
removed from the ALJ’s active docket, and be considered only as it relates to
medical benefits.
In his response to
H&G’s petition for reconsideration, Mathis requested leave to amend his
motion to reopen to seek increased permanent income benefits. The ALJ granted the motion and Mathis amended
his motion to reopen on April 14, 2015.
Thereafter, proof was taken and the claim then proceeded to a
hearing.
In the September 3,
2015 Opinion, Award and Order, the ALJ relied on Dr. Strenge’s
opinion to conclude Mathis’ impairment rating has increased from 12% to 25%,
and he is now permanently totally disabled. The ALJ also considered H&G’s
argument that the motion to reopen is time barred:
KRS
342.125(8) limits a reopening to four years of the “original award or order
granting or denying benefits.” In this
case, Mathis’ original award was issued on November 26, 2007, and his motion to
reopen was filed more than four years later, November 20, 2013. However, in Hall v. Hospitality Resources, Inc., 226 S.W.3d 775 (Ky. 2008), the
Supreme Court of Kentucky said the reference to the “original award or order
granting or denying benefits” was intended to encompass orders other than the
original award. Id.
at 784. In its Brief, the
Defendant concedes its limitations defense runs counter to Hall, but pins its hopes on the Supreme Court overruling Hall through a case currently on appeal,
Dana Corporation v. Roberts, No.
2014-CA-001902, Claim No. 2003-95433.
On August 7, 2015, the Court of Appeals
reaffirmed Hall in Roberts; the employer in that case is
expected to appeal and ask the Supreme Court to revisit its holding in Hall.
In Roberts, the original
settlement was in 2004. Roberts filed a
motion to reopen for medical benefits and TTD on February 2, 2011. An ALJ found the contested treatment
compensable on September 19, 2011, and awarded TTD. Roberts filed a motion to reopen for
increased permanent income benefits on April 23, 2013. Because the motion to reopen was filed more
than four years after the settlement in 2004, the Employer asserted the
limitations defense, but, relying on Hall,
the ALJ, the Workers Compensation Board, and, now, the Court of Appeals have
rejected that defense because the motion had been filed within four years of
the 2011 Order.
In the case at bar, Mathis’ original motion
to reopen was the same as had been presented in Roberts – a request for medical treatment and TTD. No dispute has been raised to TTD benefits
being provided for in the Orders of December 17, 2013, and January 8, 2014, and
thus a new four-year limitations period was triggered. The ALJ amended Mathis’ reopening for pursuit
of increased PPD/PTD on April 14, 2015.
Pursuant to the Hall and Roberts cases, Mathis’ reopening was
timely.
The ALJ’s finding in this regard is
supported by Tim Jones v. Ken Builders
Supply, No. 2011-CA-001246, Claim No. 2005-63853, an unpublished Court of
Appeals case. The original settlement of
that claim was in July of 2006. In 2008,
Jones filed a motion to reopen to resolve a medical dispute. The Defendant responded by asking for an
order of dismissal as moot given its intention to pay for the disputed surgery
(essentially what happened in the case at bar); the ALJ entered such an
order. In November of 2010, Jones filed
a motion to reopen based on a worsened condition. An ALJ overruled the motion and dismissed the
reopening as untimely because it was filed more than four years after the 2006
settlement; the ALJ found the 2008 order dismissing the previous motion to
reopen was not an order “granting or denying benefits” under KRS 342.125(3), as
construed by Hall. The
Workers Compensation Board affirmed. The
Court of Appeals reversed, holding that the 2008 order constituted an order
“denying” benefits, as the statute was interpreted in Hall, and thus the motion
was timely asserted. (The claim was
settled without further appeal.) If the
order of dismissal as moot in the Roberts’
case triggered a new four-year limitations period for reopening, this ALJ’s
Orders of December 17, 2013, and January 8, 2014, in the pending case surely do
so as well.
H&G petitioned for
reconsideration, challenging the date permanent total disability benefits
commenced. The ALJ denied the petition,
and H&G now appeals. The sole issue
raised on appeal is whether Mathis’ motion to reopen is time barred.
We agree with the ALJ’s
sound reasoning expressed above. KRS
342.125(3) states:
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, or seeking temporary total disability benefits during the period of an
award, no claim shall be reopened more than four (4) years following the date
of the original award or order granting or denying benefits, and no party may
filed a motion to reopen within one (1) year of any previous motion to reopen
by the same party.
The original award in
Mathis’ claim was rendered November 26, 2007.
Mathis filed the motion to reopen on November 18, 2013 seeking medical
benefits and TTD benefits during his recovery period following surgery. A motion to reopen for the determination of
medical benefits or to seek TTD benefits is not subject to the four-year time
limitation in KRS 342.125(3).
The ALJ issued an order
on January 8, 2014, acknowledging there is no dispute concerning the payment of
TTD benefits, preserving Mathis’ rights should a disagreement concerning TTD or
medical benefits arise, and placing the claim in abeyance. The reference in KRS 342.125(3) to an
“original award or order granting or denying benefits” includes orders other
than the original opinion. Hall v. Hospitality Resources, Inc., 276 S.W.3d 775, 785
(Ky. 2008). The statutory
language encompasses any subsequent order granting income benefits, including
TTD benefits. Id. As noted by the ALJ, the Supreme Court’s
holding in Hall was recently reaffirmed in Dana Corp. v. Roberts,
2015-SC-000476-WC (Ky. 2016).
H&G distinguishes Hall
on two grounds. First, it emphasizes
Mathis’ motion to reopen was filed six years after the original award. In Hall, the claimant’s motion for
increased permanent indemnity benefits was timely because it had been within
four years of an order granting TTD benefits.
However, in Hall, the order granting TTD benefits was rendered
within four years of the original award.
We find this
distinction unavailing. The four-year
statute of limitation found in KRS 342.125(3) does not apply to motions to
reopen to seek TTD benefits. Therefore,
Mathis’ motion to reopen to seek medical and TTD benefits was timely. We also note, in Roberts, the motion
to reopen to seek TTD benefits was filed seven years after the original
award. Nonetheless, the Supreme Court
permitted the reopening. It first
acknowledged the motion to reopen in Hall was filed much closer to the
original order than the motion in Roberts. The Court then concluded, “[T]he fact remains
that ALJ Smith’s order, entered on September 19, 2011, awarded Roberts TTD
benefits and is an order which restarted the four-year statute of limitations
in KRS 342.125(3).” Therefore, the fact
Mathis’ motion to reopen to seek TTD benefits was filed more than four years
after the original award does not affect the timeliness of his motion to amend
to seek increased indemnity benefits.
H&G also argues the
four-year statute of limitations in this claim refers to the original award,
because there was never any subsequent “order granting or denying
benefits”. It notes the ALJ’s order
simply placed the claim in abeyance because it agreed to pay for the proposed
surgery and corresponding TTD benefits.
We cannot accept this logic, which elevates form over substance. Mathis filed a motion to reopen because
H&G declined to cover the proposed surgery, and it failed to file a medical
fee dispute within thirty days. The ALJ
was not required to enter an order formally awarding TTD benefits because
H&G accepted liability. When viewed
within the procedural context of the claim, the ALJ’s January 8, 2014 Order
essentially amounts to an agreed order concerning medical and TTD
benefits.
For the foregoing
reasons, the September 3, 2015 Opinion, Award and Order and the October 12,
2015 Order rendered by Hon. Douglas W. Gott,
Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL FOR PETITIONER:
HON
STEVEN D GOODRUM
771
CORPORATE DR #101
LEXINGTON,
KY 40503
COUNSEL FOR RESPONDENT:
HON
JEFFREY ROBERTS
509
MAIN ST
MURRAY,
KY 42071
ADMINISTRATIVE LAW JUDGE:
HON
DOUGLAS W. GOTT
PREVENTION
PARK
657
CHAMBERLIN AVENUE
FRANKFORT,
KY 40601
