Commonwealth of Kentucky 

Workers’ Compensation Board







CLAIM NO. 201186275



NOVO-NORDISK,                                  PETITIONER




















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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


RECHTER, Member.  Novo-Nordisk, as insured by XL Specialty (“XL”) appeals from the November 4, 2016 Order rendered by Hon. Grant S. Roark, Administrative Law Judge (“ALJ”) denying its motion to reopen a July 27, 2015 award.  On appeal, XL argues it has been denied its due process rights by the ALJ’s refusal to reopen the claim.

     This appeal arises from the especially convoluted procedural history of this claim.  On August 21, 2012, Sandra Darby (“Darby”) filed a claim for two injuries occurring on December 1, 2010 and July 27, 2011.  At the time of both injuries, she was employed by Novo-Nordisk.  However, Novo-Nordisk was insured by Zurich America (“Zurich”) at the time of the 2010 injury, and by XL at the time of the 2011 injury.  Her Form 101 named Novo-Nordisk as insured by both Zurich and XL. 

     According to the Department of Workers’ Claims records, XL received notice of Darby’s Form 101 at its Exton, Pennsylvania address.  However, no appearance was entered on XL’s behalf, and it filed no Form 111 within forty-five days as required by 803 KAR 25:010 Section 7(2)(a).  XL was also served with a copy of Darby’s subsequent motion to hold the claim in abeyance while she continued treatment, and served with the October 11, 2012 order placing the claim in abeyance. 

     By Order dated May 17, 2013, the 2010 injury claim was removed from abeyance and proof-taking commenced.  It is unclear from the record before this Board whether XL was sent a copy of this Order.  Darby continued to receive treatment for her right elbow and shoulder injuries resulting from the 2010 incident.  In a July 11, 2013 Motion for Interlocutory Relief, Darby indicated XL had paid medical expenses and temporary total disability benefits for the 2011 left elbow injury, and that she had reached maximum medical improvement of that injury. 

     On August 21, 2014, Darby again moved to remove the claim from abeyance.  It is unclear why this motion was filed, as the claim had previously been removed from abeyance.  Nonetheless, in a September 5, 2014 Order, the ALJ again ordered the claim removed from abeyance.  However, while the May 17, 2013 Order specifically referenced the 2010 injury only, the September 5, 2014 Order stated only temporary total disability payments were terminated and that proof-taking shall commence.  This September 5, 2014 Order was sent only to counsel for Zurich and Darby.

          Thus, our review of the record reveals no specific order removing the 2011 injury claim from abeyance.  Yet, by generally referencing “the claim”, the September 5, 2014 Order arguably removed both the 2010 and 2011 injury claims from abeyance.  This was evidently the understanding of the ALJ and counsel for Darby and Zurich, as the Benefit Review Conference order indicates both injury claims proceeded to a final hearing.

          Proof-taking in earnest commenced.  Darby moved for an extension of time, which was not served on XL.  On January 27, 2015, Zurich filed a motion to compel XL to respond to requests for documents, which was served on XL at their Exton, Pennsylvania address. The ALJ granted the motion by Order dated February 24, 2015, which was also served on XL.  Receiving no response, Zurich renewed the motion on March 24, 2015 and April 20, 2015.  Meanwhile the claim was set for a hearing on May 28, 2015.  A copy of this scheduling order was not sent to XL.  However, Darby moved to convert the Benefit Review Conference into a status conference due to XL’s failure to respond.  This motion was served on XL, though it was apparently denied. 

          The final hearing was conducted on May 28, 2015 in conjunction with a Benefit Review Conference.  By Opinion, Award and Order dated July 27, 2015, the ALJ awarded Darby permanent total disability benefits due to the combined effects of the 2010 and 2011 injuries.  Specifically, he found Zurich responsible for a permanent partial disability award for the right elbow based upon a 7% impairment rating and XL responsible for a permanent total disability award for the 2011 left elbow injury.  XL was not served a copy of this Opinion, Order and Award.    

     On September 28, 2015, XL moved to reopen the claim, alleging it was not provided with notice of continuing litigation in this matter.  It also pointed out that it was never notified the claim was removed from abeyance. 

     It appears from the record some confusion ensued as XL attempted to reopen the claim, which Darby and Zurich opposed.  A telephonic conference was conducted on November 13, 2015 to discuss the motion to reopen.  On December 17, 2015, the ALJ issued an Order stating the claim was “submitted on the record” on XL’s motion to reopen.  The Order also granted the parties twenty (20) days from the date of the order to complete proof and ten (10) days thereafter to file briefs.  On February 8, 2016, XL filed a motion to clarify the submission order, stating confusion existed among counsel regarding proof time.  Counsel for XL indicated it had attempted to file a brief, but was instructed by the ALJ’s office staff to wait because an order resetting proof time was forthcoming.

     On February 18, 2016, the ALJ granted the motion to reopen.  He stated he was “persuaded that XL Specialty Insurance was not properly served the Application for Benefits (Form 101), the BRC, or the Final Hearing.”  The parties were granted sixty (60) days to complete proof.  Zurich petitioned for reconsideration of the Order reopening the claim.  Zurich emphasized that the Department of Workers’ Claims had, in fact, served XL with a notice of filing letter after Darby’s Form 101 was submitted. 

     The ALJ granted the petition for reconsideration.  He emphasized that XL, in its response, did not deny it received notice of the filing of Darby’s Form 101.  The ALJ set aside his prior Order reopening the claim and granted XL fifteen (15) days to respond to discovery requests concerning whether it was notified Darby’s claim was submitted.  Ultimately, on November 4, 2016, the ALJ denied the motion to reopen.  He concluded XL was aware a Form 101 was filed, yet it failed to file a responsive Form 111.  He also noted XL failed to produce documents as requested concerning the motion to reopen.  The record before this Board indicates the ALJ’s Order was mailed to counsel for XL at a post office box in Lexington, Kentucky, but it was returned as undeliverable.

     Counsel for XL submitted a position paper regarding the motion to reopen on November 16, 2016, even though the ALJ had ruled on the motion to reopen 12 days earlier.  It contemporaneously filed a notice of address change for counsel, designating an address on Wellington Way in Lexington, Kentucky.  On the same day, XL filed a motion to clarify, indicating new counsel within the same firm had assumed responsibility for the case.  Counsel further noted that Zurich’s discovery requests had been fulfilled, pursuant to the ALJ’s Order on Reconsideration, and requested clarification as to the status of the motion to reopen, which in actuality had already been denied.

     The ALJ did not enter any further orders in this claim.  On December 2, 2016, XL filed a notice of appeal.  On January 18, 2017, this Board issued an order directing XL to show cause why the appeal should not be dismissed for failure to file a timely brief.  The Order was served on counsel at the Wellington Way, Lexington, Kentucky address.

     Counsel for XL timely responded to the show cause order and tendered a brief in this appeal.  Counsel indicated she called the Department of Workers’ Claims on two occasions between December 2, 2016 and January 15, 2017, after filing the notice of appeal, to inquire “as to receipt of the Notice [of Appeal] and whether or not an Order had been issued regarding receipt thereof and scheduling of submission of Brief.”  Counsel states “during both telephone contacts, the Petitioner was told that no Order has as of yet been issued.”  She further states she “was under the impression that an Order setting forth scheduling or Briefs would be issued upon receipt of the Petitioner’s Notice of Appeal.”  For this reason, counsel indicated she had “the impression that the Notice was still pending.” 

     Darby moved to dismiss the appeal, emphasizing she has been prejudiced by the delays in this claim reaching finality.  XL responded, again indicating that she was provided “incorrect information” from the Department of Workers’ Claims.  Acknowledging that the delay in filing a brief was not lengthy, though without valid excuse, we permitted XL to file a late brief. The appeal is now ripe for adjudication.

          Because this appeal concerns the ALJ’s ultimate refusal to reopen the claim, the following findings from the November 4, 2016 Order are especially pertinent:

     This matter comes before the Administrative Law Judge upon the Defendant’s, Novo-Nordisk as insured by XL Specialty Insurance, motion to reopen the Opinion, Order & Award rendered in this matter on July 27, 2015 based on alleged mistake in that it claimed it was not properly notified of the litigation resulting in the award to Ms. Darby.  In a February 11, 2016 Order, this ALJ sustained that motion to reopen.  However, the co-defendant, Novo-Nordisk as insured by Zurich, then filed a petition for reconsideration of that reopening order, pointing out several factual errors in the order on reopening upon which that decision was based.  Accordingly, Zurich’s petition for reconsideration was sustained and the order reopening was set aside and vacated.  Additional discovery was then allowed during which time XL Specialty Insurance was ordered to produce requested documents bearing on the issue of whether it was provided adequate notice of the underlying litigation prior to the award of benefits to plaintiff.  The parties were then directed to file renewed briefs on the issue.  No brief was filed on behalf of XL Specialty Insurance.


     With respect to the merits of XL’s original motion to reopen, it is again noted that XL Specialty Insurance does not deny it received notice at least of the filing of plaintiff’s 101 application for benefits or that it was the entity paying TTD benefits during 2012 and before May 30, 2013 when Zurich began paying TTD benefits.  The record also establishes that no one filed a form 111 notice of claim denial or ever made an appearance on behalf of XL prior to the July, 2015 Opinion, Order and Award.  Even in these most recent proceedings, XL has failed to produce documents as ordered and has not filed a brief in support of its position.


     For all the foregoing reasons, the ALJ is not persuaded that XL Specialty Insurance was not provided adequate notice of plaintiff’s claim such that it was prevented from defending its interests in the litigation.  As such, there is no basis to set aside or reopen plaintiff’s July 27, 2015 award of benefits.  XL’s motion to reopen is therefore denied.  The July 27, 2015 Opinion, Order and Award is therefore not reopened and remains intact and unaltered.  The defendant, XL Specialty Insurance, shall immediately begin payment of the award as previously determined.


          XL now appeals.  It argues the ALJ erred in failing to notify it of the claim’s removal from abeyance, Benefit Review Conference, the Final Hearing and the Opinion, Award and Order.  XL argues this failure to notify not only denied it due process rights, but also mandated reopening under KRS 342.125.

          KRS 342.125 permits the reopening of a claim on the grounds of fraud, newly discovered evidence, mistake and change in disability.  XL claims a mistake was made when it was not served with various documents during the litigation of the claim, and the ALJ erred in denying its motion to reopen.  We note the language of KRS 342.125 is discretionary, “an administrative law judge may reopen and review any award.” A fundamental requirement of due process is the opportunity to be heard in a meaningful time and manner.  Conrad v. Lexington-Fayette Urban County Government, 659 S.W.2d 190 (Ky. 1983).  Further, to satisfy procedural due process, a party must have sufficient notice and opportunity to make a defense.  Somsen v. Sanitation Dist. Of Jefferson County, 303 Ky. 284, 197 S.W.2d 410 (1946).  Addressing the elements of due process in a workers’ compensation claim, the Court of Appeals of Kentucky in Bentley v. Aero Energy, Inc., 903 S.W.2d 912 (Ky. App. 1995), held as follows:

The components of procedural due process in the context of administrative proceedings are well settled and, in this Commonwealth, are outlined by the following language in Kentucky Alcoholic Beverage Control Board v. Jacobs, Ky., 269 S.W.2d 189, 192 (1954):

In order that the requirements of due process of law be satisfied, the litigant must be afforded procedural due process as well as substantive due process. This includes a hearing, the taking and weighing of evidence, if such is offered, a finding of fact based upon consideration of the evidence, the making of an order supported by substantial evidence, and, where the party's constitutional rights are involved, a judicial review of the administrative action. (Citations omitted).


          This case presents a difficult factual situation.  It appears that, after the initial Order placing the claim in abeyance, XL was removed from the ALJ’s service list.  Certainly, this clerical error denied XL’s its right to be notified of the ALJ’s actions during the pendency of the claim.

          However, XL’s insistence that it has been totally excluded from any participation in the litigation of this claim is utterly disingenuous.  It was served with Darby’s Form 101, a scheduling order setting an original Benefit Review Conference date of January 15, 2013, the Order placing the claim in abeyance, discovery requests, motions to compel, and Orders requiring production of documents.  XL did not file a Form 111 accepting or denying the claim.  XL did not respond to any of the motions, orders or requests concerning discovery.  It paid Darby temporary total disability benefits until May 30, 2013, when those benefits were assumed by Zurich.  XL also admits it was aware litigation was pending, because counsel placed a call to the Department of Worker’s Claims to inquire about the status of the case. 

          Due process requires the opportunity to be heard in a meaningful manner, and sufficient notice to exercise this opportunity.  Certainly, the ALJ erred in failing to serve XL with various documents, most importantly, the Order removing the claim from abeyance, the Benefit Review Conference Order, and the Opinion, Award and Order.  However, even in light of these omissions, we are not convinced XL was denied the opportunity to be heard and present a defense.  XL was notified a claim had been filed and made no attempt to file a responsive Form 111, or to enter an appearance prior to the original Benefit Review Conference date (of which it was also notified).  By its own admission, from May 20, 2013, when it ceased making temporary total disability benefit payments, to September 28, 2015, XL made no attempt to inquire as to the status of the claim.  In addition, we cannot ignore the fact that litigation of this claim has been repeatedly delayed by XL’s failure to respond to discovery requests.  Even the resolution of the present appeal has been delayed by XL’s failure to timely participate. 

          We have carefully considered the totality of the circumstances surrounding the litigation of this claim, including the failures of both XL and the ALJ.  We are simply unable to conclude XL has been denied the opportunity to participate in the litigation of Darby’s claim.  Furthermore, though the ALJ erroneously omitted XL from the service list after the claim was removed from abeyance, the record simply does not support the conclusion XL was unaware litigation was proceeding.  It was served with sufficient documents indicating litigation was proceeding, and it failed to avail itself of the opportunity to participate.  As such, we find no error in the ALJ’s refusal to reopen the claim.

          Accordingly, the November 4, 2016 Order rendered by Hon. Grant S. Roark, Administrative Law Judge, is hereby AFFIRMED.   

          ALL CONCUR.





















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