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November 22, 2017 201263966

Commonwealth of Kentucky

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  November 22, 2017

 

 

CLAIM NO. 201263966

 

 

RYAN HOUSTON                                   PETITIONER

 

 

 

VS.        APPEAL FROM HON. JONATHAN WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

GREENUP COUNTY FISCAL COURT

and HON. JONATHAN WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

REVERSING IN PART, VACATING IN PART,

AND REMANDING

                       * * * * * *

 

 

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

 

STIVERS, Member. Ryan Houston (“Houston”) seeks review of the August 7, 2017, Opinion and Order of Hon. Jonathan Weatherby, Administrative Law Judge (“ALJ”), dismissing his claims asserted on reopening. 

          Houston challenges the ALJ’s decision asserting the ALJ erred by finding he failed to give notice as soon as practicable of his claims.  We reverse the ALJ’s decision holding Houston failed to provide notice, vacate the remaining findings of fact and the dismissal of Houston’s claim, and remand.

          The record contains a Form 110 Agreement as to Compensation executed by Houston and Greenup County Fiscal Court (“Greenup County”) approved by Hon. J. Landon Overfield, Administrative Law Judge on November 25, 2014.  The Form 110 reflects Houston was injured on October 31, 2012: “after pulling a car over the driver of car hit claimant with car.”  The body parts affected were listed as: “right ankle sprain, left foot fx, left knee muscle tear.”  The only impairment listed is 6% provided by Dr. David Jenkinson.  Houston settled for 30.71 weeks of temporary total disability (“TTD”) benefits and received weekly permanent partial disability benefits of $25.65 for 425 weeks.  Houston did not waive his right to medical benefits, rehabilitation, and to reopen.

          On May 18, 2016, Houston filed a motion to reopen with his affidavit and medical records attached.  In his affidavit, Houston stated he was injured in the course and scope of his employment as a law enforcement officer with Greenup County and sustained injuries to his knees, low back, and other psychological injuries.  Houston asserted his condition has worsened considerably since the settlement as he has undergone additional surgeries and was declared totally disabled by his treating psychiatrist as a result of the injuries sustained while in the line of duty.  Houston further represented the attached medical records support his claim of a worsening of his condition.  Houston stated he returned to work following the settlement, but his condition worsened and he has been declared 100% disabled as a law enforcement officer.  Houston asserted both his impairment rating and disability have increased since settlement of his claim.  The attached medical records were from Dr. Lisa DeGnore, an orthopedic surgeon, Dr. Mohamed Khodeir, a psychiatrist, and Dr. Michael Best, an orthopedic surgeon.

          In an Order dated July 28, 2016, Hon. Robert Swisher, Chief Administrative Law Judge, concluded Houston set forth a prima facie case for reopening and sustained Houston’s motion to the extent the claim would be assigned to an ALJ.  

          On August 29, 2016, Greenup County filed a Form 111 denying the claim and a Special Answer.  In the Special Answer, it asserted entitlement to a credit for the payment of unemployment benefits, a credit for overpayment of voluntary income benefits, and Houston’s unreasonable failure to submit to or follow competent medical aid or advice. 

          The parties introduced extensive proof regarding Houston’s pre-settlement and post-settlement physical and psychological condition. 

          On November 10, 2016, Greenup County filed a motion to dismiss asserting two grounds. It contended Houston’s claim for an alleged psychiatric condition must be dismissed because he knew about it but did not present it in his original claim.  Further, Greenup County argued the reopening should be dismissed for failure to present objective medical evidence of a causal connection between his complaints and his work-related injury. 

          Houston was deposed on numerous occasions.  During his first deposition of September 21, 2016, Houston testified he last worked the day before he underwent left knee surgery in November 2015.  On that day, he was working for the Greenup County Sheriff’s Department as a school resource police officer at Greenup County High School where he had worked from August to November 2015.  He described the event of October 31, 2012, and his injuries:

Q: Tell me what happened on that date, please.

A: I was driving down the roadway and a truck ran up on my bumper and got within inches of my bumper.

Q: Were you in a police vehicle at the time?

A: I was in a marked unit, yes, ma’am. Upon the vehicle running up on my bumper I had actually --- I had a gentleman in the car with me. He was a constable. I just cleared working a wreck. And I asked him, I said, “Who in the world is that?”

     And he said, “I have no idea.” Well, they backed off.

     I said, “Well they must have seen the sheriff on the bumper of the car.” They didn’t like that. Well, all of a sudden the guy shot over into incoming lanes of traffic and pulled up beside me and starting [sic] smiling.

     And I waved him on and I slowed down but when I slowed down, they slammed the brakes on the truck and tried to hit my cruiser.

     So I immediately hit my blue lights and exited my vehicle with him behind me. I didn’t even  [sic] time to call it out on the radio because I was afraid he was going to hit a family, you know, coming in incoming traffic as reckless as he was driving.

     I got to the back of the car and I yelled “shut the vehicle off,” and he slammed the gas on and he drove directly into me. I was running and trying to get away.

     And he continued to hit me and I was able to [sic] my hands on the hood pushed myself up, and I sacrificed my legs because I knew if my stomach got hit I was going to die.

     He hit me four times down the side of the cruiser and then I hit the mirror and the spotlight on my car and it threw me through the air and I landed, and I could hear him coming behind me and I played dead.

     And when he got right up to me, I rolled over really fast and I covered my head and he swerved at my head and he missed, and I pulled my firearm out and it fell apart in the road. It broke my gun.               

     And he slammed the brakes on and turned the lights off. And by this time the other gentleman had exited the vehicle and was dragging me off the road and I was screaming, “This guy tried to murder me. Shoot him.” And he took off and fled the scene.

Q: The – the perpetrator did?

A: Yes.

Q: Okay.

A: The gentleman in the car radioed for help.

Q: The constable?

A: Yes. He radioed for a med unit, and it gets a little shady at this point because there’s a lot of things about this that I remember and there’s things that I remember very vividly.                        

     I remember when the guy was hitting me, I had my hands on the hood and he was smiling at me and laughing while he was hitting me. And – I’m sorry, this is [sic] bit uncomfortable for me.

Q: That’s okay.

A: And there was a firefighter that was less than a mile down the road that heard the call came in and he jumped in the rescue truck as the truck went by and followed the truck and was able to keep contact with the truck.

Q: The perpetrator?

A: Yes. Until another police officer got in behind him and they got in a high speed pursuit and the perpetrator wrecked out and hit a telephone pole, and they was able to restrain him and take him into custody.

Q: Okay.

A: I was struck approximately four times, and he tried to crush my head.

Q: Do [sic] known what parts of your body were struck?

A: Yeah, both of my legs and my feet, my ankles, my knees, my shins, my quads.

Q: Okay. Any other part of your body struck other than your two – you’ve told me your two lower extremities?

A: Well, my hands and stuff when I hit the road, bust on the road –

Q: Both hands?

A: Yeah, but it didn’t, you know, it didn’t do any major damage to my hands. Just caused them to bleed real bad and left me some scars on them.

Q: Okay. Any other part of your body injured?

A: Ma’am honestly I don’t know. My legs was hurting so bad I – I – you know, that’s where my focus was at.

Q: Well, that’s – and that goes to my next question, and this is a question I ask everybody. Tell me what part or parts of your body that you felt pain in at the time.

A: I felt pain in the entire lower part of my body from about my groin area down. Severe pain.

Q: So there’s no part of your lower extremities that were not in pain?

A: No.

          Houston was taken by ambulance to Our Lady of Bellefonte Hospital where he stayed approximately eight days.  Thereafter, he was treated by a number of physicians for his physical problems.  Houston testified the workers’ compensation carrier recommended all the physicians who treated him.  Following the accident, he experienced sleeping problems, including nightmares and panic attacks.  He was prescribed Ambien for his sleeping problems.  He started seeing Brooke Vass (“Vass”), a nurse practitioner in 2015 for panic attacks and because of sleeping problems.  Vass prescribed medications including Ambien and referred him to Dr. Leia Meenach (“Meenach”), an APRN.  Meenach prescribed medication for post-traumatic stress disorder (“PTSD”), panic attacks, and anxiety.  After Houston began seeing Meenach, the workers’ compensation carrier sent a nurse to accompany him on his visits to her.  Traumatic memories regarding the event regularly surfaced, and his legs continued to hurt.  Houston was unaware he had written a suicide note.  He testified the workers’ compensation nurse and Meenach agreed he needed inpatient care and he was sent to The Brook Hospital in Louisville in March or April 2016.  He stayed for seven or eight days.  Houston then underwent partial inpatient and outpatient therapy for two weeks to a month.  During that same period he began seeing Dr. Khodeir with whom he is still treating.  He underwent surgery on his left knee in November 2015 and on his right knee in December 2015, both performed by Dr. Love.[1]  He also saw Dr. DeGnore who prescribed a left foot brace. 

          Houston was also sent to Dr. Danesh Mazloomdoost for pain management.  Dr. Mazloomdoost referred him to Dr. Brett Scott, a neurosurgeon, for implantation of a permanent spinal cord stimulator.  Dr. Mazloomdoost had previously implanted a trial spinal cord stimulator.   In addition to performing implantation surgery, Dr. Scott also prescribed an AFO brace for his right foot. Both braces are for a dropped foot.  At the time of his deposition, Houston was only seeing Drs. Mazloomdoost and Khodeir. 

          During the pendency of the claim, Houston successfully amended his motion to reopen to include a claim for a work-related dental condition and the resulting treatment allegedly caused by the October 31, 2012, accident.  Greenup County filed a medical fee dispute concerning the compensability of Viagra. 

          The June 7, 2017, Benefit Review Conference (“BRC”) Order and Memorandum reflects the parties stipulated Houston sustained a work-related injury or injuries on October 21, 2012, and the stipulated injuries were: “right ankle sprain, left foot fracture, and left knee muscle tear only.  All others listed below are denied.”  As to Notice, Greenup County stipulated it received due and timely notice of Houston’s injuries with the following proviso: “Yes as to above issues only.”  The contested issues were listed as: “benefits per KRS 342.730; work-relatedness/causation; notice; unpaid or contested medical expenses; injury as defined by the ACT; and exclusion for pre-existing disability/impairment.  Under “Other” was listed: “(at issue) Psychological, Right knee left knee hip foot drop, dental; change or worsening of condition for stipulated injuries, statute of limitations for at issue injuries; failure to follow medical advice; propriety of raising a new issue in reopening. MFD reasonableness necessity and work-relatedness of dental, psychiatric and Viagra.”

          At the hearing, regarding the stipulations and the contested issues, the ALJ stated:

Judge Weatherby: Thank you. Note that just prior to going on the record here today, a benefit review conference was held and the following stipulations were reached: That there is jurisdiction under the Act; that there was an employment relationship at all relevant times; it is stipulated that on October 31st of 2012, plaintiff sustained certain injuries for which a settlement was reached; all other alleged injuries are therefore denied; notice as to the other injuries are likewise denied, the average weekly wage stipulated is $754.70; plaintiff’s date of birth is REDACTED, and he is a high school graduate. On the contested issues, therefore, pertaining to the nonstipulated injuries of psychological claim, right knee, left knee, hip, foot drop, dental injuries, the contested issues are KRS 342.730, work-relatedness and causation, notice, unpaid or contested medical expenses, injury as defined by the Act, and exclusion for preexisting active disability or impairment. In addition to those issues, there is the change or worsening of condition for those injuries; statute of limitations as it pertains to those injuries; failure to follow medical advice as it pertains to the dental injuries; the propriety of raising a new issue for the first time in reopening; and there is a medical fee dispute regarding the reasonableness/necessity and work-relatedness of the psychiatric treatment, dental treatment, and the use of Viagra. Does that adequately summarize the stipulations and issues?

          Only Houston testified at the June 7, 2017, hearing.  He reiterated much of his September 21, 2016, deposition testimony.  Houston testified he settled his claim while working for the Greenup County Sheriff.  He denied receiving a diagnosis of psychiatric problems prior to November 2014 when the ALJ approved the settlement agreement.  After the surgeries on his knees, Houston did not return to work because he was told he had to go back on the road. 

          After providing a limited summary of the medical evidence, the ALJ entered the following findings of fact and conclusion of law:

Benefits Per KRS 342.730/ Work-Relatedness and Causation

Statute of Limitations/Notice/Injury as Defined by the Act

25. The Plaintiff resolved his workers [sic] compensation claim to include injuries of a right ankle sprain, left foot fx, and left knee muscle tear on November 25, 2014. This reopening was thereafter filed on May 18, 2016, including the issues of bilateral knees, back and psychological claims.

26. No proceeding for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof…KRS 342.185.

27. The ALJ finds that the Plaintiff has raised new issues in the context of this reopening that have been waived by the passing of time. The Plaintiff has failed to give notice as soon as practicable for these claims and has not asserted these claims within the allowable statute of limitations period.

28. The ALJ is also unpersuaded by the evidence presented that there is any increase in impairment for the injuries actually listed in the original claim for the injuries suffered on October 31, 2012.         

The ALJ ordered as follows:

1. For the foregoing reasons, it is hereby ordered that the Plaintiff’s claim is hereby DISMISSED.

. . .

          Neither party filed a petition for reconsideration.

          Houston contends on appeal that he is not required to self-diagnose his condition nor is he required to give notice of each category of symptoms as they manifest.  He argues the disabling symptoms for both the physical and emotional injuries worsened after the 2014 settlement.  Houston contends Greenup County’s insurer had notice of all work-related injuries and voluntarily paid for all medical treatment.  Houston further asserts his work-related physical condition has worsened and he developed additional physical impairment and PTSD which are directly related to his work-related physical injuries.  In light of the violent trauma he sustained, Houston posits the subsequent undisputed development of PTSD was foreseeable and likely. 

          Houston also argues the ALJ’s opinion provides no guidance as to how notice may have been lacking.  Rather, the ALJ merely stated there was no notice of these claims within the allowable statute of limitations.  He argues a reopening does not require notice of each new medical diagnosis which develops from a work-related condition.  Houston also asserts the statute of limitations was tolled when he filed his initial claim; therefore, his motion to reopen was timely filed.  Thus, Houston argues the ALJ’s findings that a lack of notice and the statute of limitations bars his claim are erroneous as a matter of law. 

          Concerning Greenup County’s reliance upon Slone v. Jason Coal Co., 902 S.W.2d 820 (Ky. 1995), in its motion to dismiss, Houston argues the facts in the case sub judice are different, as he merely had trouble sleeping and experienced nightmares after the accident for which he was prescribed medications by physicians who were not treating psychiatric conditions.  He asserts he was never diagnosed with a psychiatric condition or impairment and returned to work for almost a year and a half during which he settled his claim based upon an “orthopedic impairment.”  Since a psychiatric impairment was not present prior to the settlement, Houston argues he had no claim at the time of the settlement.  Houston outlines the psychiatric treatment he underwent, most of which occurred after November 25, 2014.  Houston argues the facts compel a finding contrary to that made by the ALJ. 

          KRS 342.185 requires notice of a work-related accident be given to the employer, “as soon as practicable after the happening thereof.”  While notice is mandatory, the Kentucky Court of Appeals has indicated, “the statute should be liberally construed in favor of the employee to effectuate the beneficent purposes of the Compensation Act.” Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 816 (Ky. 1968). Whether notice has been given as “soon as practicable” depends upon the circumstances of the particular case. Id. Notice to an employer of a physical injury carries with it notice of all conditions that may reasonably be anticipated to result from that injury. See Dawkins Lumbar Co v. Hale, 299 S.W. 991 (Ky. 1927). See also Reliance Die Casting v. Freeman, 471 S.W.2d 311 (Ky. 1971). Additionally, the statute does not necessarily require an injured worker to be aware of, and report each injury resulting from an accident, but must report the accident itself. Reliance Die Casting v. Freeman, supra.

          Houston’s failure to immediately report all body parts affected as a result of the accident does not equate to failure to give notice.  The ALJ’s finding that Houston failed to provide notice of “these claims” is erroneous as a matter of law.  The statute does not require notice of claims.  KRS 342.185(1) only requires notice of an accident be given to the employer as soon as practicable.  See Smith v. Cardinal Const. Co., 13 S.W.3d 623 (Ky. 2000).  Moreover, a worker is not obligated to give notice of a latent harm until the worker becomes aware of it.  Turner, Day and Woolworth Handle Co. v. Morris, 267 Ky. 217, 101 S.W.2d 921 (1937).  Likewise, if an employer receives notice of a work-related accident and what appears to be minor harm, it is excusable for the worker to fail to give notice of another more serious harm of which the worker is unaware.  Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866 (Ky. 1962).  This is especially true in the case sub judice as Greenup County and other law enforcement agencies were aware of Houston’s accident and his injuries on the date they occurred.  Keith Cooper, Greenup County Sheriff, acknowledged this during his April 3, 2017, deposition.  Sheriff Cooper unequivocally testified he was notified of the assault on Houston by the perpetrator but did not go to the accident scene.  Consequently, there is no question due and timely notice was provided to Greenup County, and notice is no longer an issue. 

          In summary, if a worker gives notice of a work-related accident, and a harm resulting from the accident does not become apparent until sometime thereafter, further notice is not required until the harm develops into a compensable state.  Reliance Diecasting Co. v. Freeman, supra. Also, notice given to an employer by an employee of a work-related physical injury carries with it notice of all conditions which may reasonably be anticipated to result from the injury.  Dawkins Lumber Co. v. Hale, supra. Thus, the ALJ erred in finding notice had not been given. 

          We are unsure whether the ALJ dismissed Houston’s claim solely on the basis of what he perceived to be Houston’s failure to give notice, as he also stated Houston had not asserted “these claims” within the allowable statute of limitations.  In stating Houston did not assert these claims within the allowable statute of limitations period, the ALJ did not identify the claims to which he was referring nor the evidentiary basis for drawing this conclusion.  There are no findings of fact providing the evidence upon which the ALJ relied in reaching that conclusion.   

          Greenup County takes the position that Houston was required to give notice of all injuries and assert them within the allowable statute of limitations period.  Although the ALJ did not specifically so state, he may have relied upon the holding in Slone v. Jason Coal Co., supra, which does not address the failure to provide notice.  Rather, it relates to the timeliness of the claim asserted on reopening.   

          In Slone v. Jason Coal Co., supra, the claimant, Tracy Slone, filed a workers’ compensation claim and for Social Security benefits in July 1987.  In the Social Security claim, Slone submitted psychiatric evaluation evidence and was granted disability benefits.  However, in the workers’ compensation claim he did not provide any psychological evidence.  He received a workers’ compensation award based upon medical evidence which consisted solely of opinions from orthopedic doctors and neurosurgeons.  The ALJ determined half of the alleged psychological disability was the result of pre-existing active conditions and half due to the injury and its arousal factor.  The Board reversed and remanded with directions to deny the motion to reopen because the claimant failed to produce evidence of a psychological condition in the original claim.  The Kentucky Court of Appeals affirmed, as did the Kentucky Supreme Court, stating:

The mental condition could not be considered “newly discovered evidence” because Slone knew of this condition in 1987. His claim that the record does not show that counsel in the original proceeding understood that he had a psychiatric condition which was work related is unconvincing. Obviously counsel knew of the condition because it was presented in the social security claim process. His failure to determine whether the psychiatric condition was work related is simply a lack of due diligence. It is not “newly discovered evidence” that can be used to support a motion to reopen.

Fischer Packing Co. v. Lanham, Ky., 804 S.W.2d 4 (1991), provides that a psychiatric condition may be the basis for a reopening where it is the result of the work injury and becomes manifest after the original award. This may be the type of reopening based on a change of occupational disability provided in KRS 342.125. Slone's mental condition became manifest before or during the initial award and is not new or a change. This is not the situation contemplated in Lanham, supra. The fact that he is now experiencing a worsening of the impairment does not entitle him to pursue this matter as a reopening.

Slone having failed to present his psychiatric condition during the original claim cannot now contend that his condition is new in the degree of severity. In order to proceed with a “new in degree of severity” argument, the condition must have been the basis of the original award. Lanham.

This Court recognizes that Woodbridge INOAC v. Downs, Ky. App., 864 S.W.2d 306 (1993), held that claimants may present claims resulting from the same injury one at a time. It may have been possible for Slone to file a new claim for his psychiatric condition but he failed to do so within two years of his injury and even a new claim is now barred by the statute of limitations. KRS 342.185. In any event, either by means of a new claim or a motion to reopen, Slone would be prevented from presenting psychiatric evidence at this time because it is more than two years after the date of the original injury and it was not raised in the initial complaint although it was known to him by the use of ordinary prudence and diligence.

Id. at 822.

          Here, Houston contended that multiple psychological problems manifested and became disabling after he settled his claim.  Thus, on remand, the ALJ must enter findings of fact addressing whether Houston had a known psychiatric claim at the time the claim was settled in November 2014.

          Finally, in the last paragraph of his findings of fact and conclusions of law, the ALJ stated he was unpersuaded by the evidence presented that there was increase in impairment for the injuries listed in the original claim.  However, the ALJ did not cite to the evidence upon which he relied in making that statement, nor did he identify “the injuries actually listed in the original claims.”  Voluminous medical evidence was introduced including testimony that after the settlement in November of 2014, Houston underwent surgery on both knees, implantation of a spinal cord stimulator, and was prescribed braces for both feet.

          Further, the compensability of dental treatment and Viagra were listed as contested issues and never addressed by the ALJ.  Thus, on remand, the ALJ must identify the injuries he considered to be a part of the original claim and resolve Houston’s entitlement to certain dental treatment and the use of Viagra. 

          After identifying the physical injuries encompassed by the November 2014 settlement the  ALJ must determine whether there was a worsening of impairment due to a condition caused by the injuries since the date of the award or order.  KRS 342.125(1)(b). 

          In addition, on remand the ALJ must determine whether Houston was unaware of any physical or psychological conditions at the time of settlement which are causally connected to the October 31, 2012, work injury.  As previously pointed out, Houston is not required to self-diagnose his physical and psychological conditions.  Further, any condition which is directly attributable to the October 31, 2012, injury of which Houston was unaware at the time he was injured and which manifested after settlement may be compensable either in the form of temporary or permanent income and medical benefits. 

          We are cognizant Houston failed to file a petition for reconsideration.  Pursuant to KRS 342.285, the absence of a petition for reconsideration means the ALJ's order "shall be conclusive and binding as to all questions of fact," as long as substantial evidence exists in the record in support of the ALJ's conclusion.  As the Supreme Court of Kentucky instructed in Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985), if the ALJ's conclusions are supported by substantial evidence in the record, even a "failure to make findings of an essential fact" cannot be reversed and remanded to the ALJ unless that failure was first brought to the attention of the ALJ.  Id. at 338.  Consequently, a decision resolving purely factual questions cannot be reversed if substantial evidence exists in the record in support of the ultimate conclusion.  However, a determination of whether notice was timely-given is a mixed question of law and fact.  Harry M. Stevens Co. v. Workmen’s Compensation Board, 553 S.W.2d 852 (Ky. App. 1977).  As an appellate tribunal, on questions of law, or mixed questions of law and fact such as in the case sub judice, this Board’s standard of review is de novoSee Bowerman v. Black Equipment Co., 297 S.W.3d 858 (Ky. App. 2009).  “When considering questions of law, or mixed questions of law and fact, the reviewing court has greater latitude to determine whether the findings below were sustained by evidence of probative value.” Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116 (Ky. 1991).       Thus, the failure to file a petition for reconsideration is not fatal to Houston’s appeal as there is no dispute Greenup County had notice of the injury. 

          We emphasize the ALJ must provide a sufficient basis to support his determination.  Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 1991).  Parties are entitled to findings sufficient to inform them of the basis for the ALJ’s decision to allow for meaningful review.  Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982).  While an ALJ is not required to engage in a detailed discussion of the facts or set forth the minute details of his reasoning in reaching a particular result, he is required to adequately set forth the basic facts upon which the ultimate conclusion was drawn so the parties are reasonably apprised of the basis of the decision.  Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973). Here, the ALJ failed to provide findings of fact citing to the evidence upon which he relied in order to allow meaningful review by this Board.  Therefore, the findings of fact other than those relating to the issue of notice and the dismissal of Houston’s claim on reopening will be vacated.

          Accordingly, the finding Houston failed to give notice of his claims and the dismissal of his claim on reopening for that reason are REVERSED.  The remaining findings of fact and conclusions of law as well as the order contained within the August 7, 2017, Opinion and Order dismissing Houston’s claim on reopening are VACATED.  This claim is REMANDED to the ALJ for entry of a decision resolving the issues identified in the June 7, 2017, BRC Order and at the hearing in accordance with the views expressed herein. 

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON STUART ALEXANDER

2010 EDGELAND AVE

LOUISVILLE KY 40204

 

 

COUNSEL FOR RESPONDENT:

HON MARCEL SMITH

300 E MAIN ST STE 400

LEXINGTON KY 40507

ADMINISTRATIVE LAW JUDGE:

HON JONATHAN WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] We are unable to determine Dr. Love’s first name.