Workers’
Compensation Board
OPINION ENTERED: October 26,
2018
CLAIM
NO. 199771438
PORTER
SLAUGHTER PETITIONER
VS. APPEAL FROM HON. DOUGLAS W. GOTT,
CHIEF
ADMINISTRATIVE LAW JUDGE
TUBE
TURNS and
HON.
DOUGLAS W. GOTT,
CHIEF
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Porter
Slaughter (“Slaughter”) appeals from the Order issued August 14, 2018 by Hon. Douglas
W. Gott, Chief Administrative Law Judge (“CALJ”). The CALJ overruled Slaughter’s Motion to
Reopen, which he filed on July 10, 2018.
On appeal, Slaughter
argues the ALJ erred in denying his Motion to Reopen. He argues he is permitted to reopen the claim
pursuant to the holding in Hall v. Hospitality Resources, 276 S.W.3d 775
(Ky. 2008). We disagree,
and affirm. Slaughter also
notified the parties he is challenging the constitutionality of KRS 342.125 as
amended on July 14, 2018. Because this
Board lacks the jurisdiction to rule on constitutional issues, as noted in Commonwealth
v. DLX, Inc., 42 S.W.3d 624 (Ky. 2001), on this issue, we must also affirm.
As noted by Hon. Christina
Hajjar, Administrative Law Judge (“ALJ Hajjar”), in the Opinion, Order and Award issued
on April 30, 2018, Slaughter filed a Form 101 on August 29, 1997 indicating he
injured his right shoulder on March 27, 1996 requiring surgery. He also alleged that on April 8, 1997, a “bar
struck his left shoulder, chest and neck,” however, he did not specifically
allege any injuries to those body parts.
He subsequently settled that claim.
This is reflected in a Form 110 Settlement Agreement approved by Hon.
Thomas Lewis, Arbitrator, on November 27, 1997.
The agreement reflects only that the nature of the injury was to the
right shoulder.
Slaughter filed an
additional Form 101 on December 2, 1997, alleging a left shoulder injury. This claim was dismissed by Hon. J. Landon
Overfield, Administrative Law Judge (Acting Arbitrator) (“ALJ Overfield”), who
determined the filing was for a previously settled claim. Slaughter appealed the decision, and Hon.
Donna H. Terry, Chief Administrative Law Judge, dismissed the claim in an order
issued May 18, 1999, on the same grounds as outlined by ALJ Overfield.
On December 21, 2001,
Slaughter filed a motion to reopen this claim, along with Claim No.
1996-80121. The claim was assigned to
Hon. James L. Kerr, Administrative Law Judge (“ALJ Kerr”), who entered an order
dismissing the reopening on September 9, 2002.
The claim was appealed to this Board, which affirmed ALJ Kerr’s decision
on January 22, 2003.
On November 2, 2016,
Slaughter again filed a motion to reopen to assert a medical dispute. Attached to that motion was a copy of the 1997
Form 110 settlement agreement. On April
30, 2018, ALJ Hajjar issued an Opinion, Order and Award finding a September 30,
2016 left shoulder surgery compensable, and awarded
temporary total disability (“TTD”) benefits from November 2, 2016 through March
30, 2017. Tube Turns did not appeal from
that decision.
Slaughter subsequently
filed another motion to reopen on July 10, 2018, alleging he had sustained a
“change of disability shown by objective medical evidence”. On August 14, 2018, the CALJ entered an order
denying the motion to reopen. The CALJ
specifically found as follows:
Pending is a motion to reopen from Plaintiff Porter Slaughter, who
alleges a change of disability following a recently approved left shoulder
surgery.
In the original litigation of this case, Slaughter’s claims for right
shoulder (3/27/96) and left shoulder (4/18/97) injuries were consolidated. A
Form 110 settlement agreement was approved on November 24, 1997, with income
benefits being paid for the right shoulder. (The Form 110 specified the “right
shoulder” injury but referenced the left shoulder injury date.)
Slaughter filed a motion to reopen the left shoulder injury claim in
1999, but an ALJ dismissed it on grounds that it was filed more than two years
after the prior settlement agreement, in violation of the limitations period in
KRS 342.125(3) at the time (1996 amendments).
Slaughter filed another motion to reopen in 2001, alleging an increase
in occupational disability since the date of settlement. An ALJ dismissed that
reopening because it was filed more than four years after the prior settlement
agreement, in violation of the limitations period in KRS 342.125(3) at the time
(2000 amendments).
Slaughter filed another motion to reopen in 2016, this one a medical
dispute over left shoulder surgery. An ALJ found the surgery compensable and
awarded TTD in an Opinion issued April 30, 2018.
The pending motion to reopen seeks additional income benefits from
increased impairment from the recently performed left shoulder surgery. The
Defendant objects on grounds that the motion was filed more than four years
after the original settlement agreement. KRS 342.125(3). That objection is
contrary to Hall v. Hospitality Services, 276 S.W.3d 775 (Ky. 2008), which
ruled that a subsequent order granting or denying benefits restarts the
four-year limitations period; the 2018 Opinion is an order granting additional
benefits.
Neither party references HB 2, which amended KRS 342.125(3) yet again
(although there may have been intentionality to Slaughter’s filing of the
pending motion four days before the new law took effect on July 14, 2018). The new version of KRS 342.125(3) states that
“no claim shall be reopened more than four (4) years following the date of the
original award or original order granting or denying benefits… Orders granting
or denying benefits that are entered
subsequent to an original final award or order granting or denying benefits
shall not be considered to be an original order granting or denying benefits…”
HB 2 further extinguishes a claim that existed at the time the statute
was passed. Section 20(2) states the revision to the reopening statute is
remedial, “and shall apply to all claims irrespective of the date of injury…”
The remedial application of the change to the reopening statute must be
addressed by the appellate courts. An administrative law judge has no authority
to rule on a statute’s constitutionality or otherwise set aside its express
terms. Slaughter’s motion to reopen is overruled because it was not filed
within four years of the original settlement agreement in 1997, as required by
the recently adopted amendment to KRS 342.125(3).
We initially note the procedure for reopening
a workers’ compensation claim pursuant to KRS 342.125 is a two-step process. Colwell
v. Dresser Instrument Div., 217 S.W.3d 213, 216 (Ky. 2006). The first step is the prima facie motion, which requires the
moving party to provide sufficient information to
demonstrate a substantial possibility of success in the event evidence is
permitted to be taken. Stambaugh v. Cedar Creek Mining, 488 S.W.2d 681
(Ky. 1972). “Prima facie evidence” is evidence which
“if unrebutted or unexplained is sufficient to maintain the proposition,
and warrant the conclusion [in] support [of] which it has been
introduced ... but it does not shift the general burden ....” Prudential
Ins. Co. v. Tuggle’s Adm’r., 254 Ky. 814, 72 S.W.2d 440, 443 (1934).
The burden during the initial step is on the
moving party and requires establishment of grounds for which the reopening is
sought. Jude v. Cubbage, 251
S.W.2d 584 (Ky. 1952); W.E. Caldwell Co. v. Borders, 301 Ky. 843, 193
S.W.2d 453 (Ky. 1946). It is only after
the moving party prevails in making a prima facie showing as to all essential
elements of the grounds alleged for reopening that the adverse party is put to
the expense of further litigation. Big Elk Creek Coal Co. v. Miller, 47
S.W.3d 330 (Ky. 2001). When an ALJ
determines the movant failed to present a prima facie case for reopening, the
decision is reviewed for an abuse of discretion. Harold Turner v. Bluegrass Tire Co.,
331 S.W.3d 605, 610 (Ky. 2010). An abuse
of discretion occurs when the decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Id.; Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
In this instance, the CALJ determined Slaughter
was precluded from reopening his claim to assert a worsening of his condition
due to the changes in KRS 342.125(3), reflected in House Bill 2, signed by the
Governor on March 30, 2018, and effective July 14, 2018. Those changes reflect, as noted by the CALJ
above, with limited exceptions, as follows:
… no claim shall be reopened more than four (4) four
years following the date of the original award or original order granting or
denying benefits, when such an award or order becomes final and nonappealable,
and no party may file a motion to reopen within one (1) year of any previous
motion to reopen by the same party.
Orders granting or denying benefits that are entered subsequent to an
original final award or order granting or denying benefits shall not be considered to be an original order granting or denying
benefits under this subsection and shall not extend the time to reopen a claim
beyond four (4) years following the date of the final, nonappealable original
award or original order.
Section 20(2) of House Bill 2, as noted by
the CALJ, reflects that the changes in KRS 342.125(3):
… are remedial and shall apply to all claims
irrespective of the date of injury or last exposure, provided that, as applied
to any fully and finally adjudicated claim the amount of indemnity ordered or
awarded shall not be reduced and the duration of medical benefits shall not be
limited in any way.
We note this language is not specifically
contained in the body of the statute.
However, it is contained in the Legislative Research Commission Note in
the official version of the statute.
Based upon the clear language contained in
the changes to KRS 342.125(3), Slaughter is precluded from reopening his
claim. Therefore, we find the CALJ did
not abuse his discretion in overruling Slaughter’s motion to reopen.
We also acknowledge Slaughter has challenged
the constitutionality of the changes to KRS 342.125. However, as an administrative tribunal, this
Board has no jurisdiction to determine the constitutionality of a statute enacted by the
Kentucky General Assembly. Blue
Diamond Coal Co. v. Cornett, 189 S.W.2d 963 (Ky. 1945). See also Vision Mining, Inc. v.
Gardner, 364 S.W.3d 455 (Ky. 2011); Abel Verdon Const. v. Rivera,
348 S.W.3d 749, 752 (Ky. 2011). Because
this Board has no authority or jurisdiction to reverse rulings of the Kentucky
courts, we can render no determination on this issue, and therefore we are
compelled to affirm.
Accordingly, the August
14, 2018 order issued by Hon. Douglas W. Gott, Chief Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
WAYNE C DAUB
600
WEST MAIN ST, STE 300
LOUISVILLE,
KY 40202
COUNSEL FOR RESPONDENT: LMS
HON
GREGORY L LITTLE
1510
NEWTOWN PIKE, STE 108
LEXINGTON,
KY 40511
CHIEF ADMINISTRATIVE LAW JUDGE: LMS
HON
DOUGLAS W GOTT
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601