BETTY MONTGOMERY V. KOCH FILTER COMPANY; HON. SHELIA LOWTHER, ADMINISTRATIVE LAW JUDGE; SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED: June 9, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002697-WC
BETTY MONTGOMERY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-90-15903
KOCH FILTER COMPANY;
HON. SHELIA LOWTHER,
ADMINISTRATIVE LAW JUDGE;
SPECIAL FUND; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND MCANULTY, JUDGES.
GUIDUGLI, JUDGE.
Betty J. Montgomery (Montgomery) appeals from
an opinion of the Worker’s Compensation Board (the Board) entered
October 8, 1999, affirming an opinion and order entered by the
Administrative Law Judge on June 22, 1990, which dismissed her
motion to reopen pursuant to KRS 342.125.
We reverse and remand.
On March 26, 1990, Montgomery sustained a back injury
in the course of her employment with Koch Filter Company (Koch).
In an opinion and award entered October 7, 1991, Montgomery was
awarded benefits based on a 25% occupational disability rating.
Liability for benefits was apportioned equally between Koch and
the Special Fund.
On February 18, 1998, Montgomery filed a motion to
reopen the 1990 claim (the first motion) pursuant to KRS 342.125.
Attached to the motion was an affidavit from Montgomery alleging
that her condition had worsened and that she was unable to do any
work, thus warranting reopening under KRS 342.125.
Also attached
to the motion was a letter from Dr. Tinsley Stewart (Dr. Stewart)
to Montgomery’s attorney dated March 25, 1997.
In the letter,
Dr. Stewart indicated that Montgomery’s injuries were permanent
and that she “would have a 10% disability based on Table 72 plus
another 10% based upon the principals outline in Chapter 15
regarding her chronic pain syndrome.”
Although Dr. Stewart
listed restrictions on Montgomery’s activities, he also stated
that “she should be able to perform some type of gainful
employment if it were not physical, such as lifting, carrying,
pushing, or pulling.”
In a second letter dated December 2, 1997,
Dr. Stewart stated that Montgomery was disabled and “physically
and mentally incapable of doing any type of gainful
employment. . . . Betty is undergoing severe trauma in her life
with the neurologic deterioration of her companion and her
physical disability.”
Koch contested Montgomery’s first motion,
arguing that she failed to establish a prima facie case as to her
entitlement to reopening.
On April 13, 1998, the arbitrator assigned to hear
Montgomery’s claim entered an order denying her first motion.
In
so ordering, the arbitrator found that Montgomery’s motion “fails
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to establish a prima facie case for worsening of condition [or]
increase in occupational disability[.]”
On July 15, 1998, Montgomery filed her second motion to
reopen (the second motion).
Montgomery’s motion to reopen and
affidavit in support thereof were identical to the first motion
and affidavit, with the exception that no medical proof was
attached.1
Koch once again contested the motion to reopen, this
time arguing that pursuant to KRS 342.125(3), as amended
effective December 12, 1996,
she was “precluded from filing a
Motion to Re-Open within two years of February, 1998.”
Koch
further contended that although Montgomery’s injury occurred in
1991, the 1996 amendments to the statute applied retroactively.
On August 25, 1998, the arbitrator entered an order denying
Montgomery’s second motion pursuant to KRS 342.125(3).
Undaunted, Montgomery filed a third motion to reopen on
January 19, 1999 (the third motion).
Montgomery’s motion and
affidavit were identical to the second motion, with the exception
that this motion was directed to the Chief ALJ (the CALJ).
Koch
once again contested Montgomery’s motion, this time on grounds of
KRS 342.125(3) and that “the claimant may not succeed in
subsequent motions to reopen based on the same facts alleged in a
former motion to reopen.”
Koch also alleged that Montgomery’s
motion was barred by the doctrine of res judicata.
On March 4,
1999, the arbitrator granted Montgomery’s motion to reopen,
1
Although Montgomery’s attorney stated in his affidavit
attached to the second motion that he was attaching medical
records “setting out the medical condition of the Plaintiff,” no
medical records appear in the record on appeal in regard to the
second motion.
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finding that she had set forth evidence of a prima facie case for
reopening pursuant to KRS 342.125.2
Montgomery’s motion to
reopen was transferred directly to an ALJ by order entered April
1, 1999.
On April 5, 1999, Koch filed a request for de novo
review of the arbitrator’s March 1999 order by an ALJ.
The
parties briefed the issue, and on June 22, 1999, the CALJ entered
an order overruling the arbitrator’s March 1999 order and
dismissing Montgomery’s motion to reopen.
Although the CALJ
found that Montgomery succeeded in establishing a prima facie
case for reopening pursuant to KRS 342.125, she went on to state:
However, [Koch] argues that regardless of the
merits of the motion for reopening, it is
time barred. KRS 342.125, as amended
effective December 12, 1996, states at
subsection 3 that except for reopening solely
for the determination of the compensability
of medical expenses, fraud, or conforming the
award as set forth in KRS 342.730(1)(c), or
for reducing a permanent total disability
award when an employee returns to work, no
claim may be reopened more than four years
following the date of the original award or
within two years of such award. Furthermore,
no party may file a motion to reopen within
two years of any pervious motion to reopen by
the same party. Ms. Montgomery has moved to
reopen her claim on three occasions between
February 17, 1998 and January 14, 1999.
While she was unsuccessful on the two earlier
attempts, the statute does not indicate that
the motion must have been sustained, in order
to prohibit a similar pleading during the
next two years. Rather, it merely states
that “no party may file a motion to reopen
2
The arbitrator’s notation that Dr. Stewart’s records were
attached to Montgomery’s third motion is not supported by the
record on appeal. Likewise, the CALJ’s later statement that Dr.
Stewart’s records were attached to Montgomery’s second motion is
also not supported by the record on appeal.
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within two years of any previous motion to
reopen by the same party.”
Subsection 8 of KRS 342.125 indicates that
the time limitations in that section shall
apply to all claims irrespective of when they
occurred. However, claims which were decided
prior to December 12, 1996 may be reopened
within four years of the award or order, or
within four years after December 12, 1996,
whichever is later. Furthermore, KRS
342.0015 declares this provision to be
remedial. Remedial statutes are to be
applied retroactively. Peabody Coal Company
v. Gossett, 819 SW2d 33 (1991). [emphasis in
original]
Montgomery appealed to the Board, which affirmed the
CALJ’s opinion and order.
In addressing Montgomery’s claim that
KRS 342.125(3) is substantive in that it deprives her of a vested
right and thus is not subject to retroactive application, the
Board held:
In her brief before this Board, Montgomery
recognizes the recent unpublished Court of
Appeals [decision] of . . . Reedy Coal Co. v.
Dannie Meade, (98-CA-000888-WC). The Court
held . . . that merely establishing a
limitation period for reopening a claim does
not deprive an employee of a vested right or
status even when the previous award was
rendered prior to December 12, 1996.
Montgomery urges that the rationale [in
Reedy] is incorrect. She claims, in fact,
the claimant does have a vested right.
The Board, in its decision in . . . [Reedy]
. . . essentially agreed with the position of
Montgomery. However, we were reversed by the
Court of Appeals in [that] decision. While
we recognize that the Court of Appeals chose
not to publish their [sic] decision, we
further note that the [Reedy] case now has
been appealed to the Kentucky Supreme Court
and we believe that until there is a
published case on a new issue, it is the
obligation of this Board to follow the
decision and rationale of the Courts as shown
in their unpublished opinions. Therefore, we
agree with the CALJ that KRS 342.125(3) bars
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consecutive reopenings within two years of
each other.
This appeal followed.
Montgomery contends on appeal that “KRS 342.125(3) is
substantive as opposed to procedural in that is potentially
deprives the appellant of a vested right.”
Fortunately for
Montgomery, after her appeal was perfected and briefed before
this Court, the Kentucky Supreme Court entered its decision in
Meade v. Reedy Coal Company, Ky.,
____ S.W.3d ____ (2000), in
which it held that the two year provisions of KRS 342.125(3) are
not to be applied retroactively.
In so ruling, the Court stated:
Under the law in effect on the date of injury
and on the date of claimant’s award, a
reopening was permitted “at any time” upon
proof of one of the permissible grounds. As
noted by the Board, parties who settled
claims prior to December 12, 1996, and ALJs
who decided claims before that date, had no
opportunity to anticipate that a two-year
waiting period might be imposed on the
ability to reopen the resulting award and to
provide accordingly. Keeping in mind that
even remedial statutes should be given
retroactive effect only to the extent that
the intent of the legislature in that regard
is clear, we are convinced that only the
four-year limitation which is explicitly
stated in KRS 342.125(8) should be applied
retroactively to claims which arose and were
decided prior to December 12, 1996.
We conclude, therefore, that the exception to
reopening established in KRS 342.125(1) and
(3) permit the reopening of any claim, at any
time upon proof of the requisite facts. The
two-year waiting periods and the four-year
limitation contained in KRS 342.125(3) govern
the reopening of claims in which an award is
entered on or after December 12, 1996. The
four year limitation contained in KRS
342.125(8) governs the reopening of claims
decided prior to December 12, 1996.
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Meade, ____ S.W.3d at ____.
Thus, based on Meade, the Board and
the CALJ erred in deciding that Montgomery’s motion to reopen is
precluded by KRS 342.125(3).
Koch argues that even if Montgomery’s motion to reopen
is not precluded by KRS 342.125, it was error for the arbitrator
to grant her third motion because the grounds contained therein
were identical to the second motion.
We agree with Koch that “a
claimant may not succeed in a second motion to reopen based on
the same facts alleged in support of a former motion to reopen.”
Ratliff v. Harris Bros. Const. Co., Ky., 441 S.W.2d 127, 128
(1969).
However, we find that Ratliff does not apply here
because Montgomery’s second motion was erroneously dismissed
under KRS 342.125(3) as opposed to being decided on the merits.
Had Montgomery’s second motion been decided on the merits, or had
her third motion been identical to the first, Koch’s argument may
have had merit, but neither situation fits the case at hand.
As we have decided that Montgomery is entitled to have
her motion to reopen decided on the merits, we need not address
the other issues raised in her brief on appeal.
Having considered the parties’ arguments on appeal, the
opinion of the Board is reversed and this matter is remanded to
the ALJ with instructions to reinstate Montgomery’s third motion
and allow it to proceed on the merits.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, KOCH
FILTER CORPORATION:
Wayne C. Daub
Louisville, KY
Carla Foreman Dallas
Louisville, KY
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BRIEF FOR APPELLEE, SPECIAL
FUND:
David R. Allen
Frankfort, KY
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