KATHY SMITH v. WAL-MART STORE, INC.; WORKERS' COMPENSATION BOARD and HON. THOMAS DAVIS, ADMINISTRATIVE LAW JUDGE
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RENDERED: JULY 21, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-002530-WC
KATHY SMITH
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-94773
WAL-MART STORE, INC.;
WORKERS’ COMPENSATION BOARD and
HON. THOMAS DAVIS, ADMINISTRATIVE
LAW JUDGE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON,1 SENIOR JUDGE.
EMBERTON, SENIOR JUDGE:
In December 2003, Kathy Smith filed an
application for adjustment of claim (Form 101) alleging that on
October 4, 2002, she sustained a work-related injury while in
the employ of Wal-Mart.
and Order” was issued.
On October 15, 2004, an “Opinion, Award
No award was made for a permanent
impairment; Smith was, however, awarded a period of temporary
total disability benefits and medical benefits.
taken.
1
No appeal was
In March 2005, Kathy filed a motion to reopen the claim
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
alleging a change of condition.
She appeals the denial of that
motion and reconsideration orders rendered by the administrative
law judge.
The ALJ who considered Kathy’s initial claim denied
her permanent disability benefits because there was no evidence
submitted that she suffered any permanent impairment.
On
December 15, 2004, however, she filed a motion pursuant to CR2
60.02 and tendered a Form 107 completed by Dr. Greg Rennirt.
After Wal-Mart objected to Smith’s motion on the basis that CR
60.02 relief is unavailable in a workers’ compensation
proceeding, the motion was denied on February 3, 2005.
Smith
did not appeal.
Smith filed a motion to reopen alleging that since the
2004 award, she suffered a change in her physical condition and
is now permanently disabled.
In support of her motion she
tendered the same Form 107 as she did in December 2004.
Over
Wal-Mart’s objection, on April 28, 2005, her motion for
reopening was assigned to an ALJ for further adjudication.
On May 6, 2005, Wal-Mart filed a petition for
reconsideration and, on June 2, 2005, the ALJ assigned to the
claim granted Wal-Mart’s petition and denied the motion to
reopen.
2
Kentucky Rules of Civil Procedure.
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Smith filed a petition for reconsideration of the
order granting Wal-Mart’s petition arguing that the regulations
do not allow for a petition for reconsideration on a motion to
reopen and further that, because the reopening had been assigned
to an ALJ for adjudication, she had presented a prima facie
case; she argues, therefore, that the ALJ did not have authority
to grant Wal-Mart’s petition.
Wal-Mart filed a written response
arguing that reconsideration of the order was permitted pursuant
to KRS 342.281 and that Smith failed to submit evidence of a
change of impairment.
Before the ALJ ruled on Smith’s petition, she filed a
notice of appeal appealing from the orders of April 28, 2005,
and June 2, 2005.
On June 27, 2005, the ALJ reaffirmed the June
order but suggested that a response to Wal-Mart’s petition would
be considered.
Smith again filed a petition for
reconsideration, this time of the order of June 27, 2005.
petition was not ruled upon.
That
Considering Smith’s pending
appeal, the Board denied her request to remand the case to
permit the ALJ to consider the pending petition and the case was
set for briefing.
Smith then filed a second notice of appeal to
the Board appealing the orders of April 28, June 2, and June 27.
Following the submission of briefs, the Board affirmed
the ALJ.
It concluded that the KRS 342.125(1)(d) requires a
prima facie showing of a change of impairment and that the Form
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107 submitted did not address whether there had been such a
change.
The Board further found that the ALJ could properly
reconsider the order assigning the case to an ALJ.
The order,
the Board noted, was merely interlocutory and, therefore,
subject to reconsideration by the ALJ.
The findings of an ALJ will be reversed only if the
evidence is so overwhelming that a different decision is
compelled.3
Our review of the Board is likewise limited and its
decision will be upheld unless it has misinterpreted or
disregarded controlling law.4
A reopening of a workers’ compensation claim is
governed by KRS 342.125 which, after the 1996 amendments,
requires that the movant offer prima facie evidence of one of
the grounds listed in KRS 342.125(1).5
One of those grounds is a
“change of disability as shown by objective medical evidence of
a worsening or improvement of condition caused by the injury
since the date of the award or order.”6
It is a procedural
device for invoking the jurisdiction of the Department of
Workers’ Claims.
As recently stated by our Supreme Court, the
3
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984).
4
Daniel v. Armco Steel Company, L.P., 913 S.W.2d 797, 798 (Ky.App. 1995).
5
Dingo Coal Co. Inc. v. Tolliver, 129 S.W.3d 367 (Ky. 2004).
6
KRS 342.125(1)(d).
-4-
analysis of a reopening claim requires a comparison of
impairment measured at two points in time.7
We agree with the Board that Smith failed to submit
proof of a change of impairment.
Although the Form 107
submitted assigned a three percent impairment rating, this is
the same Form 107 submitted in December 2004.
And Dr. Rennirt’s
office notes reflect that as early as June 30, 2004, he was
willing to provide an impairment rating but that he received no
request for a Form 107 or other impairment rating from Smith’s
counsel.
Thus, the Form 107 merely demonstrates that she had a
3% impairment in 2004 but reveals nothing in regard to the
crucial question of whether since that time she has had a change
in impairment.
Whether due to her own fault or lack of response
from Dr. Rinnert, it is clear that this same information was
available in 2004 and she is now improperly attempting to submit
the Form 107 pursuant to a motion to reopen.
The Form 107 is
totally insufficient to establish a prima facie case for
reopening.
We agree with the Board that the order ruling on the
motion to reopen and assigning the claim for further
adjudication is an interlocutory order.
The order did not
determine whether Smith was entitled to an increased award and
7
Hodges v. Sager Corp., 182 S.W.3d 497 (Ky. 2005).
-5-
did not automatically entitle her to benefits.8
It was merely a
preliminary finding that there was the existence of a
substantial possibility of the presence of one or more of the
prescribed conditions that warranted a change in the Board’s
decision.9
The ALJ’s decision on a petition for reconsideration
is “limited in the review to the correction of errors patently
appearing upon the face of the award, order, or decision....”10
The ALJ is without authority to reconsider a case on the
merits.11
However, where a case has been assigned for
adjudication, we know of no rule of law or statute which
precludes the dismissal of the claim for failure to meet the
statutory requirements of proof.
The order assigning the case
to an ALJ merely opened the case for the presentation of
evidence and a decision on the merits.
outcome.
It did not determine the
Once it became apparent that Smith could not prove a
change in her impairment rating since the initial award, it was
well within the authority of the ALJ to deny the reopening.
The decision of the Workers’ Compensation Board is
affirmed.
8
See Tuttel v. O’Neal Steel, Inc., 884 S.W.2d 661 (Ky. 1994).
9
Stambaugh v. Cedar Creek Mining Company, 488 S.W.2d 681,682 (Ky. 1972).
10
KRS 342.281.
11
Garrett Mining Company v. Nye, 122 S.W.3d 513 (Ky. 2003).
-6-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wayne C. Daub
Louisville, Kentucky
David L. Murphy
Clark & Ward, PLLC
Louisville, Kentucky
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