BARBARA EDWARDS V HARLAN ARH ; SPECIAL FUND ; HON . SHEILA C . LOWTHER, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY COUR T OF THIS STA TE.
RENDERED : August 26, 2004
NOT TO BE PUBLISHED
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BARBARA EDWARDS
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-0368-WC
WORKERS' COMPENSATION BOARD NO. 96-2795
HARLAN ARH ; SPECIAL FUND; HON. SHEILA
C. LOWTHER, ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Court of Appeals and the Workers' Compensation Board (Board) have
affirmed an Administrative Law Judge's (ALJ's) decision to dismiss the claimant's
motion to reopen on the ground that it was filed more than four years after the initial
award . KRS 342 .125(8). Appealing, the claimant asserts that she had a vested right to
reopen and that it was denied by the ALJ's application of a subsequently-amended
version of KRS 342 .125 to her claim . She also asserts that the amended provision
denied her constitutional rights to due process and equal protection . We affirm .
The claimant sustained two work-related injuries in 1995 . On August 19, 1996,
an ALJ approved a settlement agreement . The parties agreed that the claimant had not
been physically capable of returning to work since November 27, 1995 . They also
agreed that the work-related incidents affected only the L3-4 level of her back and did
not re-injure or aggravate a previous injury at L4-5 . Under the terms of the agreement,
the claimant received previously-paid temporary total disability (TTD) benefits and a
lump sum that represented a 25% occupational disability, payable for 425 weeks from
October 13, 1995 . The agreement also provided that the employer remained liable for
reasonable medical treatment with respect to the L3-4 region of her back but that it was
not liable for treatment of the L4-5 level . At that time, KRS 342.125(1) permitted a
reopening "at any time" upon evidence of a change of occupational disability.
Effective December 12, 1996, KRS 342.125 was amended to provide, in
pertinent part, as follows :
(1)
Upon motion by any party or upon an arbitrator's or
administrative law judge's own motion, an arbitrator or
administrative law judge may reopen an d r eview any award or
order on any of the following grounds:
(a) Fraud ;
(b)
Newly-discovered evidence which could not have been
discovered with the exercise of due diligence ;
(c) Mistake ; and
(d) Change of disability as shown by objective medical evidence of
worsening or improvement of impairment due to a condition cause
by the injury since the date of the award or order.
(3)
Except for reopening solely for determination of the
compensability of medical expenses, fraud, or conforming the
award as set forth in KRS 342.730(1)(c)2 ., or for reducing a
permanent total disability award when an employee returns to work,
no claim shall be reopened more than four (4) years following the
date of the original award or order granting or denying benefits, or
within two (2) years of such award or order, and no party may file a
motion to reopen within two (2) years of any previous motion to
reopen by the same party.
(8) The time limitation prescribed in this section shall apply to all
claims irrespective of when they were incurred, or when the award
was entered, or the settlement approved . However, claims decided
prior to December 12, 1996, may be reopened within four (4) years
of the award or order or within four (4) years of December 12, 1996,
whichever is later, provided that the exceptions to reopening
established in subsections (1) and (3) of this section shall apply to
these claims as well .
Effective July 14, 2000, KRS 342 .125(3) was amended to delete the two-year
restraint on reopening and to permit reopening at any time where a worker is
seeking TTD benefits during the period of an award . 2000 Ky. Acts ch . 514, § 7.
On August 2, 2002, the claimant filed a motion to reopen . It alleged that she had
undergone back surgery on July 5, 2002; that her condition had worsened; and that she
had become totally occupationally disabled . The motion also sought medical benefits
and additional TTD benefits due to the surgery. Attached to the motion were the
claimant's affidavit and various medical reports . The reports indicated that she
underwent surgery on July 5, 2002, for a herniated disc at L3-4 .
Responding to the motion, the employer asserted that the claimant's actual
disability at settlement was total and could be no greater at reopening. Newberg v .
Davis , Ky., 841 S .W .2d 164 (1992) . It maintained that she failed to make a prima facie
case for reopening and that the four-year period of KRS 342.125(8) barred reopening .
Like the employer, the Special Fund asserted that the motion was untimely . Although
the 2000 version of KRS 342.125(3) permitted reopening at any time for medical or
post-award TTD benefits, the ALJ applied the 1996 version of KRS 342 .125 and
dismissed the motion as barred by limitations, explaining that it did not fall within KRS
342 .125(3) and that more than four years had passed since the date of the initial award.
The decision did not address the claimant's assertion that KRS 342 .125(3)
permitted reopening at any time for post-award TTD and medical benefits. Yet, she
failed to petition for reconsideration to bring the matter to the ALJ's attention ; therefore,
the Board rejected her attempt to raise the matter on appeal . It affirmed the decision
insofar as a motion to reopen that was based upon an allegation of a change of
disability and filed more than four years after the underlying award was barred by
limitations .
The claimant continues to maintain that she had a vested right to reopen at any
time under the law on the date of her injury . In McCool v. Martin Nursery_ and
Landscaping, Inc. , Ky., 43 S.W.3d 256, 258 (2001), we explained, however, that the
right to reopen is inchoate until such time as a post-award change of disability occurs.
Furthermore, regardless of when the change occurs, the right to increased benefits
does not vest until a motion to reopen is filed . Johnson v. Gans Furniture Industries,
Inc. , Ky., 114 S .W .3d 850, 855 (2003); Rex Coal Co . v. Campbell, 213 Ky. 636, 281
S .W.2d 1039 (1926). For that reason, any right the claimant had to reopen due to a
change of disability became vested on August 2, 2002, long after the period of
limitations took effect. Therefore, although the provision cut off the claimant's right to
reopen on that ground, it did not impair a vested right.
Workers' compensation is a statutory creation . Although KRS 342.305 permits
the enforcement of a final workers' compensation award as a judgment, KRS 342 .125
authorizes the reopening of a final award in specified instances . KRS 342 .125(1)
provides that a motion to reopen is the procedural device for doing so . In Garrett Mining
Co. v. Nye, Ky., 122 S.W.3d 513, 521 (2003), we explained that a motion to reopen is
governed by the procedural law that is effective at the time it is considered ; whereas,
the merits of a reopened claim are governed by the substantive law in effect on the date
of injury . Maggard v. International Harvester Co . , Ky., 508 S .W.2d 777, 783 (1974).
KRS 342.125(8) provides that the four-year limitation on reopening is mandatory
and applies to all claims . By limiting the duration of the period for reopening, it operates
as both a statute of limitations and repose and may extinguish a cause of action before
it arises . Although a statute of repose may not abolish or diminish the legal remedies
for common-law causes of action for personal injuries or death that existed prior to the
adoption of the 1891 Kentucky Constitution, no such constraint exists with respect to a
statutory cause of action such as workers' compensation . Therefore, applying a statute
of repose to extinguish a worker's right to reopen before it vests does not violate
Section 14, 54, or 241 of the Kentucky Constitution . Johnson v. Gans , supra at 854-55 .
Even in instances where the right to reopen did vest before December 12, 1996, KRS
342 .125(8) permits a reasonable time for reopening and, therefore, does not impair a
vested right. Id .
The claimant asserts that KRS 342 .125(8) violates her rights to due process and
equal protection . Her argument is that the recipients of workers' compensation awards
are entitled to notice of statutory changes that may affect their rights. Relying on KRS
342.040(1), she argues that, like the recipient of voluntary TTD benefits, she was lulled
into a false sense of security by receiving benefits and was not informed that "her
vested right to file a Motion to Reopen" was limited by the 1996 and 2000 amendments.
This argument lacks merit, however, because she had no vested right to reopen until
one of the conditions for reopening existed and she filed a motion . She did so in July,
2002, well after the amendments became effective . Although the principles of equal
protection apply to all those who are similarly situated, the position of a worker who has
received an award differs significantly from that of a worker who receives voluntary TTD
benefits and has yet to file a claim . Weiand v. Board of Trustees of Kentucky
Retirement Systems , Ky., 25 S .W.3d 88, 92 (2000) . Therefore, it was not unreasonable
for the legislature to treat the two groups differently. We are persuaded that the
principles of equal protection do not require the recipients of workers' compensation
awards to be notified of statutory amendments that may affect their potential right to
reopen .
Procedural due process requires notice and an opportunity to be heard in a
quasi-judicial or adjudicatory setting but does not apply to the enactment of legislation .
16B Am. Jur. 2d Constitutional Law § 907 (1998) . In Johnson v. Gans , supra at 857, we
determined that the purpose for limiting the period for reopening workers' compensation
awards was to reduce the cost of workers' compensation insurance and, thereby, to
improve the competitive status of Kentucky employers . The purpose is legitimate, and
provision is a reasonable method for accomplishing it. Unlike the provision that was at
issue in City of Louisville v. Slack , Ky., 39 S .W .3d 809 (2001), it is not unconstitutionally
arbitrary .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Ronald C . Cox
103 E. Central Street
Harlan, KY 40831
COUNSEL FOR APPELLEE, SPECIAL FUND:
Joel D . Zakem
David W. Barr
Workers' Compensation Funds
1047 U.S . Hwy. 127 South, Suite 4
Frankfort, KY 40601
COUNSEL FOR APPELLEE, HARLAN ARH:
Joel W. Aubrey
Kamp T. Purdy
Ferreri & Fogle
203 Speed Building
333 Guthrie Green
Louisville, KY 40202
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