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Supreme Court won't let the pesky law stop them from fully redressing a worker's injury as they see fit.


Our Supreme Court handed out five decisions in September, 2015. In all but one, the Court did backbends to provide maximum recovery for plaintiffs everywhere.

The good news, our highest court seems to apply one new and simple rule: statutes and regulations shouldn't prevent recovery.

The really bad news is that employers and insurers lose. No need to trouble yourself with the facts of the case, all you need is your checkbook. Perhaps I'm overstating things. You be the judge. Let's start with a few quotes and then get into each case.

"[T]he goal of workers' compensation is to fully redress a workers injury." Central Baptist Hosp. v. May. This was the reasoning to allow Plaintiff to receive more than the settlement agreement that she signed and the ALJ approved. "While under traditional contract law May is likely bound to her decision, the goal of workers' compensation is to fully redress a worker's injury." Id.

"Did Whitworth get the relief to which the law entitles her?" Whitworth v. Big Lots. This question formed the basis for the Court to conclude that res judicata just doesn't apply, at least not in this case.

Anyone seeing a pattern here?

Consol of Ky, Inc. v. Goodgame. See Johanna's post on this gem of a decision. Effectively there is no longer a statute of repose. Not sure of the difference between the statute of repose and limitations? There's no need to distinguish, since you won't win on either in a cumulative trauma case.

Miles v. Bluegrass Rehab. Ctr., 2014-SC-000442-WC (not to be published). ALJ Rudloff awarded PTD benefits. The record does not contain any explanation or reasoning, instead it just has a conclusion. The matter is remanded for additional findings. Justices Barber, Cunningham and Venters dissented, they would have affirmed the ALJ. Wonder how this one will turn out...

Central Baptist Hosp. v. May, 2015-SC-000005-WC (not to be published). This matter concerns ALJ Rudloff's refusal to enforce a settlement agreement. A revised agreement was sent to Plaintiff's counsel while he was in the hospital. Despite the same the Form 110 was signed by everyone and submitted to the ALJ. Unbeknownst to anyone the ALJ issued his Opinion on September 11, 2013. Crossing paths with the same was the revised 110, which the ALJ approved on September 16, 2013. The Opinion awarded more than what was "proposed" in the revised 110. Central Baptist moved to enforce the settlement agreement, ultimately the ALJ found there was no meeting of the minds.

The Supreme Court held that the ALJ acted within his discretion. Plaintiff signed the Form 110 without knowledge that the ALJ had issued an opinion. So what? She also signed without the full counsel of her attorney, who was hospitalized at the time she came into his office and signed the agreement. I bet his signature was on the agreement, too. Anyone want to bet against me? "While under traditional contract law May is likely bound to her decision, the goal of workers' compensation is to fully redress a worker's injury."

This should have been reversed. Plaintiff signed the Form 110, and her attorney admitted it contained all of the terms that he and his client were demanding. There was a meeting of the minds.

Hodges Trucking Co. v. Waldeck, 2015-SC-00013-WC (not to be published). Plaintiff reopened, alleging a worsening of his condition. In the original claim, ALJ Roark concluded that there was no impairment for the work injury, but that ongoing medical was warranted for the lumbar spine. Plaintiff had a pre-existing and active low back condition for which he underwent a discectomy. Plaintiff underwent a lumbar fusion a few years later. He then reopened his low back claim and also, for the first time, alleged a mental injury. On reopening ALJ Hays awarded PTD benefits.

The Supreme Court affirmed the Court of Appeals and the ALJ. This matter is headed back to a new ALJ to determine when the mental claim arose. Of course, this is only of importance for the purposes of compensable medical care, as he is already getting PTD benefits.

As for the decision itself? It's a back flip by the Court for this plaintiff. This guy had no impairment, no PPD benefits and a pre-existing and active lumbar condition due to a prior lumbar surgery. You mean to tell me that the need for the fusion surgery stems from the work injury (0% WPI), not the pre-existing and active surgical lumbar condition (10% WPI)? #yeahright

Whitworth v. Big Lots, 2014-SC-000283-WC (not to be published). Plaintiff had a shoulder injury, shoulder surgery, and ongoing subjective cervical complaints. In the original claim, ALJ Gott awarded benefits for the shoulder. A couple of years later, she underwent a cervical fusion. She reopened her claim, asserting a worsening of a cervical conditional, ALJ Weatherby awarded PTD benefits.

Notably, the Board reversed ALJ Weatherby because ALJ Gott previously only found a shoulder injury, which was the law of the case. The Court of Appeals affirmed. The Supreme Court reinstated ALJ Weatherby's opinion. The Court goes through a very detailed, and meaningless, review of the evidence from the original claim. However, the Court glosses over what ALJ Gott actually awarded to Plaintiff, they simply tell us in footnote 4 that Dr. Nazar "did not conclude that there was 'no neck injury'; neither did the ALJ."

"Clearly, the effects of the shoulder injury included Whitworth's cervical complaints when ALJ Gott decided the case." [Emphasis added]. However, ALJ Gott only awarded PPD benefits for the shoulder. The Court of Appeals summarized it as follows:

Whitworth's original work-related injury was clearly identified as a 'left shoulder injury' by the ALJ in the March 24, 2010, opinion and order. Consequently, we agree with the Board that [on reopening] the ALJ cannot expand the definition of 'left shoulder injury' to reasonably include a cervical spine injury.

So, how did the Supreme Court rationalize the ALJ's decision? First, the Court tells us that there is no law of the case in this matter. "As applied in Kentucky, the law of the case doctrine applies only to rulings by an appellate court and not to rulings by a trial court..." Dickerson v. Corn., 174 S.W.3d 451, 466-67 (Ky. 2005).

"ALJ Gott did not determine that Whitworth had sustained only a left shoulder injury. Nor did he determine that the neck was not work-related. ALJ Gott determined that Whitworth had sustained her burden of proving a work-related injury." The joinder statute does not defeat Plaintiff's claim that she now has a cervical injury. While admitting that Whitworth did not list her cervical spine in her Form 101, nor did she amend to include it, the Supreme Court the faults the employer for not objecting to the introduction of evidence such as a cervical MRI in the original claim. In other words-despite the lack of an award by ALJ Gott-the Supreme Court now concludes that the defense tried an injury to the cervical spine by implied consent.

Wait, there's more. The Court then turn to the issue of whether ALJ Gott's decision is res judicata. They conclude it does not bar Plaintiff's claim of a cervical injury. Instead, they feel the proper test is "[d]id Whitworth get the relief to which the law entitles her?" At the time of the original decision, Plaintiff had subjective complaints of neck pain. "Given that ALJ Gott relied upon Dr. Bilkey's opinion and Whitworth's 'credible testimony' in concluding that her injury was work-related, ALJ Weatherby did not err in concluding that Whitworth's left upper extremity injury encompassed her cervical complaints."

With all due respect, the Court's reasoning follows an old spiritual hymn, not the law: "Back bone connected to the shoulder bone. Shoulder bone connected to the neck bone. Neck bone connected to the head bone." We might as well award her mental health benefits since the shoulder is connected to the neck, the neck is connected to the head and the brain is found inside.

The Court never shares ALJ Gott's (a) findings of fact and (b) actual award. Why is the Supreme Court hiding the ball? They go to GREAT lengths to tell us of the ALJ's recitation of the evidence, but those are not his findings of fact. It is not the award of benefits.

The Supreme Court hangs its hat on the fact that Plaintiff voiced subjective complaints of pain in her neck. This is insufficient. For her to establish a cervical injury in her original claim, she had to have: (1) objective medical findings (2) that ALJ Gott accepted in his findings of fact. It would appear that neither of these required elements was present. "Did Whitworth get the relief to which the law entitles her?" Yes, a PPD award for her injured shoulder and medicals for the same.

When a plaintiff tells us that she hurt her low back and that pain now shoots down both arms, both legs, all of her fingers and toes are we now at risk of a reopening three years from now for a carpal tunnel claim? Yes, per the Supreme Court. Think about it. They are allowing her PTD benefits because she now has an impairment for her cervical spine, based solely on the fact that she had subjective complaints of neck pain when the claim was originally decided years ago.

And we, the defense, seem to have no defenses left. Law of the case? No, because she didn't appeal the decision originally. Joinder? No, because she had subjective complaints in her original claim and Defendant didn't object. Res judicata? No, because the Supreme Court feels that would preclude her from getting what they think she should get. Heaven forbid.

These are a painful group of decisions by our Supreme Court. My bigger concern is what this means for future decisions by them. Statutes and regulations don't seem to matter. In the last two months, the Court has overruled two of their own prior cases in order to change the course of the law as they see fit. I find this trend very troubling.

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