Opinion
NO. 2012-CA-000056-WC
08-03-2012
DARLA SASSEEN APPELLAN v. PURCHASE DISTRICT HOME HEALTH; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; NEUROSURGICAL ASSOCIATES; WESTERN BAPTIST HOSPITAL; BUTLER & ASSOCIATES; RADIOLOGY GROUP OF PADUCAH; LOURDES AMBULATORY SURGERY CENTER, LLC; REHAB ASSOCIATES; PADUCAH PHYSIATRIC PARTNERS, PSC; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Craig Housman Paducah, Kentucky BRIEF FOR APPELLEE PURCHASE DISTRICT HOME HEALTH: S. Boyd Neely, Jr. Mayfield, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-96364
OPINION
VACATING AND REMANDING
BEFORE: COMBS AND THOMPSON, JUDGES; LAMBERT, SENIOR JUDGE. COMBS, JUDGE: Darla Sasseen filed this petition for review of an order of the Department of Workers' Claims. Following our review, we vacate and remand.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Sasseen was employed as a home health nurse by Purchase District Home Health ("Purchase") for more than seventeen years. While walking into a patient's home on February 11, 2009, Sasseen slipped on a patch of mud and twisted her back. She experienced severe pain. Her physician advised her to stop working. Sasseen did so briefly but returned to work on April 20, 2009, because she feared being laid off. Sasseen's pain then increased, and she worked her last day on June 14, 2009.
Throughout the following year, Sasseen consulted with several physicians and was treated with epidural steroid injections and trigger point injections, but her pain was not relieved. Finally, a CT myelogram was performed, which revealed some abnormality in an area of her back different from the area that the doctors had been treating. Sasseen underwent surgery on July 26, 2010. She experienced some improvement, but in November 2010, her doctor discovered that scar tissue had developed and was causing continual pain. Realizing that she was unable to return to work, Sasseen resigned from Purchase in early November 2010.
She filed a workers' compensation claim against Purchase based on her work injury of February 11, 2009. On June 24, 2011, the Administrative Law Judge (ALJ) entered an opinion and order. Pertinent to this appeal, the ALJ found that Sasseen was eligible for Temporary Total Disability (TTD) benefits for the time period between February 11, 2009 (the date of injury) and April 19, 2009 (the day before she returned to work). Sasseen filed a petition for reconsideration. The ALJ then sustained the order and entered new findings, which awarded additional TTD benefits from June 15, 2009, until February 3, 2011.
The Workers' Compensation Board (the Board) reversed and remanded as to several findings of the ALJ. On appeal, the only issue contested is the award of TTD benefits. Sasseen argues that in its order reversing and remanding, the Board impermissibly made findings of fact.
Kentucky Revised Statute[s] (KRS) 342.285 sets forth that a review of the Board's decision of an ALJ is limited. It is not permitted to substitute its judgment concerning the weight of the evidence on questions of fact. Instead, its review is confined to determining whether:
(a) The administrative law judge acted without or in excess of his powers;KRS 342.285.
(b) The order, decision, or award was procured by fraud;
(c) The order, decision, or award is not in conformity to the provisions of this chapter;
(d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record; or
(e) The order, decision, or award is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Our review of a decision of the Board is also carefully circumscribed. We may only correct the Board if it "has overlooked or construed controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
In this case, Sasseen had requested the ALJ to make a determination of her entitlement to TTD benefits. Sasseen and Purchase stipulated that she was entitled to them for the period between February 12, 2009, and April 19, 2009. Purchase had already paid the TTD benefits for that time period prior to this appeal. However, Sasseen believed that she was entitled to TTD from June 15, 2009, until the time that she was assessed a permanent partial impairment rating. She suggested a date of either November 2010 date or of February 3, 2011 -- both dates on which doctors had offered opinions -- as possible times for the setting of an assessment of a permanent partial rating.
In his opinion and order, the ALJ acknowledged the limited stipulation of TTD but did not make a further determination. Sasseen filed a petition for reconsideration and asked for the ALJ to examine the issue more closely. The ALJ then sustained her petition and awarded TTD benefits from June 15, 2009 (Sasseen's last day of work) until February 3, 2011 (the date of a permanent partial impairment rating). The ALJ also corrected two instances of incorrect dates within the body of the opinion. First, he mistakenly mentioned that Sasseen had undergone surgery in April 2009 rather than July 2010. Second, he had erroneously remarked that Sasseen had resigned from her job in June 2009 when she had actually resigned in November 2010.
The Board reversed the award of TTD benefits between June 15, 2009, and July 26, 2010 (the date of Sasseen's surgery) because it construed the amendment as an erroneous and impermissible act of the ALJ's reversing himself on a finding of fact. It then remanded the claim back to the ALJ in order to determine whether Sasseen should receive TTD benefits for the time subsequent to her surgery.
Sasseen contends that the ALJ changed the dates of her TTD benefits based on the amendments that it made to her date of surgery and date of resignation. However, the ALJ did not establish a connection between the two amendments. Any correlation is speculative. We believe that the ALJ changed the time period of eligibility for TTD benefits as a correction of an omission.
More significantly, we believe that KRS 342.281 allows a party to petition for reconsideration by the ALJ. It limits the review on reconsideration "to the correction of errors patently appearing upon the face of the award, order, or decision[.]" Our Supreme Court has held that the failure to find facts on all contested issues is a patent error. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 893 (Ky. 2007); Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 338 (Ky. 1985). Claimants are entitled to findings that are based on accurate facts. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 689 (Ky. 1985); Whitaker v. Peabody Coal Co., 788 S.W.2d 269 (Ky. 1990). When a mistake is discovered, it is actually error for the ALJ not to amend the award of benefits in order to be in conformity with the actual facts. Fayette County Bd. of Educ. (the Board) v. Phillips, 439 S.W.2d 319, 323 (Ky. 1969). Eligibility for TTD benefits is a question of fact. Hawes Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329 (Ky. App. 2000) (citing W.L. Harper Construction Co., Inc. v. Baker, 858 S.W.2d 202, 205 (Ky. App. 1993)).
This case was decided under previous law. At that time, the Board fulfilled the role of the current ALJ. Nonetheless, the language in the statutes that describes the role has not changed.
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In this case, we are persuaded that the ALJ did not err in amending the opinion and order as to the findings of TTD benefits. Sasseen had consistently contested the issue of TTD benefits, which the record reflects in the hearing transcript, in Sasseen's brief to the ALJ, and in her petition for reconsideration. However, the ALJ initially only reiterated the stipulated TTD time period. It omitted further findings - an omission that was a patent error. It was wholly proper for the ALJ to correct the erroneous omission of findings and to add those findings to his order. As noted in Fayette County Board. of Education, supra, it would have been error for him not to have made the correction.
Consequently, we are persuaded that the Board erred in its finding that the ALJ had improperly made additional findings of fact. The Board examined the evidence and provided parameters in instructing the ALJ as to the periods of time concerning TTD eligibility. In so doing, the Board erroneously engaged in fact finding that is the exclusive province of the ALJ and exceeded its statutory authority. KRS 342.285.
Therefore, we vacate the order of the Board and remand for entry of an order consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Craig Housman
Paducah, Kentucky
BRIEF FOR APPELLEE PURCHASE
DISTRICT HOME HEALTH:
S. Boyd Neely, Jr.
Mayfield, Kentucky