Opinion
NO. 2018-CA-001581-WC
01-10-2020
JOHN BINKLEY APPELLANT v. METRO PROPERTY MANAGEMENT CO., INC.; HON. W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Scott C. Justice Louisville, Kentucky BRIEF FOR APPELLEE, METRO PROPERTY MANAGEMENT CO., INC.: Christion Hutson Paducah, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-73080 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: JONES, KRAMER, AND MAZE, JUDGES. KRAMER, JUDGE: The appellant, John Binkley, suffered a severe laceration and resulting injury to his left wrist on August 27, 2012, while working as an apartment maintenance person for Metro Property Management Co., Inc. ("Metro Property"). He received temporary total disability compensation (TTD) from August 28, 2012 through November 11, 2015. In December 2015, Binkley and Metro Property entered into a settlement agreement. The settlement provided Binkley would receive permanent partial disability compensation (PPD) from Metro Property in the amount of $289.12 per week for 311.7143 weeks. The parties also agreed that Binkley had a 24% impairment rating.
Binkley had received TTD in the amount of $308.10 per week from August 28, 2012 through November 11, 2015. Metro Property had also paid $75,882.84 in medical expenses for Binkley.
In July 2017, Binkley filed a motion to reopen his case due to a worsening of his condition or change in disability. After a hearing, the Administrative Law Judge (ALJ) found that there was objective medical evidence of a worsening impairment pursuant to KRS 342.125(1)(d) and KRS 342.0011(33). Rather than finding Binkley permanently and totally disabled, the ALJ increased Binkley's impairment rating to 25%. This increased impairment rating increased Binkley's PPD to $301.17 per week for the remainder of the 311.7143 weeks. Binkley filed a petition for reconsideration in which he argued that, not only should the amount of the award increase, but also the duration. Binkley asserted that he should receive compensation for 425 weeks pursuant to KRS 342.730(1)(d) rather than 311.7143 weeks as contained in the settlement agreement. The ALJ denied Binkley's petition and he appealed to the Workers' Compensation Board ("the Board"). The Board held that:
Kentucky Revised Statute.
While we affirm the ALJ's reliance on KRS 342.125(6) in his award of increased PPD benefits for the duration of the 311.7143 weeks agreed to in the December 4, 2015, settlement, we vacate the award of PPD benefits and remand for additional findings.
The Board vacated the ALJ's decision due to its interpretation of KRS 342.730(4). This appeal followed.
The only issue presented by Binkley on appeal is whether the Board correctly applied KRS 342.125(6) in determining that Binkley is entitled to only 311.7143 weeks of PPD. Binkley argues that KRS 342.125(7) is applicable and that he is entitled to 425 weeks of PPD. We disagree.
"The scope of review by the Court of Appeals shall include all matters subject to review by the board and also errors of law arising before the board and made reviewable by the rules of the Supreme Court for review of decisions of an administrative agency." KRS 342.290. Moreover,
[t]he function of further review of the [Board] in the Court of Appeals is to correct the Board only where the the [sic] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice. The function of further review in our Court is to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of
constitutional magnitude.Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
We now turn to the issues before us. First, we agree with the Board that KRS 342.125(6) was correctly applied to the instant action. The statutory provision reads as follows:
In a reopening or review proceeding where there has been additional permanent partial disability awarded, the increase shall not extend the original period, unless the combined prior disability and increased disability exceeds fifty percent (50%), but less than one hundred percent (100%), in which event the awarded period shall not exceed five hundred twenty (520) weeks, from commencement date of the original disability previously awarded. The law in effect on the date of the original injury controls the rights of the parties.(Emphasis added.)
The original period, as agreed to by the parties, was 311.7143 weeks. However, Binkley asserts that KRS 342.125(7) is applicable. He argues that this statutory provision "essentially reduce[s] reopened settlement[s] to ground zero." KRS 342.127(7) reads as follows:
See page 4 of Binkley's brief to this Court.
Where an agreement has become an award by approval of the [ALJ], and a reopening and review of that award is initiated, no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the [ALJ] as an admission against the interests of any party. The parties may raise any
issue upon reopening and review of this type of award which could have been considered upon an original application for benefits.
We agree with the Board's decision that KRS 342.125(6) is applicable and that, although Binkley received an increase in his PPD, he is not entitled to a greater duration than that of the original period of the award which he agreed to (i.e., 311.7143 weeks). We incorporate the Board's analysis herein. Specifically,
[t]his Board is cognizant of the fact KRS 342.125(7), which pertains to the reopening of an approved settlement agreement, stands for the proposition that no "statement" contained in the settlement agreement shall be considered by the ALJ as an admission against the interests of any party. Pursuant to the plain language of this statutory provision, "statements" include those pertaining to "jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter." Consequently, this Board has consistently held the ALJ's approval of a settlement agreement does not limit fact-finding discretion of future ALJs with regard to essential elements of the original claim on reopening. W.E. Caldwell Co. v. Borders, 193 S.W.2d 453 (Ky. 1946). In the case sub judice, KRS 342.125(7) permitted the ALJ to consider Binkley's argument on reopening that he is now permanently totally disabled, as the ALJ was not bound by the terms of the settlement agreement regarding the extent of his disability. That said, with respect to Binkley's alternative argument on reopening regarding an increase in PPD benefits, KRS 342.125(6) is the applicable statutory provision relevant to the duration of those PPD benefits. Again, we note here that, in his brief to the ALJ, Binkley failed to set forth any argument regarding his alleged entitlement to 425 weeks of PPD benefits, and the first time this argument was presented with any specificity was in his petition for reconsideration. However, as "extent and duration" was
listed as a contested issue at the BRC, this Board will address the merits of Binkley's argument.(Emphasis in original.) (Internal footnote omitted.)
An established rule of statutory construction is that, where two statutes are potentially applicable to the same subject matter, the more specific statute controls. Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005). KRS 342.125(6) specifically states that, in a reopening where additional PPD benefits have been awarded, the increase shall not exceed the original period of the award of PPD benefits except in one specified factual scenario. In contrast, KRS 342.125(7) makes no reference to what can or cannot be done, in a reopening, to the original period of PPD benefits agreed to in a settlement agreement. Under the rules of statutory construction, the more specific mandate in KRS 342.125(6) regarding the inability of an ALJ to increase the original period of the award of PPD eclipses the more generalized declarations regarding settlement agreements in KRS 342.125(7). Neither the ALJ nor this Board are at liberty to interpret a statute at variance with its stated language. McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 77 (Ky. 2002). This means we cannot insert language into KRS 342.125(7) where such language does not exist, nor can we ignore the clear and specific mandate as set forth in KRS 342.125(6) that speaks directly to the issue on appeal.
Benefits Review Conference.
We note that McDowell was overruled on other grounds by Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759, 763 (Ky. 2017).
We now turn our attention to the application of KRS 342.730(4) by the Board. The ALJ did not address the applicability of this statutory provision in the opinion, award, and order entered on May 25, 2018, nor in the order entered June 25, 2018. The current version of the statutory provision reads as follows:
All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches the age of seventy (70), or four (4) years after the employee's injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate as of the date upon which the employee would have reached age seventy (70) or four (4) years after the employee's date of injury or date of last exposure, whichever last occurs.
The Board vacated and remanded the case because, although the applicable version of KRS 342.730(4) was a contested issue in the March 29, 2018 BRC order, it was not addressed by the ALJ. We agree that the ALJ must address the issue, particularly regarding the start and end dates of Binkley's PPD. The Board acknowledged that "[t]he Form 110 Settlement Agreement is silent regarding the date upon which Binkley's original award of PPD benefits should commence." It further opined that, "PPD benefits commencing on the date of injury and suspended by [a] period of TTD would commence no earlier than November 12, 2015." The end date of Binkley's PPD must also be addressed. We agree with the Board to the extent that it is possible KRS 342.730(4) could be implicated. However, we disagree with the Board's reasoning. The Board's decision relied upon an opinion from this Court that has since been reversed by the Kentucky Supreme Court. This Court held the instant action in abeyance pending finality of Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019) in the Kentucky Supreme Court. Our Supreme Court ruled in Holcim that the current version of KRS 342.730(4) is retroactive, specifically stating:
See Holcim v. Swinford, No. 2018-CA-000414-WC, 2018 WL 4261757, at *1 (Ky. App. Sept. 7, 2018), reh'g denied (Oct. 26, 2018), opinion designated not for publication (Aug. 29, 2019), aff'd in part, rev'd in part, Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019).
The Kentucky Supreme Court designated Holcim v. Swinford final on September 24, 2019, and this case was returned to the Court's active docket on October 15, 2019. --------
With no mention of retroactivity or any language from which retroactivity may be inferred, the express language of KRS 342.730(4) does not make the statute retroactive. However, the Legislative Research Commission note following the statute references the Act from which the statute was enacted and, as discussed, is exempt from the codification requirements, as it is temporary in nature. Thus, the legislature has made a declaration concerning retroactivity in this case.Id. at 44.
Since the newly-enacted amendment applies retroactively, it must be used to determine the duration of Swinford's benefits. We remand this matter to the ALJ to apply the time limits set out in the 2018 amendment to KRS 342.730(4).
Although Binkley is currently 64 years of age, it is unclear whether he may ultimately be older than 70 years of age before the full 311.7143 weeks of his PPD expire. Particularly because, as the Board pointed out,
the first period of voluntary TTD benefits spans August 28, 2012, through November 11, 2015; therefore, PPD benefits commencing on the date of injury and suspended by this period of TTD would commence no later than November 12, 2015.
. . . .
As represented in the March 29, 2018 BRC Order, Metro paid an additional period of TTD benefits from July 18, 2017, through January 15, 2018. As clarified in the June 25, 2018, Order, the increased award of PPD benefits begins on July 14, 2017, and is suspended during this second period of TTD benefits, and resumes once again for the balance of the 311.7143 weeks.
Accordingly, we affirm the Board's holding that Binkley is not entitled to 425 weeks of benefits pursuant to KRS 342.125(6). However, we reverse and remand regarding the applicability of KRS 342.730(4) pursuant to Holcim, supra.
ALL CONCUR. BRIEF FOR APPELLANT: Scott C. Justice
Louisville, Kentucky BRIEF FOR APPELLEE,
METRO PROPERTY
MANAGEMENT CO., INC.: Christion Hutson
Paducah, Kentucky