Opinion
NO. 2019-CA-001414-WC
02-21-2020
DIANE ANDERSON APPELLANT v. MOUNTAIN COMPREHENSIVE HEALTH CORPORATION; HONORABLE JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE: W. Barry Lewis Hazard, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 18-WC-01444 OPINION
AFFIRMING
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES. GOODWINE, JUDGE: Diane Anderson appeals the Workers' Compensation Board's August 30, 2019 opinion affirming the Administrative Law Judge's (ALJ's) opinion dismissing her workers' compensation action against Mountain Comprehensive Health Corporation (Employer). She argues the Board erred by not overturning the ALJ's decision because she had newly discovered evidence. Agreeing that the evidence does not amount to newly discovered evidence, we find no error and affirm.
BACKGROUND
Anderson worked for Employer as a nurse for twenty-one years. Because of her employment, she suffered work-related injuries to her neck, back, and hands. Her injuries became so crippling that she resigned from Employer on November 17, 2017 and filed a claim for Social Security disability benefits. On October 3, 2018, Anderson filed a workers' compensation claim, Form 101, alleging she sustained cumulative trauma injuries to her neck, back, and hands on November 17, 2017, while working for Employer. Her Form 101 claims she gave notice of her cumulative trauma, in writing, on September 26, 2018. On October 30, 2018, Employer filed a special answer, asserting Anderson's claims were time-barred.
During depositions, Anderson testified that the first doctor she saw for her pain was Dr. James Owen. However, Dr. Owen was never listed on Anderson's Form 105. This prompted Employer to send a request for production of medical records, with which Anderson did not comply. The ALJ had to order compliance on December 14, 2018. However, the medical records given to Employer did not contain any report from Dr. Owen. Regardless, Employer requested his report, which indicated he examined Anderson on January 23, 2017. A benefits review conference was held on February 12, 2019, followed by a formal hearing on February 26, 2019. Notice was contested.
Form 105 is the Kentucky Department of Workers' Claims Plaintiff's Chronological Medical History form. It details: (1) names and addresses of every physician/hospital the plaintiff saw or visited; (2) dates treatment was received; (3) the nature of the injury; and (4) whether the plaintiff is still under a doctor's care.
Anderson filed a brief on March 27, 2019, with the ALJ. Contrary to her deposition testimony, she stated it was, in fact, Dr. Chad Morgan that informed her she had permanent, work-related injuries on September 25, 2018. Employer argued that since: (1) Anderson previously testified it was Dr. Owen who originally diagnosed her; (2) Dr. Owen's report was dated January 23, 2017; and (3) she did not comply with discovery (a delay of 618 days), she did not provide due and timely notice. The ALJ agreed.
At the formal hearing, Anderson testified that Dr. Owen's report had a typographical error, and he saw her on January 23, 2018. However, the ALJ found that based on the combination of Anderson's deposition and the dated medical report from Dr. Owen, the due date for giving notice was January 23, 2017. The ALJ ultimately dismissed her claim and she did not file a petition for reconsideration.
Instead, Anderson appealed to the Board. In that appeal, Anderson attached, for the first time, two medical reports to her brief. The first was a report from Dr. Owen, dated January 23, 2018, and a statement from Dr. Owen, dated June 13, 2019. The statement indicated the date on his report was incorrect and that he actually saw Anderson on January 23, 2017, not 2018. Anderson argued she only discovered the mistake after the ALJ's opinion and Dr. Owen was on vacation at the time, leaving him unable to fix the mistake before the appeal. The Board rejected this notion. It found the report was misdated. However, this correctly dated report did not constitute newly discovered evidence because it could have been discovered with due diligence. The Board also noted that if Anderson had complied with the request for production of documents, she would have had them five months before the ALJ's decision. Thus, the Board affirmed the ALJ's opinion. This appeal followed.
STANDARD OF REVIEW
On appellate review of the Board's decision in a workers' compensation appeal, our role "is to correct the Board only where the . . . 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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). This is a highly deferential standard, and we will only displace the Board's judgment with our own upon a finding of error.
ANALYSIS
We briefly pause to point out that Anderson never filed a petition for reconsideration with the ALJ under KRS 342.281. Per this statute, within fourteen days of the order, a party may file a petition for reconsideration. KRS 342.281. The petition shall clearly set out the errors relied upon with reasons and argument for reconsideration. Id. We take note that the statute does not have language firmly requiring the petition, although in Eaton Axle Corp. v. Nally, our Supreme Court held that
Kentucky Revised Statutes.
no award, order or decision of the [ALJ] shall be reversed or remanded on appeal to any court because of failure of said [ALJ] to make findings of an essential fact unless said failure is brought to the attention of the [ALJ] by Petition for Rehearing pursuant to KRS 342.281.688 S.W.2d 334, 338 (Ky. 1985). However, we choose to review this issue because the Board, on appeal, evaluated the validity of the claim.
Under Kentucky law, KRS 342.125(1) permits a final workers' compensation award to be reopened and modified on four specified grounds: (1) fraud; (2) newly discovered evidence; (3) mistake; or (4) change of disability. KRS 342.125(1). A motion to reopen based on one or more of these grounds is, in effect, a request for a new trial; thus it is governed by the criteria for granting new trials under CR 60.02. Wagner Coal & Coke Co. v. Gray, 208 Ky. 152, 270 S.W. 721 (1925); Keefe v. O.K. Precision Tool & Die Co., 566 S.W.2d 804 (Ky. App. 1978). "No claim which has been previously dismissed or denied on the merits shall be reopened except upon the grounds set forth in this section." KRS 342.125(2). Therefore, since Anderson's claim was dismissed, she must make a showing of one of the four specified grounds.
Kentucky Rules of Civil Procedure.
Anderson chooses to argue only that the corrected report should qualify as newly discovered evidence. We disagree. As stated by the Kentucky Supreme Court,
We note that Anderson also argued to the Board that the report qualified as a mistake. The Board dispensed of this argument because it was not raised in a petition for reconsideration. This option is not before us and will not be addressed in this appeal. --------
"[N]ewly discovered evidence" is a legal term of art. It refers to evidence that existed but that had not been discovered and with the exercise of due diligence could not have been discovered at the time a matter was decided. Stephens v. Kentucky Utilities Company, 569 S.W.2d 155 (Ky. 1978), explains further that when the term is used in a statute, it may not be construed to include evidence that came into being after a matter was decided.Russellville Warehousing v. Bassham, 237 S.W.3d 197, 201 (Ky. 2007) (citation omitted). A new trial request may not be granted under CR 60.02 if based on new evidence that could and should have been discovered and produced in the initial trial. Wagner Coal & Coke Co., 270 S.W. at 722. Each party to a cause of action must, therefore, exercise due diligence in discovering and introducing evidence sufficient to prove its case before the matter is submitted for a decision.
As used in KRS 342.125(1), "newly-discovered evidence" refers to evidence existing at the time of the initial proceeding that the moving party did not discover until recently and with the exercise of due diligence could not have discovered during the pendency of the initial proceeding. Russellville Warehousing, 237 S.W.3d at 201. Moreover, the evidence must not be merely cumulative or impeaching, but must be material and, if introduced at reopening, will probably result in a different outcome. Hopkins v. Ratliff, 957 S.W.2d 300 (Ky. App. 1997).
Here, we agree with the Board's logic. The incorrect date could have been discovered and corrected, if Anderson had exercised due diligence in obtaining the correctly dated report. Additionally, Anderson should have been aware that Dr. Owen's report was critical to obtain because she testified at her deposition that he was the doctor that originally diagnosed her. Anderson also failed to disclose her examination by Dr. Owen on her Form 105 and did not timely comply with discovery requests. Therefore, we are not convinced that Dr. Owen's report qualifies as newly discovered evidence and affirm the Board and the ALJ's decision.
CONCLUSION
For the foregoing reasons, we affirm the Board's August 30, 2019 opinion.
ALL CONCUR. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky BRIEF FOR APPELLEE: W. Barry Lewis
Hazard, Kentucky