Opinion
NO. 2017-CA-000061-WC
02-02-2018
WORK4CE, INC. APPELLANT v. NICHOLAS PLATANIOTIS; HON. THOMAS POLITES, ADMINISTRATIVE LAW JUDGE; AND KENTUCKY WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Gregory L. Little Lexington, Kentucky NO BRIEF FILED FOR APPELLEES.
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-93256 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, DIXON, AND JONES, JUDGES. JONES, JUDGE: The Appellant, Work4Ce, Inc., as insured by KESA ("Work4Ce"), appeals from an opinion of the Kentucky Workers' Compensation Board ("Board"). The primary issue presented by this appeal is whether the Board erred in affirming the Administrative Law Judge's ("ALJ") finding as to the date of injury, which differed from the date of injury the parties stipulated to throughout the proceedings. Having reviewed the record, we reverse and remand. As recently explained by our Supreme Court in Hale v. CDR Operations, 474 S.W.3d 129 (Ky. 2015), the ALJ was bound by the parties' stipulation of fact as to the date of injury. Since neither party moved for relief from the stipulation, the ALJ had no authority to set the stipulation aside. Accordingly, we reverse as to that issue. We express no opinion as to the remaining issues; those issues will have to be reevaluated by the ALJ on remand in light of the stipulated injury date.
I. BACKGROUND
Nicholas Plataniotis ("Plataniotis") began working for Work4Ce, a temporary employment placement agency, in June of 2012. He was assigned to work at the Toyota plant as a measurement technician. At Toyota, Plataniotis was required to hold a large camera while being hunched over a steel surface plate, approximately 18 inches off the ground, which he cleaned and then chemically etched. These duties were mostly performed looking up from a crouched position while on his hands and knees, or bent over with arms extended. In September 2012, Plataniotis began complaining of back and neck pain, which he attributed to his job duties. At that time, Plataniotis notified Work4Ce, as insured by KEMI, of his injuries. Plataniotis continued to complain of back and neck pain until December 2013, when he was assigned a new position with Toyota in January 2014. Plataniotis continued his employment with Work4Ce through July 2014, when his contract with Toyota was terminated.
Relevant to this appeal, at the time Plataniotis began his employment with Work4Ce, Work4Ce was insured by KEMI. However, on March 26, 2013, Work4Ce ended its insurance relationship with KEMI and began coverage through KESA. To date, Work4Ce remains insured by KESA.
On or about July 25, 2014, Plataniotis filed a Form 101 Application for Resolution of Injury Claim with the Department of Workers' Claims. In his Form 101, Plataniotis alleged work-related cumulative trauma injuries to his neck and back beginning in September 2012. He further alleged that notice was provided to Work4Ce in September 2012.
Prior to a final hearing before the ALJ, KEMI reached an agreement to settle any liability arising during its period of coverage, beginning when Plataniotis began experiencing symptoms in September 2012. KEMI paid a lump sum of $3,000, including $1,000 for waivers/buyouts of past and future medical benefits, vocational rehabilitation and the right to reopen against Work4Ce while covered by KEMI. The agreement expressly reserved Plataniotis's right to pursue his claim for the time period from March 27, 2013, until his employment ended in June 2014.
On December 17, 2015, the ALJ presided over a combined Benefit Review Conference ("BRC") and a Final Hearing. As part of the BRC, the parties stipulated to numerous facts, including that Plataniotis sustained an alleged work-related injury in September 2012. Following a hearing, at which Plataniotis was the only witness, the ALJ rendered an opinion and award. As related to this appeal, the ALJ found the opinion of Dr. Michael Grefer, Plataniotis's treating physician, to be more persuasive than the opinions submitted by Work4Ce's experts. Accordingly, the ALJ found that as a result of his work, Plataniotis "suffered a compensable injury as defined in the Kentucky Workers' Compensation Act and is therefore entitled to permanent partial disability benefits." Despite the parties' previous stipulation as to injury date, the ALJ rendered his own finding that Plataniotis sustained a cumulative trauma injury that manifested itself on March 26, 2014, the date Dr. Grefer diagnosed the injury as being work related. Based on his findings of fact and conclusions of law, the ALJ awarded Plataniotis permanent partial disability ("PPD") benefits in the sum of $18.34 per week beginning March 26, 2014, and ending 425 weeks later as well as medical expenses pursuant to KRS 342.020. The effect of the ALJ's award was to place liability for the cumulative trauma injury on KESA for the entirety of the time at issue.
Kentucky Revised Statutes.
Work4Ce filed a petition for reconsideration arguing that the ALJ erred when he addressed Plataniotis's date of injury because the parties stipulated the date of injury as September 2012. The ALJ denied the petition. On appeal to the Board, Work4Ce again argued that the ALJ erred in addressing Plataniotis's date of injury. It also maintained that Plataniotis's current condition is the same as it was in September 2012, meaning any liability for his alleged work-related cumulative trauma injury should be covered by KEMI, Work4Ce's insurance carrier at the time of injury.
By Opinion entered December 2, 2016, the Board affirmed the ALJ. Regarding Plataniotis's injury date the Board found as follows:
We disagree the parties stipulated the date of injury as September, 2012. The date of injury in a cumulative trauma claim does not bear the same import as in a traumatic injury claim. The exact wording of the October 28, 2015[,] Benefit Review Conference order reflects this distinction: "Plaintiff sustained a work-related injury or injuries on alleged beginning of 9/2012." The December 17, 2015[,] hearing order notes Work4Ce, as insured by KEMI, settled for the period of exposure during its policy. When the stipulation is considered in conjunction with the reservation of the right to proceed against Work4Ce, it is clear the parties stipulated that the condition first became symptomatic in September, 2012.
In a cumulative trauma claim, the date that symptoms arise may not be the same as the date when the condition becomes disabling or impairment ratable. This is particularly true when, as here, the claimant continues to be exposed to the trauma after symptoms arise. Furthermore, the date symptoms arise may differ from
the date of manifestation for notice and statute of limitations purposes. Having concluded the stipulation referred only to the date symptoms arose, the date of the onset of disability remained an issue and was properly addressed by the ALJ. We find no error.
The Board then stated it found no error in the ALJ award of PPD benefits to Plataniotis and found KESA the responsible insurance carrier for those benefits. Specifically, the Board stated:
While Plataniotis was clearly symptomatic during a period when KEMI had coverage, there is simply no medical opinion to establish his impairment rating existed until the period KESA provided coverage. Drs. Vaughan and Jenkinson did not believe Plataniotis sustained a permanent injury, nor did they assign a permanent impairment rating. Dr. Grefer assigned a 5% impairment rating based upon the totality of Plataniotis' exposure to cumulative trauma, and made no attempt to apportion the impairment rating between the periods of coverage by the two carriers. Dr. Grefer was the first physician to diagnose a permanent harmful change, which occurred on March 26, 2014, during the time KESA provided coverage. We find no error in the ALJ's award of income benefits commencing on this date.
The Board then determined there was no error in the ALJ awarding Plataniotis medical benefits. The Board explained:
Clearly, Plataniotis is entitled to an award of reasonable and necessary medical treatment. Here, there was no medical fee dispute filed. Rather, Plataniotis merely filed a notice indicating he was seeking reimbursement of expenses he and his insurer had paid. Work4Ce did not challenge the reasonableness or necessity of the medical treatment directly. Rather, Work4Ce's position before the ALJ was that any subjective complaints Plataniotis
had were related to a prior active condition or, alternatively, were related to a temporary injury during coverage by KEMI. As set forth above, liability for medical expenses during the period of KEMI's coverage was resolved by the settlement agreement. Work4Ce remains liable for the reasonable and necessary treatment from the date KESA began to provide coverage.
This appeal followed.
II. STANDARD OF REVIEW
On review, neither the Board nor the appellate court can substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). A reviewing body cannot second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Bd. of Educ., Shelby County, 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). To demonstrate an abuse of discretion, "[a] party who appeals a finding that favors the party with the burden of proof must show that no substantial evidence supported the finding, i.e., that the finding was unreasonable under the evidence." Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 754 (Ky. 2011).
Statutory interpretation is a matter of law reserved for the courts, and courts are not bound by the ALJ's or the Board's interpretation of a statute. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329-30 (Ky. App. 2000). Indeed, the appellate court's province is to ensure that ALJ decisions, and the Board's review thereof, are in conformity with the Workers' Compensation Act. KRS 342.290; Whittaker v. Reeder, 30 S.W.3d 138, 144 (Ky. 2000); Bowerman v. Black Equip. Co., 297 S.W.3d 858, 874-75 (Ky. App. 2009).
III. ANALYSIS
At the outset, we note that Plataniotis has failed to file a brief. CR 76.12(8)(c) sets forth the penalties for the failure of an appellee to file a brief:
Kentucky Rules of Civil Procedure. --------
If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case."The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007) (citation omitted). Given the importance of these issues, we have elected to accept Work4Ce's statement of the facts and issues as correct. Nevertheless, we will still review the Board's application of the law to those facts and issues to determine whether there was any cognizable error in this case.
We begin our review with the Kentucky Supreme Court's opinion in Hale v. CDR Operations, 474 S.W.3d 129 (Ky. 2015). While Hale is on-point, the Board failed to consider it. In Hale, the employee suffered a cumulative trauma injury and filed a workers' compensation claim against his employer. During the BRC the parties stipulated an injury date of February 7, 2012. Following a hearing, the ALJ rendered an opinion in which it was also noted that the parties stipulated an injury date of February 7, 2012. The ALJ then found based on the evidence of record the employee to be totally permanently disabled. The employer appealed to the Board. The Board subsequently reversed and remanded the claim back to the ALJ. In its opinion, even though the issue was not raised by the parties, the Board refused to accept the stipulated date of injury, February 7, 2012. The Board concluded that the stipulated injury date did not "comprise a date of manifestation." As a result, the Board remanded the claim with directions to the ALJ to determine date of manifestation. The Court of Appeals affirmed and the employee appealed to the Kentucky Supreme Court.
In addressing the issue of a manifestation date of a cumulative trauma injury the Court noted that "a rule of discovery applies for establishing the date of injury." Id. at 138. In examining the Board's opinion, the Court held, "[a]lthough the Board held that the ALJ's determination as to the date of manifestation must be vacated, the Board has no authority to set aside a valid stipulation of fact, sua sponte." Id. at 140 (footnote omitted). Further, the Court explained:
Here, the ALJ properly found that the date of manifestation was February 7, 2012, because he was bound by the parties' stipulation. Lappinen v. Union Ore Co., 224 Minn. 395, 29 N.W.2d 8, 17 (1947) ("As long as a stipulation remains in effect it is binding not only on the parties, but on both the trial and appellate court."); Fed. Deposit Ins. Corp. v. St. Paul Fire & Marine Ins. Co., 942 F.2d 1032, 1038 (6th Cir.1991) ("Stipulations voluntarily entered by the parties are binding, both on the district court and on us."); Double M Const., Inc. v. State Corp. Comm'n, 288 Kan. 268, 202 P.3d 7, 10 (2009) ("Parties are bound to their stipulations, however, and a trial court or appellate court must render judgment based on those stipulated facts."); Bruggner v. Shaffer, 138 Ind.App. 183, 210 N.E.2d 439, 441 (1965) ("[F]acts which are stipulated ... not having been set aside or withdrawn are conclusive upon the parties and the tribunal.... While the specific question of the stipulated facts was not raised in appellant's briefs, this court ... is not so restricted that it must close its eyes to what is clearly before it.").Id. at 139-40.
Turning to the facts before us, it is clear that the Board and the ALJ erred as a matter of law when the ALJ addressed the issue of Plataniotis's manifestation of injury date. The record is undisputed that the parties stipulated during the December 17, 2015, BRC that Plataniotis's injury date was September 2012. Moreover, the wording of the stipulation in this case is substantially the same as the stipulation in Hale.
While the ALJ and the Board may disagree with the stipulation, it is nonetheless binding because it is a fact agreed to by the parties. An ALJ is "free to judge the credibility of witnesses and to weigh conflicting evidence," the ALJ, however, is "not free to disregard the date to which they agreed." Hale, 474 S.W.3d at 139, citing Stewart v. Unifirst Corp., No.2006-SC-0396-WC, 2007 WL 542143, at *5 (Ky. Feb. 22, 2007). Accordingly, we reverse the Board on this issue. The date of manifestation is September 2012, as stipulated by the parties.
Because the initial injury date fell within KEMI's coverage period, it was error for the ALJ to award benefits as KEMI had already settled with Plataniotis. On remand, the ALJ will have to determine whether Plataniotis suffered any exacerbation within the period Work4Ce was covered for KESA that would subject it to liability for any of his medical expenses. However, based on the stipulated injury date, KESA would not be liable for any medical expenses that stem only from the initial injury or any temporary exacerbation that preceded its coverage period.
IV. CONCLUSION
For the reasons set forth above, we reverse the December 2, 2016, Opinion of the Board and remand this matter for further proceedings consistent with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Gregory L. Little
Lexington, Kentucky NO BRIEF FILED FOR APPELLEES.