Kuhlman Electric Corp v. Rex Cunigan ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: DECEMBER 18, 2014
NOT TO BE PUBLISHED
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2014-SC-000189-WC
IDATE1-11.-%
KUHLMAN ELECTRIC CORP. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-001424-WC
WORKERS' COMPENSATION NO. 08-79685
REX CUNIGAN;
HONORABLE CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE;
JOSEPH W. JUSTICE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Kuhlman Electric Corp., appeals the reopening of Rex
Cunigan's workers' compensation award. Kuhlman argues that the Court of
Appeals and Workers' Compensation Board erred by reversing the
Administrative Law Judge's ("ALP) opinion and order which dismissed the
motion to reopen because: 1) the alleged lumbar disc herniation claim is
procedurally barred by res judicata; and 2) there were not adequate grounds
presented by Cunigan to reopen the claim. For the below stated reasons we
affirm the Court of Appeals, albeit on slightly different grounds.
Cunigan worked for Kuhlman as a janitor who performed preventive
maintenance. On April 24, 2008, he fell and suffered a work-related injury. He
reported the injury to his supervisor but did not seek medical treatment at that
time. However, Cunigan later began to suffer from pain in his buttocks and left
leg.
On April 22, 2009, Cunigan filed a Form 101 as a pro se claimant
seeking benefits for an alleged left leg injury. Cunigan attached to the Form
101 a statement indicating that his treating physician, Dr. J. Rick Lyon,
wanted him to undergo an MRI to determine the cause of his pain. However,
Kuhlman filed a Form 112 medical fee dispute arguing that the MRI was
unnecessary based on the opinion of Dr. Michael Best who did not find' any
evidence of radiculopathy or myelopathy in his examination of Cunigan. Prior
to the final hearing, Cunigan did not undergo an MRI. The majority of the
medical evidence introduced before the final hearing indicated that Cunigan
suffered from a hamstring tear.
ALJ Joseph W. Justice was assigned to the matter. He ordered a
university evaluation to be performed to determine the cause of Cunigan's pain,
but this was set aside on Kuhlman's petition for reconsideration. At the final
hearing, held on May 21, 2010, Cunigan, still representing himself pro se,
testified that, "All I want is to get the MRI, find out why a little old hamstring
tear, I'm still hurting in the center, not in my, right below my belt, my butt, my
leg swells. I stay up on it all day long. All I want is the MRI."
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In an opinion, award, and order, ALJ Justice found that Cunigan had a
work-related injury to his hamstring but that it healed and caused no
permanent impairment. In regards to the requested MRI, ALJ Justice stated:
[Kuhlman] filed a medical fee dispute contesting a proposed MRI by
Dr. Lyon. The ALJ has already discussed the matter herein.
Under the medical evidence filed herein, with [Cunigan] having no
objective medical evidence of radiculopathy, and the EMG being
negative for disc injury, and with the hamstring diagnosis, the ALJ
was persuaded by Drs. Best and Goldman that an MRI was not
reasonable or necessary.
ALJ Justice awarded Cunigan temporary total disability benefits from April 25,
2008, through October 1, 2008, and dismissed his claim for permanent partial
disability benefits. ALJ Justice also found that Cunigan was not entitled to
any future medical treatments.
On October 28, 2010, Cunigan, now through counsel, filed a motion to
reopen pursuant to KRS 342.125. The motion to reopen was based upon an
MRI performed by Dr. Richard Lingreen on August 23, 2010, which indicated
that Cunigan had a large central disc herniation at L5-S 1. Cunigan also filed a
report by Dr. Gregory Wheeler, who connected the disc herniation to his work-
related fall. Kuhlman objected, arguing that the ALJ's findings regarding any
lumbar injury was the law of the case per res judicata and that Cunigan failed
to preserve the issue. Kuhlman also filed a new report from Dr. Best in which
he opined that any disc herniation was unrelated to Cunigan's work-related
fall.
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Ultimately the matter was assigned to ALJ Chris Davis.' He entered an
order dismissing the motion to reopen. ALJ Davis stated:
I have, I hope, given the potential gravity of [Cungan's] low
back injury, carefully weighted the equities, facts and law herein. I
agree entirely with [Cunigan] that a condition that is originally
found to be a temporary condition can be re-opened to show a
worsening of condition into a permanent condition.
I have also considered that at the time of the original
litigation [Cunigan] was acting pro se, with all of its difficulties and
disabilities. I have further [] taken into account the fact that
[Cunigan] may have a serious low back injury.
Nonetheless, it is clear to me that when Justice Palmore,
Messer [v.] Dress, 382 S.W.2d 209 (Ky. 1964) spoke of 'mistake'
and 'change of condition' he was not speaking of a Plaintiff, on re-
opening, alleging an entirely new injury and body part.
Furthermore, while [Cunigan] correctly argues that no
physician, at the time of Judge Justice's original opinion,
affirmatively stated [he] had a herniated disk it was clear that Dr.
Lyons had requested lumbosacral MRI. That MRI was denied and
the issue of it was before Judge Justice. Therefore, the issue of
whether or not [Cunigan] might have a work-related low back
injury was before Judge Justice but he concluded that [Cunigan]
only had a temporary hamstring injury.
Finally, on this issue, it is clear that [Cunigan] is not arguing
that the herniated disk arose subsequent to the Opinion by Judge
Justice, as a result of wear and tear or some other possible theory,
but was present and work-related prior to the Opinion by Judge
Justice. And, as discussed, Judge Justice was not persuaded.
Therefore, based on the following, including but not limited
to the fact that the herniated disk was in existence at the time
Judge Justice wrote his opinion, the issue of further lumbosacral
treatment was before him and denied, and the only work-related
finding was of a temporary hamstring injury[, Cunigan], as a
matter of law, is precluded, based on the doctrine of res judicata,
from now arguing that he has a work-related low back injury.
Accordingly, all of his claims in this matter, at this time, are
dismissed because, as a matter of law and procedure, he does not
have a work-related low back injury. .
1 The motion to reopen was originally assigned to ALJ Jennie Owen Miller but she
recused.
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I am compelled to address [Cunigan's] argument that at the
time of Judge Justice's original opinion neither the physicians, the
parties, nor the Judge had the benefit of the MRI. Whether or not
this is newly discovered evidence is not properly before the
undersigned and will not be considered. Certainly the issue of the
work-relatedness of the lumbar spine was before Judge Justice.
Cunigan filed a petition, and an amended petition, for reconsideration. These
were denied.
Cunigan then appealed to the Board which reversed and remanded the
ALJ's decision. The Board held that Cunigan established the requisite showing
to reopen on two of the grounds provided in KRS 342.125: newly discovered
evidence and mistake. The Court of Appeals affirmed the Board. Kuhlman
now files this appeal.
In reviewing Kuhlman's argument we note that the Court of Appeals only
needed to correct the Board "if it 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 Hospital v. Kelly, 827 S.W.2d 685,
687-688 (Ky. 1992). Keeping these standards in mind, we affirm the Court of
Appeals.
I. CUNIGAN'S MOTION TO REOPEN WAS NOT BARRED BY THE DOCTRINE
OF RES JUDICATA
Kuhlman's first argument is that Cunigan's motion to reopen his claim,
based on a lumbar disc herniation, is barred by res judicata. It contends that
the doctrine of res judicata applies because Cunigan was required to include all
of his alleged injuries, including his newly alleged lumbar disc herniation, in
his original claim. Additionally, Kuhlman believes since the AU found there
was no evidence to support ordering an MRI to be performed, it was
conclusively decided that any lower back injury was not work-related.
"The doctrine of res judicata (also known as the doctrine of the finality of
judgments) is basic to our legal system and stands for the principle that once
the rights of the parties have been finally determined, litigation should end.
Thus, where there is an identity of parties and an identity of causes of action,
the doctrine precludes further litigation of issues that were decided on the
merits in a final judgment." Slone v. R & S Mining, Inc., 74 S.W.3d 259, 261
(Ky. 2002). However, KRS 342.125 provides that a final judgment in a workers'
compensation proceeding can be reopened if one of four grounds is met "(a)
Fraud; (b) Newly-discovered evidence which could not have been discovered
with the exercise of due diligence; (c) Mistake; and (d) Change of disability as
shown by objective medical evidence of worsening or improvement of
impairment due to a condition caused by the injury since the date of the award
or order." See AAA Mine Services v. Wooten, 959 S.W.2d 440, 441 (Ky. 1998)
("Although the concept of finality applies to workers' compensation awards,
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KRS 342.125 provides some relief from the principles of res judicata under
certain specified conditions.")
While ALJ Justice failed to order the requested MRI be performed, that
does not preclude Cunigan from asking to reopen his claim. Thus, Res judicata
does not prevent the reopening of this claim. We now look to see if Cunigan
presented evidence of at least one of the grounds in KRS 342.125 which allows
for the reopening of a claim. We focus on the two grounds which the Board
found Cunigan satisfied: newly discovered evidence and mistake.
II. THE MRI DOES NOT CONSTITUTE NEWLY DISCOVERED EVIDENCE
UNDER KRS 342.125(1)(b) TO JUSTIFY REOPENING CUNIGAN'S CLAIM
Kuhlman argues that the MRI, which shows the existence of Cunigan's
lumbar injury, is not newly discovered evidence per KRS 342.125(1)(b) to justify
a reopening of his claim. It contends that the MRI cannot be newly discovered
evidence because it did not come into being until the day the original workers'
compensation award was signed by ALJ Justice. In Russellville Warehousing v.
Bassham, 237 S.W.3d 197, 201 (Ky. 2007), we stated:
. . . Black's Law Dictionary 579 (7th ed. 1999) explains that 'newly
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. The decisive effect of evidence
does not arise unless it is properly viewed as being 'newly
discovered.' See Walker v. Farmer, 428 S.W.2d 26 (Ky. 1968).
Bassham's autopsy report was not newly discovered evidence for
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the purposes of KRS 342.125 because it did not exist when
Bassham's award was rendered; therefore, its decisive effect was
immaterial unless another ground existed for reopening.
In this matter, the MRI was not in existence when Cunigan's claim was
decided. Based on our holding in Bassham, we must find that the Board and
Court of Appeals erred by finding that the MRI was newly discovered evidence.
Therefore, Cunigan has not satisfied KRS 342.125(1)(b) to reopen his claim.
III. CUNIGAN'S CLAIM CAN BE REOPENED BASED ON MISTAKE
Kuhlman's last argument is that mistake cannot be used as grounds to
reopen Cunigan's claim. The Board and Court of Appeals found Cunigan made
a prima facie showing of mistake to reopen his award pursuant to KRS
342.125(1)(c) because all of the doctors who examined him believed he suffered
from a hamstring strain and failed to diagnose his disc herniation. Kuhlman
argues that a mistake made by physicians or expert witnesses is not what was
intended to be covered by KRS 342.125(1)(c). Instead Kuhlman contends that
"mistake" in that statute refers to a mutual mistake by the parties. We
disagree.
As written by then Judge Palmore regarding mistake:
[wlhen subsequent events indicate that an award was substantially
induced by a misconception as to the cause, nature or extent of
disability at the time of the hearing, justice requires further
inquiry. Whether it be called a 'mistake' or 'change in conditions'
is a matter of mere semantic taste. The important question is
whether' the man got the relief to which the law entitled him, based
upon the truth as we are now able to ascertain it.
Messer v. Drees, 382 S.W.2d 209, 213(Ky. 1964). Here Cunigan has presented
evidence which potentially indicates that the doctors who examined him
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misdiagnosed his injury. If an expert witness or physician makes an erroneous
diagnosis, which causes the claimant to not receive proper relief, there must be
a mechanism for the claimant to be able to reopen his claim so he may receive
redress. It would be patently unfair for Cunigan to be unable'to reopen his
claim because of a potential misdiagnosis. Additionally Cunigan was a pro se
claimant throughout the original proceeding and as such had limited
knowledge of how to obtain the MRI via the workers' compensation system.
The purpose of workers' compensation is to compensate a worker who was
injured on the job and allowing the reopening of this claim to determine if the
lumbar injury is compensable is within the spirit of that doctrine. While the
ALJ might review the new evidence presented and ultimately decide against
adjusting Cunigan's award, Cunigan has presented sufficient evidence, in the
form of the MRI and Dr. Wheeler's report, to allow his motion to reopen be
granted due to mistake.
Thus, for the above stated reasons, we affirm the Court of Appeals.
All sitting. Minton, C.J.; Abramson, Cunningham, Noble, Keller, and
Scott, JJ., concur. Venters, J., dissents.
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COUNSEL FOR APPELLANT,
KUHLMAN ELECTRIC CORP.:
George T. Kitchen, III
Richard Edwin Neal'
COUNSEL FOR APPELLEE,
REX CUNIGAN:
Roy Church Gray, III
COUNSEL FOR APPELLEE,
JOSEPH W. JUSTICE:
Joseph Wells Justice
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