Cedar Lake Park Place v. Penny Berry ( 2021 )

RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0731-WC
CEDAR LAKE PARK PLACE APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-12-83372
PENNY BERRY; HONORABLE
CHRIS DAVIS, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
DIXON, JUDGE: Cedar Lake Park Place (“Cedar Lake”) petitions for review of
the Workers’ Compensation Board (“Board”) opinion vacating and remanding
entered April 3, 2020, as well as the opinion and order resolving a medical fee
dispute and order on reconsideration, entered December 3, 2019, and December
27, 2019, respectively, by Administrative Law Judge (“ALJ”) Chris Davis.
Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Beginning in 2010, Penny Berry was employed on a part-time basis as
a Registered Nurse for Cedar Lake. Over the course of her employment, Berry
began experiencing work-related allergies, asthma, bronchitis, and pulmonary
problems as a result of mold at Cedar Lake’s facility. Over time, her symptoms
worsened, and she eventually had to stop working for Cedar Lake altogether.
Berry’s last date of exposure was October 26, 2012.
On October 26, 2012, Berry filed a Form 101, Application for
Resolution of a Claim-Injury, alleging work-related injuries as described above.
Cedar Lake initially denied Berry’s claims, but it eventually stipulated to the work-
related injuries. On June 27, 2013, an award and order was entered finding Berry
had work-related asthma, and ALJ William J. Rudloff awarded her temporary total
disability, permanent partial disability, and medical benefits. On September 4,
2015, the ALJ entered an amended opinion and order. Berry appealed to the
Board, which affirmed the ALJ on February 5, 2016.
A motion to reopen Berry’s claim and Form 112, Medical Dispute,
were filed on June 4, 2018, alleging that out-of-pocket medical expenses had not
been paid pursuant to the award. Benefit Review Conferences were held on July
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31, 2018, and September 15, 2018, and a hearing was held on October 15, 2019.
The sole issue before ALJ Davis was the timeliness of Berry’s submission of her
medical bills and requests for reimbursement of her co-pays. On December 3,
2019, the ALJ entered an opinion and order finding Berry’s requests for
reimbursement were not submitted until the date of the motion to reopen—
untimely and, thus, non-compensable. Berry petitioned the ALJ to reconsider the
opinion and order. On December 27, 2019, the ALJ entered his order on
reconsideration “correcting” his original finding concerning the date of Berry’s
first request for reimbursement to May 31, 2016, but still finding Berry’s requests
for reimbursement untimely and, therefore, non-compensable.
Berry appealed the ALJ’s orders concerning the medical fee dispute to
the Board. On April 3, 2020, the Board vacated and remanded the ALJ’s orders
due to evidence of record indicating timely submissions of requests for
reimbursement. The Board noted “the record clearly indicates at least two
spreadsheets of out-of-pocket medical expenses plus certain invoices were sent to
Cedar Lake prior to May 31, 2016.” ROA1 1382 (emphasis in original). The
Board vacated “the ALJ’s determination that Berry’s out-of-pocket medical
expenses are untimely and, consequently, non-compensable and remand[ed] the
claim for additional findings.” ROA 1381. This appeal followed.
1
Record on Appeal.
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STANDARD OF REVIEW
The appropriate standard of review for workers’ compensation claims
was summarized in Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866-67 (Ky.
App. 2009).
Appellate review of any workers’ compensation decision
is limited to correction of the ALJ when the ALJ 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). Our standard of review differs in regard to
appeals of an ALJ’s decision concerning a question of
law or a mixed question of law and fact vis-à-vis an
ALJ’s decision regarding a question of fact.
The first instance concerns questions of law or mixed
questions of law and fact. As a reviewing court, we are
bound neither by an ALJ’s decisions on questions of law
or an ALJ’s interpretation and application of the law to
the facts. In either case, our standard of review is de
novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.
App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.
App. 1998). De novo review allows appellate courts
greater latitude in reviewing an ALJ’s decision.
[Purchase Transp. Serv.’s v. Estate of Wilson, 39 S.W.3d
816, 817-18 (Ky. 2001); Uninsured Emp’rs’ Fund v.
Garland, 805 S.W.2d 116, 117 (Ky. 1991)].
The second instance concerns questions of fact.
[Kentucky Revised Statutes (KRS)] 342.285 designates
the ALJ as finder of fact, and has been construed to mean
that the factfinder has the sole discretion to determine the
quality, character, weight, credibility, and substance of
the evidence, and to draw reasonable inferences from the
evidence. Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418, 419 (Ky. 1985); [McCloud v. Beth-Elkhorn
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Corp., 514 S.W.2d 46, 47 (Ky. 1974)]. Moreover, an
ALJ has sole discretion to decide whom and what to
believe, and may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of
whether it comes from the same witness or the same
adversary party’s total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
KRS 342.285 also establishes a “clearly erroneous”
standard of review for appeals concerning factual
findings rendered by an ALJ, and is determined based on
reasonableness. Special Fund v. Francis, 708 S.W.2d
641, 643 (Ky. 1986). Although an ALJ must recite
sufficient facts to permit meaningful appellate review,
KRS 342.285 provides that an ALJ’s decision is
“conclusive and binding as to all questions of fact,” and
that the Board “shall not 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). In short,
appellate courts may not 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).
....
Generally, “arbitrariness” arises when an ALJ renders a
decision on less than substantial evidence, fails to afford
procedural due process to an affected party, or exceeds
her statutory authority. [K & P Grocery, Inc. v.
Commonwealth, Cabinet for Health Serv.’s, 103 S.W.3d
701, 703 (Ky. App. 2002)].
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Substantial evidence is “that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in the mind of a
reasonable person.” Bowling v. Nat. Res. & Envt’l Prot. Cabinet, 891 S.W.2d 406,
409 (Ky. App. 1994). Our standard of review requires us to show considerable
deference to the ALJ and the Board.
ALJ IS FACT-FINDER
On appeal, Cedar Lake contends the Board erred in vacating the
ALJ’s orders, alleging the Board exceeded its authority by making findings of fact
reserved for the ALJ. The Board disagreed with the ALJ’s finding that no request
for reimbursement of Berry’s co-pay was made prior to May 31, 2016.2 That
finding was not supported by the record which, as the Board observed, clearly
contained requests prior to that date.3 We agree with the Board that the ALJ’s
finding concerning the first date of request constituted an abuse of discretion
because that finding is not supported by the record and is, therefore, patently unfair
and unreasonable. Contrary to Cedar Lake’s contentions, the Board did not usurp
the ALJ’s role and make a finding of fact concerning the date(s) of requests for
2
The ALJ admitted in his December 27, 2019, order that he had erroneously found in his
December 3, 2019, order that the date of the first request for reimbursement was not until June 4,
2018.
3
Correspondence in the record demonstrates a letter was sent to Cedar Lake with a spreadsheet
of expenses, dated June 18, 2013; an email was also ostensibly sent to Cedar Lake with updated
out-of-pocket medical expenses dated October 16, 2013.
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reimbursement but, rather, appropriately vacated and remanded these portions of
the ALJ’s orders for further—accurate—findings.
803 KAR 25:096 § 11(2)
Cedar Lake also argues the Board misconstrued controlling precedent
in holding that 803 KAR4 25:096 §11(2)5 does not apply pre-award. The Board
cited to Garno v. Solectron USA, 329 S.W.3d 301 (Ky. 2010), in which the ALJ
entered an interlocutory order finding the claimant’s medical expenses
compensable, but the claimant failed to submit her expenses until after entry of the
final award. Id. at 304. The court held the claimant was required to submit her
medical expenses upon entry of the interlocutory order because “KRS 342.275(2)
authorizes an ALJ to ‘grant or deny any benefits afforded under this chapter,
including interlocutory relief[.]’” Id. at 305.
Here, the Board—citing Garno—opined “[r]egarding any request for
reimbursement made before February 5, 2016, the date ALJ Rudloff’s September
4
Kentucky Administrative Regulations.
5
This section reads:
Expenses incurred by an employee for access to compensable
medical treatment for a work injury or occupational disease,
including reasonable travel expenses, out-of-pocket payment for
prescription medication, and similar items shall be submitted to the
employer or its medical payment obligor within sixty (60) days of
incurring of the expense. A request for payment shall be made on
a Form 114.
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4, 2015, Amended Order was finalized, the 60-day rule in 803 KAR 25:096 §11(2)
is not applicable.” ROA 1384. However, this statement demonstrates at least a
partial misunderstanding of Garno’s holding, which requires submission of
medical expenses following interlocutory awards, if any, as well as final ones. In
the case herein, Berry was awarded medical benefits via an interlocutory order
entered by the ALJ on June 27, 2013. Therefore, the 60-day rule set forth in 803
KAR 25:096 §11(2) applies to medical expenses incurred after June 27, 2013, not
exclusively those incurred after the award became final.
Aside from the error concerning the date on which 803 KAR 25:096
§11(2) became applicable to the claim herein, the remainder of the Board’s
interpretation of controlling precedent and the 60-day submission requirement of
803 KAR 25:096 §11 is reasonable, and we “generally defer to an administrative
agency’s interpretation of its own regulations.” St. Joseph Hosp. v. Littleton-
Goodan, 260 S.W.3d 826, 828 (Ky. 2008). We hold that the mandatory deadlines
specified in 803 KAR 25:096 §11 apply post-award, whether the award is final or
interlocutory, as is the case here. Because medical expenses are not compensable
until an award is entered, it is reasonable that an employee is not required to
submit medical expenses until an award is entered. In light of the Board’s
remaining guidance and ours provided herein, the Board did not err in remanding
this claim to the ALJ for additional—appropriate—analysis in its decision.
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Therefore, we affirm the Board’s opinion remanding this matter to the ALJ for
additional findings of fact concerning the dates of Berry’s requests for
reimbursement and whether they were timely, applying 803 KAR 25:096 §11(2) to
this claim post-interlocutory award as opposed to solely post-final award.
CONCLUSION
For the foregoing reasons, the opinion of the Workers’ Compensation
Board is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE PENNY
BERRY:
Joseph C. Klausing
Priscilla C. Page Wayne C. Daub
Louisville, Kentucky Louisville, Kentucky
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