Kindred Healthcare v. Harper

• Decision Date: 24 March 2022
• Docket Number: 2020-SC-0200-WC
• Citation: 642 S.W.3d 672
• Parties: KINDRED HEALTHCARE, Appellant v. Carlye HARPER; Honorable Douglas W. Gott, Chief Administrative Law Judge; and Workers’ Compensation Board, Appellees
• Court: Supreme Court of Kentucky

642 S.W.3d 672

KINDRED HEALTHCARE, Appellant

v.Carlye HARPER; Honorable Douglas W. Gott, Chief Administrative Law Judge; and Workers’ Compensation Board, Appellees

2020-SC-0200-WC

Supreme Court of Kentucky.

MARCH 24, 2022

COUNSEL FOR APPELLANT: Catherine Ann Poole, Goodrum & Downs PLLC.

COUNSEL FOR APPELLEE, CARLYE HARPER: Rodger W. Lofton, Paducah.

CHIEF ADMINISTRATIVE LAW JUDGE: Douglas W. Gott, Paducah.

WORKERS’ COMPENSATION BOARD: Michael Wayne Alvey.

OPINION OF THE COURT BY JUSTICE NICKELL

Kindred Healthcare appeals the Court of Appeals’ opinion which affirmed the Workers’ Compensation Board's (Board) reversal of a decision by the Chief Administrative Law Judge (CALJ) denying Carlye Harper's motion to reopen her workers’ compensation claim to seek vocational rehabilitation benefits. For the following reasons, we affirm.

I. Factual and Procedural Background

While working as a certified occupational therapy assistant at the Kindred Healthcare nursing home facility in Dawson Springs, Kentucky, Harper suffered a work-related lifting injury to her back and lower extremities while transferring a patient. She thereafter filed an Application for Resolution of a Claim-Injury and the matter was assigned to an Administrative Law Judge (ALJ).

Following submission of proof, a benefits review conference (BRC) was held at which the parties preserved five contested issues, including: (1) work-relatedness and causation; (2) date of maximum medical improvement (MMI); (3) underpayment of temporary total disability (TTD) income benefits as to duration and rate; (4) benefits payable under KRS ¹ 342.730 ; and (5) physical capacity to return to work performed at the time of her injury. Harper did not specifically identify vocational rehabilitation as a contested issue.

At the hearing, Harper testified she would be interested in obtaining vocational rehabilitation services to qualify for less physically demanding employment. Her brief included a request for evaluation regarding appropriateness of vocational rehabilitation services.

In the Opinion, Order and Award, the ALJ weighed conflicting medical evidence and found Harper's low back and left hip conditions were causally related to her work injury at Kindred Healthcare. The ALJ also determined the date on which Harper reached MMI and, based on the parties’ stipulation regarding average weekly wage, found an underpayment of TTD income benefits as to both duration and rate. Further, the ALJ determined Harper had sustained an eight percent whole person impairment based on the AMA Guides.² Because the ALJ found Harper did not retain the capacity to return to work performed at the time of the injury, the award of permanent partial disability (PPD) income benefits was enhanced by application of the triple multiplier mandated in KRS 342.730(1)(c). However, though KRS 342.710(3) similarly mandates consideration of vocational rehabilitation services "[w]hen as a result of the injury [a worker] is unable to perform work for which he or she has previous training or experience," the ALJ instead held, "[t]he issue of vocational rehabilitation is not before the ALJ at this time, as it was not preserved as a contested issue at the BRC or Hearing." After Kindred Healthcare's petition for reconsideration was overruled, neither party appealed and the award became final.

Thereafter, Harper attempted to find other suitable employment. In the coming months, however, she was able to find only short-term, menial work as a part-time sales associate at a clothing store and an as-needed social media advertiser at a boutique. For the most part, she remained unemployed. Ultimately, she obtained an independent evaluation through the Kentucky Office of Vocational Rehabilitation which agreed she was incapable of performing her previous work but determined she would, in fact, benefit from vocational rehabilitation services.

Based on the foregoing, approximately sixteen months after entry of the ALJ's Opinion, Order, and Award, Harper sought to file an application for vocational rehabilitation services under KRS 342.710, including acceleration of her income benefits during the two years required for undergoing college retraining to become a social worker. Because no official template existed specifically relating to vocational rehabilitation services, she utilized a form designed for filing motions to reopen pursuant to KRS 342.125. However, she did not check off which of the form's four grounds for reopening might apply, explaining "[t]his is an application for vocational rehabilitation benefits" and "not a motion to reopen as provided in KRS 342.125." Harper attached a separate Motion for Vocational Rehabilitation emphasizing it was being brought pursuant to KRS 342.710, along with her Affidavit setting forth her post-award inability to return to suitable work and referencing the independent vocational evaluation obtained from the Kentucky Office of Vocational Rehabilitation. She also attached a copy of the extensive vocational evaluation, itself, which confirmed Harper was a good candidate for such training.

The CALJ overruled Harper's motion to reopen "because an attempt to obtain vocational rehabilitation benefits is not a cause to reopen under KRS 342.125(1), and because she waived a claim to those benefits in the original litigation" due to not having preserved the matter as a contested issue at the BRC. In overruling Harper's petition for reconsideration, the CALJ rejected Harper's effort to distinguish the mere request for a vocational evaluation contained in her original brief and her claim for vocational rehabilitation services under KRS 342.710 raised in her motion to reopen. The CALJ again held Harper was precluded from pursuing vocational rehabilitation services due to having failed to preserve the issue and seek such an award "in the original litigation" or to demonstrate entitlement upon reopening "under one of the grounds permitted by KRS 342.125."

Harper appealed to the Board asserting the CALJ's holdings were contrary to the language of KRS 342.710 mandating consideration of vocational rehabilitation services whenever an injured worker is found incapable of returning to work for which he or she has previous training or experience. She argued her post-award claim for vocational rehabilitation services under KRS 342.710(3) represents a ground for reopening independent of those listed under KRS 342.125(1) and one which can be raised at any time, whether during the original action or upon reopening. In addition, she asserted her reopening for such services was not barred by claim preclusion because its merits were not addressed in the original proceedings.

In reversing the CALJ's decision, the Board acknowledged "there is little or no authority construing KRS 342.710 in conjunction with KRS 342.125." However, the Board held the language of " KRS 342.710 contemplates ... grounds for reopening other than those set forth within KRS 342.125(1)."

On appeal, the Court of Appeals recognized "vocational rehabilitation benefits provided in KRS 342.710 do not fall neatly within the category of contested issues advanced in a claim" and "procedures established by the Department of Workers’ Claims envision an informal disposition of vocational rehabilitation benefits, requiring intervention by an ALJ only where the parties disagree." More specifically, the Court of Appeals recognized KRS 342.710 mandates whenever an injured worker is found incapable of performing previous employment an ALJ must "inquire whether such services have been voluntarily offered and accepted" and authorizes the ALJ to order a vocational evaluation "on his or her own motion, or upon application of any party or carrier" and to adjudicate disputes relating to such services. The Court proceeded to affirm the Board's decision, holding it "advances the statutory goal of restoring injured workers to gainful employment," and agreed "Harper's failure to appeal the ALJ's refusal to consider her request for a vocational evaluation did not preclude her from seeking vocational rehabilitation services post-award." This appeal followed.

Before this Court, Kindred Healthcare argues the Court of Appeals erred in affirming the Board's reversal of the CALJ's denial of Harper's application for vocational rehabilitation services. First, it argues the Court of Appeals erred in recognizing workers’ compensation claimants have an independent post-award statutory right to seek vocational rehabilitation services by means of a motion to reopen under KRS 342.710(3) absent one of the four bases enumerated in KRS 342.125(1). Second, it argues the Court of Appeals erred in affirming the Board's reversal of the CALJ's holding that Harper's claim for vocational rehabilitation services was precluded due to her having failed to preserve the matter as a contested issue during the original action and in not timely appealing the ALJ's original denial of such benefits. Finally, it argues the Court of Appeals erred in permitting Harper's appeal to proceed though she failed to properly serve it with the motion to reopen.

II. Standard of Review

Workers’ compensation is a creature of statute. Campbell v. Universal Mines , 963 S.W.2d 623, 624 (Ky. 1998). Statutory construction is a matter of law which requires de novo review by this Court. Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp. , 238 S.W.3d 644, 647 (Ky. 2007). When reviewing a workers’ compensation decision, our well-established standard 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." W. Baptist Hosp. v. Kelly , 827 S.W.2d 685, 687-88 (Ky. 1992). Review by this 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." Id. at...