Summers v. U.S. Liquids, No. 2004-CA-001547-WC (KY 3/4/2005), 2004-CA-001547-WC.
| Decision Date | 04 March 2005 |
| Docket Number | No. 2004-CA-001547-WC.,2004-CA-001547-WC. |
| Parties | DAVID C. SUMMERS APPELLANT v. U.S. LIQUIDS; Honorable SHEILA C. LOWTHER, Administrative Law Judge; and Workers' Compensation Board Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Neil S. Weiner, Louisville, Kentucky, Brief for Appellant.
Thomas L. Ferreri, Louisville, Kentucky, Brief for Appellee U.S. Liquids.
BEFORE: DYCHE, KNOPF, AND MINTON, JUDGES.
To reopen a workers' compensation claim, a claimant must make a prima facie showing of one or more of the statutory grounds for reopening contained in Kentucky Revised Statutes (KRS) 342.125(1) before the claimant is even entitled to a hearing on the merits. KRS 342.125(1)(b) permits reopening on the basis of "[n]ewly-discovered evidence which could not have been discovered with the exercise of due diligence."
David Summers moved to reopen his claim against U.S. Liquids on the basis that he was discharged by that employer after his award was entered. He asserts that evidence of this post-award discharge is newly-discovered evidence within the meaning of KRS 342.125(1)(b). In the alternative, he asserts that the dismissal of his motion to reopen is manifest injustice, which he asserts is a judicially-created ground for reopening. Similarly, he asserts that the dismissal of his motion to reopen is against public policy.1 The Administrative Law Judge (ALJ) dismissed Summers's motion without a hearing for failure to make a prima facie showing for reopening, a decision later affirmed by the Workers' Compensation Board (Board). We agree that Summers has failed to make a prima facie showing of any legitimate ground for reopening. So we affirm the Board's decision.
Summers worked for U.S. Liquids as a maintenance mechanic, a position requiring him to lift up to one hundred pounds, climb stairs and ladders, stoop frequently, walk considerable distances, and be on his feet for several hours at a time. On December 9, 2000, while working for U.S. Liquids, he fell from a portable storage tank, injuring his feet and hips. The only contested issue in Summers's workers' compensation claim was the extent of his permanent occupational disability.
Dr. Mark Petrik, Summers's treating physician, provided the only medical report submitted in the claim. Dr. Petrik stated that Summers would require bracing, analgesics, and ambulatory support for the rest of his life because of permanent injuries to his feet, despite three surgeries to his left foot and one surgery to his right foot. He also anticipated that Summers might require additional surgery. He assigned the following permanent physical restrictions to Summers: no squatting, crouching, or climbing ladders; stair-climbing should be limited to one flight; walking should be limited to 30-40 feet at a time with crutches or a cane; sitting should be limited to 30 minutes at a time; and standing should be limited to 8-9 minutes at a time. Dr. Petrik assessed Summers as having a 40 percent whole-person impairment rating.
Due to accommodations by U.S. Liquids, Summers was able to return to fulltime, light-duty work after his injury; but he was no longer able to perform overtime work. He worked in the office placing orders and going through old paperwork in preparation for the planned installation of a new computer. In his deposition, Summers admitted that he had been told that the office job was not permanent and stated that he did not know how long it would last. In the opinion, order, and award, the ALJ found Summers to have a 40 percent occupational disability, based on Dr. Petrik's report. Notwithstanding Summers's return to light-duty work in an accommodated position, the ALJ also applied the three multiplier found in KRS 342.730(1) based on her finding that Summers lacked the physical capacity to return to the type of work that he performed at the time of the injury.2
Summers alleges that on October 5, 2002, shortly after the workers' compensation order and award was final, he was told that he was being terminated by U.S. Liquids because "the case settled." In September 2003, Summers underwent additional surgery to his right foot because of his work-related injury. On February 2, 2004, Summers filed a motion to reopen his claim based on his post-award discharge by U.S. Liquids. He submitted a follow-up report by Dr. Petrik, which showed that his impairment rating and physical restrictions were unchanged. Summers's motion to reopen was dismissed by the ALJ, without a hearing, for failure to state a claim. Summers appealed to the Board, which affirmed the ALJ's ruling. Summers then petitioned for review in this Court.
Relief from the terms of a final workers' compensation order or award may be obtained only if the claim is reopened in accordance with statutory provisions.3 A claimant seeking to reopen a claim is not automatically entitled to a hearing on the merits.4 The claimant must first "make a reasonable prima facie preliminary showing of existence of a substantial possibility of the presence of one or more of the prescribed conditions" for reopening set forth in KRS 342.125(1).5 Summers asserts that the evidence of his post-award discharge established a prima facie case for reopening under KRS 342.125(1)(b), which permits reopening on the basis of "[n]ewly-discovered evidence which could not have been discovered with the exercise of due diligence."
In the alternative, Summers asserts that he established a prima facie showing to reopen on the basis of "manifest injustice," which he asserts as a judicially-created ground for reopening a workers' compensation claim. Finally, he asserts that public policy requires that he be permitted to reopen his workers' compensation claim after his discharge.
Each of these issues raised by Summers addresses a pure question of law. Upon review, the role of the Court is to correct the Board on matters of law "only where [] the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent."6
There are no published opinions addressing whether "[n]ewly-discovered evidence" within the meaning of KRS 342.125(1)(b) encompasses evidence which did not yet exist when the workers' compensation claim was decided. For the sake of convenience, we shall henceforth describe the later category of evidence as "new evidence."7 We must look to general principles of statutory construction.
The words and phrases of the statute must be construed according to their common and ordinary meaning.8 In order to give full effect to the legislative intent embodied in a statute, construing a statute in such a way as to render a word or phrase mere surplussage is disfavored.9 If newly-discovered evidence includes new evidence, then that portion of KRS 342.125(1)(b) requiring that the evidence "could not have been discovered with the exercise of due diligence" is superfluous. Of course, that which does not exist cannot be discovered. The fact that part of the statute becomes redundant if newly-discovered evidence is considered to include new evidence suggests that this construction is erroneous.
Even when construing unambiguous statutory language, it is proper to look to previous constructions of analogous statutes or rules for guidance.10 The issue of whether newlydiscovered evidence encompasses new evidence has been addressed before in the context of Rule 60.02(b) of the Kentucky Rules of Civil Procedure (CR). CR 60.02(b) permits a party to seek relief from a final judgment or order based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02." When construing this phrase, Kentucky's highest court has stated that "[g]enerally, it is held that facts not in existence at the time of trial do not constitute a ground for a new trial because of newly discovered evidence."11 As this Court has explained, construing newly-discovered evidence in CR 60.02(b) to exclude new evidence serves to advance the overriding "social and institutional interest in reliable, final judgments."12
The same general principles of finality of judgments also apply to workers' compensation claims.13 The fact that the instant case concerns the statutory scheme of workers' compensation, rather than an ordinary civil case, makes it especially important that KRS 342.125(1)(b) not be misconstrued to permit reopening where the General Assembly did not intend to do so.14 This is illustrated in Stephens v. Kentucky Utilities Company in which the Supreme Court addressed whether the provision in KRS 278.440 permitting remand of an order of the Public Service Commission (PSC) on the basis of "newly-discovered evidence" also includes "new evidence."15 The trial court had ordered remand based on new evidence, specifically, evidence of actual operating experience which occurred after the Commission's order.16 The Supreme Court described the trial court's construction as "a judicial amendment to KRS 278.440"17 and, hence, impermissible. The Court also refuted the idea that the trial court had an inherent power to consider new evidence in the interest of properly deciding the matter if considering that evidence violated the legislatively-proscribed means of judicial review of a decision of the PSC.18 The instant case poses a similar situation. The procedures for reopening a workers' compensation award are constrained by statute. We must not construe KRS 342.125(1)(b) in such a fashion as to amend the statute by providing an additional ground for reopening which the legislature did not intend but, rather, construe it as written to reflect the legislative intent therein. Based on the ordinary meaning of the phrase and consistent with previous constructions of analogous language in CR 60.02(b) and KRS 278.440, we hold that newly-discovered evidence within the meaning of KRS 342.125(1)(b) does not...
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