Westvaco Corp. v. Fondaw, 84-SC-824-DG

Decision Date31 October 1985
Docket NumberNo. 84-SC-824-DG,84-SC-824-DG
Citation698 S.W.2d 837
PartiesWESTVACO CORPORATION and Fred S. James & Company, Movants, v. Gary FONDAW, Respondent.
CourtUnited States State Supreme Court — District of Kentucky

Earle T. Shoup, Peck, Jackson & Shoup, Paducah, for movants.

James W. Owens, Paducah, for respondent.

STEPHENSON, Justice.

The controversy in this appeal arises over a dispute as to whether certain medical charges were reasonable. The trial court determined that there was a factual issue which should be determined by the Workers' Compensation Board. The Court of Appeals reversed. We granted discretionary review and reverse the decision of the Court of Appeals.

Gary Fondaw received an award from the Workers' Compensation Board for disability. The award contained the standard language awarding medical expenses for the duration of the disability.

Fondaw presented medical bills and travel expenses, which Westvaco declined to pay. Fondaw filed suit to enforce payment in circuit court. Westvaco answered that the medical expenses were not related to the injury, the travel expenses were at a rate in excess of the authorized rate, and that there was no justification for the travel expense.

The trial court determined that a factual question existed as to the eligibility of some of the claimed items of expenses and the reasonableness of other items. The trial court was of the opinion the Workers' Compensation Board was the proper tribunal to resolve the factual dispute.

The Court of Appeals reversed, holding that it is incumbent upon the employer to initiate consideration of the reasonableness issue before the Workers' Compensation Board, and having failed to do so, the employer is estopped from disputing the claim.

Fondaw argues that these medical bills were incurred during the period when the matter was litigated before the Workers' Compensation Board. He relies upon the fact that Westvaco did not make an issue of these bills before the Board.

Fondaw would distinguish Brown Badgett v. Calloway, Ky., 675 S.W.2d 389 (1984), from this case on the ground that the medical bills here were in existence prior to the award, whereas in Brown Badgett, the medical bills were incurred after the award.

We have examined the record and observe that the dates of the medical bills are near the date of the award by the Board. It appears that the employer did not have an opportunity to present the dispute over the bills to the Board. It is elementary that any medical bills presented to the employer during the pendency of the proceedings before the Board must be contested before the Board and thus could not be disputed later in circuit court in a proceeding to enforce the award. KRS 342.305.

We are of the opinion the trial court...

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    ...the complaining party petition the Board to resolve the dispute. Brown Badgett has been extended in Westvaco Corporation and Fred S. James & Company v. Fondaw, Ky., 698 S.W.2d 837 (1985) to require the complaining party to petition the Board to resolve the While the language of the exclusiv......
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    ...of a procedure to be followed in [medical fee disputes]." We also considered the Supreme Court's decision in Westvaco Corp. v. Fondaw, 698 S.W.2d 837, 839 (Ky. 1985), wherein that Court required employers who wish to challenge a medical or drug bill to file a motion to reopen. In construing......
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