Dreisbach Wholesale Florists, Inc. v. Donald Leitner ( 2022 )

RENDERED: NOVEMBER 10, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1495-WC
DREISBACH WHOLESALE
FLORISTS, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-94806
DONALD LEITNER; HONORABLE
DOUGLAS GOTT, CHIEF
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION APPELLEES
BOARD
OPINION
REVERSING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Appellant, Dreisbach Wholesale Florists, Inc. (Dreisbach)
appeals the Workers’ Compensation Board’s (Board) November 19, 2021 opinion
reversing the Administrative Law Judge’s (ALJ) denial of Appellee Donald
Leitner’s motion to reopen his workers’ compensation award. The Board
determined Leitner made a prima facie showing of mistake pursuant to KRS1
342.125(1)(c) as to claimed injuries to his neck. Finding error, we reverse.
BACKGROUND
Leitner worked as a delivery driver for Dreisbach. While making a
delivery on February 6, 2017, another vehicle crossed the center line and collided
head-on with Leitner’s delivery van. Leitner rode in an ambulance to the
University of Louisville Hospital following the accident. He complained of pain in
his neck, right shoulder, left knee, left ribs, and back. Hospital staff instructed him
to follow up with his primary care physician.
Beginning the next day, February 7, 2017, Leitner made his first of
several visits to BaptistWorx, a medical practice group in Louisville. BaptistWorx
placed Leitner on work restrictions and referred him to Dr. Kuiper, an orthopedic
specialist, for his left knee pathology. Dr. Kuiper operated on Leitner’s left knee
and prescribed physical therapy. Dr. Kuiper ultimately returned Leitner to work
with no restrictions but observed Leitner had some residual pain in his knee.
Leitner filed an application for resolution of an injury claim on
October 26, 2017. With his application, Leitner included a required medical
history form wherein he stated he received treatment for his neck at University of
Louisville Hospital, BaptistWorx, and Louisville Orthopedic Center. In a
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Kentucky Revised Statutes.
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December 18, 2017 deposition, Leitner testified he saw his primary care physician
for neck pain after the accident. He also testified to ongoing neck pain which
prevented him from turning his head to the right.
Dr. David Waespe performed an independent medical evaluation of
Leitner on December 30, 2017. He assessed Leitner as having one percent whole
person impairment for his right shoulder injury, four percent for his left knee, and
two percent for continued pain that limited his daily activities and ability to work.
Overall, Dr. Waespe assessed Leitner as having seven percent whole person
impairment and assigned Leitner work restrictions. He did not think Leitner could
return to the sort of job he was performing previously due to his left knee and right
shoulder impingement. He also observed that Leitner’s neck was tender to the
touch; however, despite his examination, Dr. Waespe did not find any impairment
of Leitner’s neck.
Dr. Gregory Gleis performed an independent medical evaluation of
Leitner on February 7, 2018 and determined he had a four percent whole person
impairment. Dr. Gleis determined that, although Leitner had subjective pain, there
was no objective medical evidence of a residual injury. He determined Leitner’s
left knee had no deficiency in function, despite previous knee surgery. Leitner
informed Dr. Gleis his neck pain was his primary concern, and that Leitner was
previously referred to a specialist for degenerative disk disease, cervical radiculitis,
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and neck pain. Dr. Gleis also reviewed a CT scan that revealed problems with
Leitner’s cervical vertebrae. Despite this, Dr. Gleis found no permanent worsening
of a neck injury or condition and therefore did not recommend surgery on Leitner’s
neck; however, he did note in his report Leitner had constant right neck pain.
Leitner’s injury claim was litigated at a final hearing. He testified to
left knee soreness, to pain in his left lower extremity, and to constant right neck
and shoulder pain.
ALJ Neal determined in his June 11, 2018 opinion and order that
Leitner was only entitled to compensation for his medical expenses arising from
injury sustained to his left knee and right shoulder. Though he acknowledged
Leitner had ongoing neck pain and that Dr. Gleis found Leitner’s neck conditions
had not permanently worsened, he reached no conclusion in his order regarding
Leitner’s neck. There was no appeal to the full Board.
Leitner continued to have shoulder pain. Leitner underwent a cervical
decompression and fusion operation on October 22, 2018, which was unsuccessful
in resolving his pain. However, Leitner received another decompression procedure
on his neck in July 2020, which relieved his shoulder pain. Leitner then obtained
an expert opinion from Dr. Nazar, who opined that Dr. Waespe incorrectly
determined Leitner had no impairment in his neck. In his report, Dr. Nazar stated
his belief that Leitner’s right shoulder pain was likely misdiagnosed, and that
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Leitner’s shoulder pain was likely pain resulting from his neck maladies. Dr.
Nazar assessed a 29 percent whole person impairment for Leitner’s neck and
recommended permanent restrictions.
In April 2021, Leitner then filed his motion to reopen his workers’
compensation claim. He argued that (1) he did not receive adequate consideration
of his alleged neck injury from the original ALJ and (2) newly discovered evidence
supported reopening. Leitner included Dr. Nazar’s report in support of his motion.
ALJ Gott denied Leitner’s motion in an order dated June 21, 2021.
Therein, he determined Leitner could not reopen his claim on the basis of a neck
injury that was “alleged, but not proven, awarded, or appealed.” The ALJ held
Leitner had not met his burden of proving his neck injury when originally seeking
compensation for his injuries, and therefore was not entitled to “another bite at the
apple[.]” And, the ALJ determined Dr. Nazar’s report did not constitute newly
discovered evidence, reasoning that just because the report was generated after his
claim for his neck injury was denied does not mean the report’s findings could not
have been discovered by the exercise of due diligence prior to the hearing.
Leitner then filed both a petition for reconsideration and a motion to
amend his motion to reopen. He sought to amend his motion and reopen his claim
on the basis of (1) mistake and (2) a change of condition. ALJ Gott rejected both
the petition and the motion on July 23, 2021. The ALJ determined Dr. Nazar’s
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report provided an insufficient basis to reopen Leitner’s claim. Though Dr. Nazar
believed Leitner’s shoulder pain was attributable to a neck injury, the ALJ noted
Leitner had listed neck injury in his original injury claim and that Dr. Gleis already
evaluated Leitner’s neck. The ALJ also determined Dr. Nazar’s report did not
support reopening for a change in condition. Because the June 11, 2018 order
found Leitner was not entitled to compensation for any neck injury, any worsening
of a neck injury could not support reopening his claim.
However, the Board issued an order on November 19, 2021, affirming
in part and reversing in part the order denying Leitner’s motion to reopen, and
remanded the matter to ALJ Gott with instructions to sustain Leitner’s motion.
The Board determined Leitner’s motion was not barred by res judicata because he
had made a prima facie showing of mistake as to the finding that he had not
sustained a compensable neck injury.
Dreisbach now appeals the Board’s order, arguing the Board erred in
determining Leitner’s motion was not barred by res judicata on the basis of
mistake.
STANDARD OF REVIEW
KRS 342.285 designates the ALJ as the finder of fact in workers’
compensation actions. KRS 342.285(2). “[A]s the fact-finder, the ALJ, not this
Court and not the Board, has sole discretion to determine the quality, character,
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and substance of the evidence.” Abbott Lab’ys v. Smith, 205 S.W.3d 249, 253 (Ky.
App. 2006) (citing Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999)). “Not
only does the ALJ weigh the evidence, but the ALJ may also choose to believe or
to disbelieve any part of the evidence, regardless of its source.” Id. (citing
Whittaker, 998 S.W.2d at 481).
“The [B]oard shall not substitute its judgment for that of the [ALJ] as
to the weight of evidence on questions of fact[.]” KRS 342.285(2). Because the
ALJ may disregard some evidence while believing other evidence, the Board may
not disturb the ALJ’s decisions if conflicting evidence underlies the ALJ’s
findings; when the Board reviews ALJs’ decisions, it is tasked with deciding
“whether the evidence is sufficient to support a particular finding made by the
ALJ, or whether such evidence as there was before the ALJ should be viewed as
uncontradicted and compelling a different result.” Western Baptist Hosp. v. Kelly,
827 S.W.2d 685, 687 (Ky. 1992). The Board’s review is limited to determining
whether the ALJ acted within his or her powers, whether the result was procured
by fraud, whether the result conforms with KRS Chapter 342, whether the result
“is clearly erroneous on the basis of the reliable, probative, and material evidence
contained in the whole record[,]” and whether the result “is arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.” KRS 342.285(2)(a)-(e).
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“The scope of review by the Court of Appeals shall include all matters
subject to review by the [B]oard and also errors of law arising before the [B]oard
and made reviewable by the rules of the Supreme Court for review of decisions of
an administrative agency.” KRS 342.290. “When reviewing one of the Board’s
decisions, [the appellate] Court will only reverse the Board’s decision when it has
overlooked or misconstrued controlling law or so flagrantly erred in evaluating the
evidence that it has caused gross injustice.” Abbott Lab’ys, 205 S.W.3d at 253
(citing Western Baptist, 827 S.W.2d at 687-88).
ANALYSIS
“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.”
Slone v. R & S Mining, Inc., 74 S.W.3d 259, 261 (Ky. 2002). But, res judicata is
not ironclad, and KRS 342.125 permits reopening final workers’ compensation
awards on grounds of fraud, newly discovered evidence which could not have been
discovered upon the exercise of due diligence, mistake, or change of disability.
KRS 342.125(1)(a)-(d). “Reopening is the remedy for addressing certain changes
that occur or situations that come to light after benefits are awarded.” Dingo Coal
Co. v. Tolliver, 129 S.W.3d 367, 370 (Ky. 2004).
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In its petition, Dreisbach contends the Board abused its discretion in
reversing ALJ Gott’s order denying Leitner’s motion to reopen his award and
believes ALJ Gott’s opinion overruling Leitner’s motion should be reinstated.
Dreisbach notes that ALJ Neal considered conflicting evidence regarding Leitner’s
neck injury and found lacking the evidence presented in support of a compensable
neck injury, but finding the evidence to the contrary conclusive of the issue. It
therefore argues the Board failed to defer to ALJ Neal in his role as finder of fact
by reopening the case to allow presentation of evidence discoverable before the
hearing ALJ Neal conducted. We agree.
When an ALJ considers extensive, but conflicting, evidence regarding
a workers’ compensation claim in making his ruling upon a final hearing, a
subsequent medical opinion that could have been obtained prior to the close of
evidence will not justify reopening the case on the ground of “mistake” as
contemplated by KRS 342.125(1)(c); res judicata still prevents reopening of an
already final award. Russellville Warehousing v. Bassham, 237 S.W.3d 197, 202-
03 (Ky. 2007). In other words, “the purpose of the ‘mistake’ provision is not to
give the losing party an opportunity to ‘bring up reinforcements’ and relitigate the
claim but rather to correct a decision that was the product of a misconception
concerning the worker’s actual condition.” Slone, 74 S.W.3d at 262 (quoting
Messer v. Drees, 382 S.W.2d 209, 213 (Ky. 1964)).
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In Russellville Warehousing v. Bassham, a workers’ compensation
claimant was exposed to manganese dust for approximately seven years during his
employment, which caused his health to deteriorate until he was unable to feed
himself or move on his own. 237 S.W.3d at 198. When ruling on the claimant’s
application for benefits, the ALJ heard testimony from multiple doctors who had
reached differing conclusions regarding what caused the claimant’s condition –
including diagnoses of Parkinson’s disease, progressive ataxia resulting from acute
manganese toxicity, and viral or prion diseases. Id. at 198-200. The ALJ
determined the claimant suffered from a neurological disease resulting from
occupational hazards posed by manganese exposure and awarded total disability.
Id. at 200. The claimant then died, and an autopsy confirmed manganese
poisoning as cause of death. Id. However, the employer’s expert concluded “the
autopsy data did not support a diagnosis of manganese toxicity and that pathologic
examination indicated that Bassham appeared to have suffered from a slow virus.”
Id. at 201. On that basis, the employer moved to reopen the ALJ’s decision and
revoke all awards on the basis of newly discovered evidence or mistake. Id.
The Court in Bassham explained 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.” Id. The evidence offered in this case for
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reopening does not satisfy that definition because Dr. Nazar’s report could have
been generated before the hearing. Dr. Nazar’s report, as the Court in Bassham
would denominate it, is “post-award evidence that the finding was mistaken” but
such evidence “did not show a ‘mistake’ within the meaning of KRS 342.125.” Id.
at 203. The mistake provision of KRS 342.125(1)(c) “is not an invitation to retry a
litigated claim and that litigation must end when a decision becomes final unless
extraordinary circumstances exist[,]” said the Kentucky Supreme Court when it
affirmed the ALJ’s refusal to reopen the award. 237 S.W.3d at 202.
The Court further explained that, because the cause of Bassham’s
disability was “hotly contested” initially and because the parties offered extensive,
but conflicting, evidence of the cause of his disability – including extensive
evidence of prion or other disease – the ALJ did not err in finding there had been
no prima facie showing of mistake sufficient to reopen the award. Id. As in
Bassham, Leitner’s neck injury was a hotly contested issue before ALJ Neal, with
conflicting evidence presented for and against compensation. Leitner complained
of neck pain to multiple doctors, and the ALJ considered the findings and
testimony of those doctors. Dr. Waespe found no impairment in Leitner’s neck.
Dr. Gleis also made this finding, despite a scan which showed some degree of
malady in Leitner’s cervical spine. The ALJ also considered the fact Leitner
complained of neck pain to his primary care physician after the accident, and
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Leitner experienced pain when turning his head to the right. The ALJ considered
these and other conflicting findings regarding Leitner’s neck, but ultimately found
Dr. Gleis’ and Dr. Waespe’s conclusions to be more convincing. The ALJ – not
the Board – is tasked with assigning weight to evidence, and the Board therefore
misapplied controlling law by assuming the ALJ’s role.
Subsequent medical findings are insufficient to disturb an ALJ’s
findings regarding conflicting evidence, and thus Dr. Nazar’s report did not
provide a basis to usurp ALJ Neal in his role as fact finder. The Board misapplied
controlling law in reaching the opposite conclusion.
Dr. Nazar’s report does not suddenly make evidence of Leitner’s
claimed neck injury uncontradicted, and therefore the Board erred in determining
the ALJ was compelled to reach a different result than he did. Our review reveals
the Board misapplied controlling law by substituting its factual findings for those
of the ALJ; the ALJ is empowered to believe or disbelieve evidence, not the Board.
Res judicata saves Dreisbach from relitigating an issue already known and
considered by the ALJ and, therefore, we must reverse the Board’s order.
CONCLUSION
For the foregoing reasons, we reverse the Board’s November 19, 2021
opinion requiring the ALJ to reopen Leitner’s award.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Joel W. Aubrey Paul A. Brizendine
Michelle Enoch Jeffersonville, Indiana
Louisville, Kentucky
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