Sherri Doom v. McCracken County Board of Education ( 2023 )

RENDERED: OCTOBER 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0482-WC
SHERRI DOOM APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-19-50668
MCCRACKEN COUNTY BOARD OF
EDUCATION; COMMONWEALTH
OF KENTUCKY WORKERS’
COMPENSATION BOARD; AND
HONORABLE STEPHANIE L.
KINNEY, ADMINISTRATIVE LAW
JUDGE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
KAREM, JUDGE: Sherri Doom (“Doom”) petitions this Court for review of the
decision of the Workers’ Compensation Board (the “Board”) affirming an
Administrative Law Judge’s (“ALJ”) Opinion and Order dismissing her claims for
permanent income or medical benefits. The ALJ based the dismissal on Doom’s
failure to submit a causation opinion supporting her allegations that a work
accident caused a permanent injury and necessitated lumbar fusion surgery.
Following a review of the facts and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
In 1998, Doom underwent lumbar fusion surgery at the L4-L5 level
for an injury sustained when she fell from a truck she was inspecting. The facts as
outlined by the ALJ are not in dispute:
[After the 1998 surgery], she was physically unable to
return to her work in the trucking industry. She then
started selling insurance. She began working with
Kentucky Farm Bureau in 2003. Doom drove a school
bus for McCracken County from 2008 to 2013, in
addition to her work as an insurance agent. She returned
to work for McCracken County in 2018 as a bus monitor
where she earns $11.97 per hour. She occasionally
drives a school van for student trips.
Doom underwent a revision discectomy at the L4-
L5 level in 2008 or 2009. . . .
On December 17, 2019, Doom was directed to
report to the local Kentucky Transportation Cabinet
office for a random drug screen. She stated the office
was in a temporary location, and there were no handrails
along the steps. She missed a step as she was exiting the
office, fell forward and caught herself on her hands and
knees. . . . She returned to work and continued working
until her April 2021 [L4-L5 lumbar fusion] surgery. She
missed approximately two and a half months of work
after the fusion surgery, returning in July 2021. She has
missed no additional work since returning from the
surgery. She testified the 2021 surgery resolved her low
back pain.
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Dr. K. Brandon Strenge (“Dr. Strenge”) was Doom’s treating physician and
performed staged revisions to the lumbar fusion at L4-L5 on April 14, 2021, and
April 19, 2021.
On November 23, 2021, Doom filed an Application for Resolution of
Injury Claim (“Form 101”) with the Kentucky Department of Workers’ Claims
wherein Doom identified Dr. Strenge as the physician “whose report will be
provided[.]” Dr. Strenge did, in fact, author a report dated October 9, 2021, which
provided an opinion on causation and permanent impairment. As required, Doom
provided a Medical Waiver and Release (“Form 106”) with which her employer
could obtain her medical records.
On February 23, 2022, Dr. Magone, an independent medical
evaluator, examined Doom. Dr. Magone listed correspondence from Dr. Strenge,
dated October 9, 2021, as a source document in the Independent Medical
Evaluation Report. However, this report was never submitted to the ALJ for
consideration before the final hearing. At the final hearing, conducted by video
conference, the following exchange took place:
ALJ: Well, then let me take a moment to review the
evidence that’s been submitted in this claim. We’ll start
with the form 101 since that is the pleading that sort of
gets everything going. So, [attorney for Doom], you
filed the form 101 on Ms. Doom’s behalf that included
various attachments. Then it looks like you filed some
wage records, as well. Did you file anything else, sir?
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DOOM’S ATTORNEY: I’m just trying to make sure Dr.
Strenge’s report was attached to the 101.
ALJ: You can look if you would like, sir.
DOOM’S ATTORNEY: I’m double checking. I just
want too (sic) make sure that I did that. Yeah, it’s in the
record. It looks like actually [defense counsel] filed it.
ALJ: So again, we have form 101 with attachments and
then filings regarding wage records. You didn’t file
anything else; is that correct, sir?
DOOM’S ATTORNEY: That is correct.
ALJ: Now, [defense counsel], on behalf of McCracken
County Board of Education, you’ve deposed Ms. Doom
previously. I note that transcript had four exhibits; does
that sound correct?
DEFENSE COUNSEL: Exactly right.
ALJ: We’ve got it looks like three filings from
Orthopedic Institute of Western Kentucky?
DEFENSE COUNSEL: Yes.
ALJ: We’ve got an AWW post as well as an AWW1.
We have a report from Doctor Magone, M-A-G-O-N-E.
We also have some records of reports from Nelson
Chiropractic as well as a report from Doctor Darryl, D-
A-R-R-Y-L, Thomas, T-H-O-M-A-S. Does that cover
everything that the defendant filed?
DEFENSE COUNSEL: Your Honor, that covers
everything.
Following the hearing, and pursuant to ALJ order, Doom filed a brief
that mistakenly referenced Dr. Strenge’s report as having been filed with the Form
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101. “‘Again, the patient was essentially asymptomatic prior to the work injury
and the work injury is what brought her symptoms into reality requiring surgery
after failing attempts at conservative measures.’ Report of Dr. Strenge, filed with
Form 101.” (Emphasis in original.)
The ALJ rendered her opinion on October 11, 2022, and it was not
until after the ALJ dismissed the claim for lack of a supporting opinion that Doom
realized the omission of the pertinent opinion from Dr. Strenge. Doom filed a
Petition for Reconsideration on October 19, 2022, attaching Dr. Strenge’s
correspondence in an effort to correct the prior omission. Doom argued that her
attorney believed he had filed Dr. Strenge’s letter with the Form 101. Doom
further argued her counsel’s belief was bolstered by the failure of defense counsel
to file a motion to dismiss or seek summary disposition of the matter. Further,
Doom maintained that her employer was not prejudiced by failing to attach the
report because she believed Dr. Magone had a copy of it prior to filing his
Independent Medical Evaluation Report. Doom asked that she not fall victim to
procedural rules based on her attorney’s mistaken belief that he had timely filed
Dr. Strenge’s letter.
The ALJ overruled the motion as failing to set forth any patent errors.
Doom then filed a notice of appeal with the Board. Subsequently, the Board
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entered an opinion affirming the ALJ regarding Dr. Strenge’s letter. This appeal
followed.
ANALYSIS
Before addressing the substance of the arguments on appeal, we begin
by discussing Doom’s conformity, or lack thereof, with the appellate rules of
procedure. Doom’s brief does not “contain at the beginning of the argument a
statement with reference to the record showing whether the issue was properly
preserved for review and, if so, in what manner.” Kentucky Rule of Appellate
Procedure (“RAP”) 32(A)(4).
“Compliance with [RAP 32(A)][1] is mandatory.” Smothers v. Baptist
Hospital East, 468 S.W.3d 878, 881 (Ky. App. 2015) (citation omitted). The
purpose of this rule is to ensure “that we, the reviewing Court, can be confident the
issue was properly presented to the trial court and therefore, is appropriate for our
consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, [RAP 31(H)(1)][2]; or (3) to review the issues raised in the
1
Kentucky Rule of Civil Procedure (“CR”) 76.12 has been replaced with a nearly identical
provision about requiring preservation statements contained in the new Rules of Appellate
Procedure effective January 1, 2023.
2
CR 76.12(8) has been replaced with RAP 31(H)(1): “A brief may be stricken for failure to
substantially comply with the requirements of these rules.”
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brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)).
In this case, Doom made a due process argument for the first time on
appeal to this Court and failed to state in her brief where this argument was
preserved for our review. Due to this failure to provide the required preservation
statement, we decline to address Doom’s due process argument.
However, because the record is small, we have determined Doom
preserved her argument regarding whether the case should be sent back to the ALJ
for findings of fact and a determination of whether excusable neglect occurred.
Therefore, we will ignore the deficiency and proceed with a review of this
argument.
a. Standard of Review
In Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233 (Ky. 2019), the
Supreme Court stated:
The well-established standard of review for the
appellate courts of a workers’ compensation decision “is
to correct the [Workers’ Compensation] 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.” E.g., Western Baptist Hosp.
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler’s
Fleet Serv. v. Martin, 173 S.W.3d 628, 631 (Ky. App.
2005); Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky.
App. 2004). See also Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986) (if the fact-finder finds in
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favor of the person having the burden of proof, the
burden of appeal is only to show that there was some
substantial evidence to support the decision); cf. Gray v.
Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (if the ALJ
finds against the party having the burden of proof, the
appellant must “show that the ALJ misapplied the law or
that the evidence in her favor was so overwhelming that
it compelled a favorable finding”).
Id. at 237-38.
b. Discussion
Throughout the record, Doom readily admits that the failure to submit
Dr. Strenge’s causation letter was an oversight on her part. As such, she motioned
the ALJ to reopen her claim under Kentucky Revised Statute (“KRS”) 342.125
based on excusable neglect, asking that the ALJ reassess her claim and consider
Dr. Strenge’s opinion regarding causation.
KRS 342.125 states:
(1) Upon motion by any party or upon an administrative
law judge’s own motion, an administrative law judge
may reopen and review any award or order on any of the
following grounds:
(a) Fraud;
(b) Newly-discovered evidence which could not have
been discovered with the exercise of due diligence;
(b) Mistake; and
(d) Change of disability as shown by objective
medical evidence of worsening or improvement of
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impairment due to a condition caused by the injury
since the date of the award or order.
(Emphasis added.)
While KRS 342.125(1)(c) lists “mistake” as a valid ground for
reopening a claim, the statute does not contain the specific term “excusable
neglect.” However, Doom argues the justification for reopening a non-Workers’
Compensation judgment via CR 60.023 can be equated to reopening a Workers’
Compensation Claim under KRS 342.125(1)(c), citing Wheatley v. Bryant Auto
Service, 860 S.W.2d 767 (Ky. 1993).
In Wheatley, an ALJ had previously found the employee permanently
disabled from a work-related wrist injury. Id. at 768. The ALJ awarded a twenty-
five percent disability for so long as Wheatley was disabled, but for a period not to
exceed 425 weeks. Id. Thirty-five days later, the ALJ realized he had mistakenly
3
CR 60.02:
On motion a court may, upon such terms as are just, relieve a party or his legal
representative from its final judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence;
(d) fraud affecting the proceedings, other than perjury or falsified evidence; (e)
the judgment is void, or has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment should have prospective application; or (f)
any other reason of an extraordinary nature justifying relief. The motion shall be
made within a reasonable time, and on grounds (a), (b), and (c) not more than one
year after the judgment, order, or proceeding was entered or taken. A motion
under this rule does not affect the finality of a judgment or suspend its operation.
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applied the 425-week duration of benefits limitation to the claim. Id. The ALJ
subsequently amended the order to reflect that benefits would continue for so long
as Wheatley was disabled, as provided by the statute in effect at the time of injury.
Id.
The employer appealed to the Board, arguing that the ALJ erred in
reopening the case. Id. In considering the litigants’ arguments, the Supreme Court
recognized that applying the laws, as they were interpreted at the time, could end
in injustice for the employee:
Apparently, the seminal case in Kentucky
establishing that the reopening statute (then Kentucky
Statutes § 4902) for workers’ compensation claims may
be invoked for mistakes of law as well as fact is Stearns
Coal & Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d
518 (1936). There we said, at 519:
Clearly, if a mistake of law is “good cause”
for review of an order or decision of the
board, it is not perceived why our statute
authorizing a review on the ground of
mistake should not include mistakes of law
as well as fact. Indeed, the plain purpose of
the statute is to enable the board to deal with
the situation in such a way as to prevent an
injustice being done. We therefore conclude
that, unless the case has been passed on by
the court on appeal, the board may at any
time within the period for which
compensation is allowed change or revoke
any order on the ground of mistake of law.
(Emphasis added.)
....
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Here we believe that the ALJ was acting properly
and in the interest of justice when he availed himself of
the statutory remedy set out in KRS 342.125 to correct
his admitted mistake in applying the law in this
compensation proceeding, just as could have been done
under CR 60.02 had it been a civil proceeding. Since the
authority for correcting this mistake was statutory, there
was no prohibition by reason of the finality of the
decision against making the correction, such as there
would be had there been a court decision where finality
had attached. Accordingly, the decisions of the Court of
Appeals and the Board holding otherwise are reversed,
and the Order of the ALJ reinstated.
Id. at 768-69.
Wheatley is easily distinguishable from the case sub judice in that the
mistake in Wheatley was a mistake of the ALJ on the application of the law, not a
mistake, as here, by the claimant. We find no law extending the application of
“mistake” to actions on the part of a claimant that might be otherwise forgiven as
“excusable neglect” under CR 60.02.
Moreover, the Supreme Court noted in an opinion rendered
subsequent to Wheatley that “[a]lthough the regulations that govern workers’
compensation proceedings have adopted several of the Rules of Civil Procedure,
they have not adopted CR 60.01 or CR 60.02. KRS 342.125(1) states the only
grounds for reopening a final workers’ compensation award.” Burroughs v.
Martco, 339 S.W.3d 461, 465 (Ky. 2011).
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Had the legislature wanted to include “excusable neglect” on the part
of a claimant as valid grounds to reopen a claim, it would have promulgated a
regulation identical to CR 60.02 allowing it. Without clear direction from the
Supreme Court or amendment of KRS 342.125, we cannot apply “excusable
neglect” as grounds for reversal in the case sub judice.
CONCLUSION
For the foregoing reasons, we affirm the Board’s opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Edwin A. Jones R. Christion Hutson
Jared K. Holt Paducah, Kentucky
Paducah, Kentucky
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