Kindred Healthcare v. Carlye Harper

RENDERED: MARCH 24, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0200-WC
KINDRED HEALTHCARE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2019-CA-1627
WORKERS’ COMPENSATION BOARD
NO. WC-17-99840
CARLYE HARPER; APPELLEES
HONORABLE DOUGLAS W. GOTT, CHIEF
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
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 KRS1 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
1 Kentucky Revised Statutes.
2
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
2 American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed.).
3
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
4
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
5
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.
6
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 688.
III. Statutory Construction
In resolving the issues raised in this appeal, we must construe the
legislative intent relating to two competing workers’ compensation statutes,
KRS 342.710 and KRS 342.125, as they relate to motions to reopen.
“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). When statutorily authorized, “a
motion to reopen is the procedural device for invoking the jurisdiction of the
Department of Workers’ Claims to reopen a final award.” Id.7
“The primary purpose of the Workers’ Compensation Act is to aid injured
or deceased workers” and statutes are to be interpreted “in a manner that is
consistent with their beneficent purpose.” Ky. Uninsured Employers’ Fund v.
Hoskins, 449 S.W.3d 753, 762 (Ky. 2014) (citations omitted). The overarching
purpose of the workers’ compensation chapter “is to compensate workers who
are injured in the course of their employment for necessary medical treatment
and for a loss of wage-earning capacity, without regard to fault,” thereby
enabling them “to meet their essential economic needs and those of their
dependents.” Adkins v. R & S Body Co., 58 S.W.3d 428, 430-31 (Ky. 2001)
(citations omitted). Inextricably intertwined with provision of necessary
medical treatment and compensation for lost income, a coequal “purpose of
workers’ compensation legislation is to restore the injured worker as soon as
possible and as near as possible to a condition of self-support as an able-
bodied worker,” and “to enable the worker to reenter the job market and
become employed again in a position as near as possible in pay and status to
the one the claimant has been forced by injury to leave.” Wilson v. SKW Alloys,
Inc., 893 S.W.2d 800, 802 (Ky. App. 1995) (citations omitted).
Statutory construction requires that we reasonably interpret competing
provisions so as to give effect to both while harmonizing the whole. Falk v.
Alliance Coal, LLC, 461 S.W.3d 760, 764 (Ky. 2015). “[W]here there is both a
specific statute and a general statute seemingly applicable to the same subject
[the rule] is that the specific statute controls.” Bevin v. Beshear, 526 S.W.3d
89, 91 n.6 (Ky. 2017) (citations omitted).
8
“The essence of statutory construction is to determine and effectuate
legislative intent” by drawing insight from “the legislative policy and purpose of
the statute” and interpreting the entire statute in context without distorting its
intended meaning by focusing on a single sentence, clause, or phrase. Sweasy
v. Wal-Mart Stores, Inc., 295 S.W.3d 835, 838 (Ky. 2009) (citations omitted). A
statute must be read and applied so that “no part of it is meaningless or
ineffectual.” Stevenson v. Anthem Cas. Ins. Grp., 15 S.W.3d 720, 724 (Ky.
1999).
First and foremost, this Court must always bear in mind that “[a]ll
statutes of this state shall be liberally construed with a view to
promote their objects and carry out the intent of the legislature[.]”
Therefore, when interpreting a statute, our responsibility is to give
effect to the intent of the General Assembly. “We derive that
intent, if at all possible, from the language the General Assembly
chose, either as defined by the General Assembly or as generally
understood in the context of the matter under consideration.” In
addition, we must assume that the General Assembly intends that
a statute be read as a whole such that each of its constituent parts
have meaning. And, in interpreting a statute, we must assume
that the General Assembly did not intend for an interpretation that
would lead to an absurd result.
Wilson v. Commonwealth, 628 S.W.3d 132, 140 (Ky. 2021) (citations
omitted). Where legislative intent is apparent on the face of a statute and
there is no question as to its meaning, “there is no room for construction,
liberal or otherwise.” Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44,
47 (Ky. App. 1978). The rule of liberal construction does not authorize
judicial disregard of clear statutory language under the guise of
interpretation and courts retain the duty to construe statutes “so as to
do justice to both employer and employee.” Id.9
IV. KRS 342.710 and KRS 342.125
KRS 342.710 specifically relates to rights, duties, and procedures
relating to vocational rehabilitation services. “KRS 342.710(1) makes it clear
that one of the primary purposes of Chapter 342 is the physical and vocational
rehabilitation of injured workers so they can return to gainful employment.”
Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387, 391 (Ky. 2001).
Regarding the latter, KRS 342.710(3) provides:
When as a result of the injury [the injured worker] is unable to
perform work for which he or she has previous training or
experience, he or she shall be entitled to such vocational
rehabilitation services, including retraining and job placement, as
may be reasonably necessary to restore him or her to suitable
employment.
Thus, “a factual finding concerning whether a worker is unable to perform
work for which he [or she] has previous training or experience is mandatory”
and prerequisite to adjudicating appropriateness of vocational rehabilitation
services. Haddock, 62 S.W.3d at 391 (citation omitted).
“Suitable employment” has been defined to mean:
Work which bears a reasonable relationship to an individual’s
experience and background, taking into consideration the type of
work the person was doing at the time of injury, his age and
education, his income level and earning capacity, his vocational
aptitude, his mental and physical abilities and other relevant
factors both at the time of injury and after reaching his post-injury
maximum level of medical improvement.
SKW Alloys, Inc., 893 S.W.2d at 802. By effectuating a return to a pre-injury
level of self-reliance, the statute not only achieves the primary legislative
purpose of diminishing individual financial hardship but also, logically,
reduces significant private sector and governmental expenditures incurred
10
from dependence on income, subsistence, medical, and other social programs,
and thereby spurs broader economic prosperity and greater business
investment throughout the Commonwealth.
KRS 342.710(3) indicates an injured worker “is entitled to prompt
medical rehabilitation services . . . to accomplish physical rehabilitation goals
which are feasible, practical, and justifiable,” but includes no analogous
requirement for prompt provision of vocational rehabilitation services.
(Emphasis added). As the Board correctly reasoned:
[T]here is no enumerated time frame within which to seek
vocational rehabilitation. We concede that, in most cases,
entitlement to vocational rehabilitation is raised during the
pendency of the [original] claim. However, the statute does not
explicitly require the claimant to seek vocational rehabilitation
during the pendency of the original claim seeking income and
medical benefits. Consequently, vocational rehabilitation may be
invoked by a party by seeking a referral from an ALJ for an
“evaluation of the practicability of” and “need for” vocational
rehabilitation after the claim has been resolved.
The Board further explained:
One can conceive of situations wherein the injured worker does not
perceive vocational rehabilitation is necessary or underestimates
the need for vocational rehabilitation during the pendency of the
claim. Instead, only after the claim has concluded does the
claimant realize that, without some form of vocational
rehabilitation, he or she is unable to return to suitable
employment. In those cases, the worker is not precluded from
seeking rehabilitation to secure suitable employment.
We agree and are convinced the legislature intended no time limitation relative
to addressing vocational rehabilitation services under KRS 342.710(3),
intended no requirement that such benefits be sought during the pendency of
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the original claim, and intended no bar to seeking such benefits in a post-
award reopening.
KRS 342.710(3)’s silence in establishing any time limitation or particular
procedural mechanism for addressing disputes relating to vocational
rehabilitation services is a persuasive indicator of legislative intent. Sweeney v.
King’s Daughters Med. Ctr., 260 S.W.3d 829, 833 (Ky. 2008). Here, based on
the statute’s primary goal of returning injured workers to suitable employment
and because matters relating to the appropriateness of retraining services may
not arise or become apparent until the original action has ended, we are
persuaded the Board and Court of Appeals correctly concluded the statute’s
silence indicates the legislature’s intent to authorize the raising of such
disputes at any time and by any mechanism, whether during an original claim
or in a post-award reopening.
Further, whether raised during the pendency of an original claim or in a
post-award reopening, KRS 342.710(3) mandates “[i]n all such instances” in
which the injured worker has been found unable “to perform work for which he
or she has previous training or experience” the ALJ “shall inquire” whether
such services “have been voluntarily offered and accepted.” This mandate is
necessitated because administrative procedures for implementing vocational
rehabilitation services under KRS 342.710(3) are informal, encouraging
cooperation between the injured worker and the employer and its insurance
carrier. Neighbors v. River City Interiors, 187 S.W.3d 319, 324-25 (Ky. 2006).
12
The statute and supporting regulations “anticipate the Department
representative will present the results of the evaluation and the available
options for physical and/or vocational rehabilitation to the parties,” that the
parties “will cooperate in devising and implementing a reasonable plan for the
injured worker’s rehabilitation,” and that the statute’s punitive measures found
in KRS 342.710(5) and (6) will encourage cooperation. Neighbors, 187 S.W.3d
at 324. Adjudication and entry of an appropriate order by an ALJ is
necessitated only “where the parties disagree.” Id.
In the present case, Harper’s right to invoke the vocational rehabilitation
procedures under KRS 342.710(3) did not accrue or become readily known
until the ALJ found she was incapable of returning to work for which she had
previous training and experience. And, appropriateness for vocational
rehabilitation services was not established until Harper was unsuccessful in
returning to suitable employment and she obtained a vocational evaluation
indicating retraining would be beneficial. Even then, the informal
administrative procedures envisioned by the statute presumed the parties
would cooperate in discussing, developing, and implementing a reasonable
plan. Post-award reopening for ALJ adjudication became necessary only
because a dispute arose between Harper and Kindred Healthcare. Based on
the foregoing, the Court of Appeals correctly recognized “vocational
rehabilitation benefits provided in KRS 342.710 do not fall neatly within the
category of contested issues advanced in a claim.” As such, KRS 342.270(1)’s
requirement for joinder of all causes of action in an original proceeding is
13
inapplicable to Harper’s circumstances and she did not waive her right to seek
vocational retraining by failing to pursue such benefits during the pendency of
her original claim.
The ALJ’s compliance with the procedures mandated in KRS 342.710(3)
is not elective or conditioned upon any claim or action by the parties, nor is it
required that any request for such services be listed as a contested issue by
either party. Upon the necessary finding of inability to perform previous work,
the ALJ “shall” make inquiry regarding any voluntary vocational rehabilitation
services and may exercise discretion in assessing the merits of awarding
vocational rehabilitation services. Commonwealth, Transp. Cabinet v. Guffey,
42 S.W.3d 618, 621 (Ky. 2001). To aid assessment, KRS 342.710(3) authorizes
the ALJ to “refer the employee to a qualified physician or facility for evaluation
of the practicability of, need for, and kind of service, treatment, or training
necessary and appropriate to render him or her fit for remunerative
occupation.” A referral may be initiated on the ALJ’s “own motion, or upon
application of any party or carrier” and the parties shall be afforded “an
opportunity to be heard.” KRS 342.710(3). Whenever requested by either
party, “[t]he procedure set out in KRS 342.710 must be followed” to allow the
ALJ to make the requisite findings relative to the injured worker’s level of
disability and the merits of vocational rehabilitation services. Edwards v.
Bluegrass Containers Div. of Dura Containers, Inc., 594 S.W.2d 900, 902 (Ky.
App. 1980). “[I]f the employee ‘is unable to perform work for which he has
14
previous training or experience’ as a result of a work-related accident, he is
entitled to vocational rehabilitation services.” Id.Conversely, KRS 342.125 specifically relates to motions to reopen
seeking to “end, diminish, or increase compensation previously awarded . . . or
change or revoke a previous order” related thereto. KRS 342.125(4).
Reopening compensation awards “previously dismissed or denied on the
merits” is prohibited absent a showing of one of four grounds, including: (a)
fraud, (b) newly discovered evidence, (c) mistake, or (d) change of disability.
KRS 342.125(1) and (2). “Compensation” is defined as meaning “all payments
made under the provisions of this chapter representing the sum of income
benefits and medical and related benefits.” KRS 342.0011(14). None of the
benefits referenced under the definition of “compensation”—including “income
benefits,” “medical and related benefits,” “medical services,” and coal workers’
“retraining incentive benefits”—encompass vocational rehabilitation services.
See KRS 342.0011(12), (13), (14), and (15); KRS 342.732; and KRS 342.125(5).
V. Independent Ground for Reopening
Based on the foregoing, we are convinced the legislature intended KRS
342.710(3) to provide an independent ground for reopening, especially given
the important governmental purposes KRS 342.710 seeks to achieve. Clearly,
the provisions of KRS 342.710 pertain specifically to applications and motions
to reopen seeking vocational rehabilitation services, while the provisions of KRS
342.125 pertain to motions to reopen seeking to “end, diminish, or increase
compensation previously awarded” or to “change or revoke” a related order. To
15
the extent the two statutes differ or conflict, KRS 342.710 is the more specific
relative to vocational rehabilitation services and controls. Thus, as the Board
held, and the Court of Appeals correctly affirmed, “KRS 342.125(1) is not the
sole vehicle by which reopening can be achieved in order to obtain vocational
rehabilitation[;]” “a motion to reopen seeking vocational rehabilitation need not
be pigeon-holed into one of the grounds set forth in KRS 342.125(1)[;]” and
“KRS 342.710 contemplates motions to reopen based on grounds set forth
exclusively within [its own statutory provisions].”
As the Board correctly discerned, today’s holding was presaged, expressly
or implicitly, by two prior decisions of this Court. In Neighbors, though a
request for vocational retraining was not mentioned in the BRC memorandum
or the claimant’s brief, an ALJ found the injured worker totally disabled and
ordered an evaluation to determine the propriety of vocational retraining. The
claimant filed a petition for reconsideration asserting his physical condition
precluded retraining. However, the employer argued vocational rehabilitation
is a crucial goal of the Workers’ Compensation Act and complained the injured
worker was avoiding reasonable attempts to return him to suitable
employment. The ALJ overruled the claimant’s petition. Thereafter, an
evaluation was conducted but the claimant refused to cooperate with
recommended retraining.
The employer filed a motion to reopen the original award to seek a
reduction of PTD income benefits due to the claimant’s refusal to cooperate,
citing both KRS 342.125(1) and KRS 342.710(5). The claimant objected to
16
reopening, arguing none of the grounds enumerated in KRS 342.125 permitted
reopening under the circumstances and KRS 342.710’s silence regarding the
mechanism for requesting a reduction of income benefits meant the matter
must be brought under circuit court jurisdiction. Because the process
established by KRS 342.710(3) had not been accomplished, the CALJ ordered
the matter reopened and assigned it to another ALJ for further proceedings.
A second vocational evaluation confirmed prior findings and
recommendations. The ALJ found the claimant’s physical condition did not
prevent participation in a retraining program and that his willing participation
might reasonably return him to suitable employment. The employer’s motion
for reduction of PTD income benefits was overruled but the claimant was
ordered to undergo vocational rehabilitation services as previously
recommended. A second petition for reconsideration was overruled and the
claimant appealed. In affirming the ALJ’s order upon reopening directing the
claimant’s acquiescence to recommended vocational retraining, our Court held:
Post-award disputes concerning vocational rehabilitation under
KRS 342.710(3) and requests for a reduction in benefits under KRS
342.710(5) are matters that arise under Chapter 342; therefore,
KRS 342.325 grants an ALJ jurisdiction to decide them. A worker
seeking to resist rehabilitation has the burden to show that the
evaluator’s recommendations or the available options are
impractical or inappropriate. An employer seeking a reduction in
benefits has the burden to show that the worker has refused to
accept rehabilitation pursuant to an ALJ order.
Neighbors, 187 S.W.3d at 324. Notably, our holding in Neighbors—establishing
that the four grounds authorizing reopening under KRS 342.125(1) are not
exhaustive—was decided in 2006.
17
[T]he failure of the legislature to change a known judicial
interpretation of a statute [is] extremely persuasive evidence of the
true legislative intent. There is a strong implication that the
legislature agrees with a prior court interpretation of its statute
when it does not amend the statute interpreted.
Toyota Motor Mfg., Ky., Inc. v. Prichard, 532 S.W.3d 633, 636 (Ky. 2017) (citing
Rye v. Weasel, 934 S.W.2d 257, 262 (Ky. 1996)).
In Pinkston v. Teletronics, Inc., 4 S.W.3d 130 (Ky. 1999), an injured
worker who was awarded PPD benefits requested to pursue a vocational
rehabilitation program and the ALJ referred him for evaluation. The injured
worker subsequently enrolled in a full-time, lengthy, and distant retraining
program. The employer voluntarily paid for program registration fees, books,
and tuition, but refused reimbursement for mileage under KRS 342.710 or
payment of rehabilitation income benefits pursuant to KRS 342.715. The
injured worker filed a motion to reopen.
Ultimately, our Court held medical evidence supported extending the
claimant’s period of vocational retraining, the claimant was entitled to
reimbursement of mileage expenses for commuting to the rehabilitation
program, and that enhanced rehabilitation benefits authorized by KRS 342.715
did not apply to the claimant, whose permanent disability was merely partial.
Our decision in Pinkston referenced none of KRS 342.125(1)’s grounds as
having authorized the reopening. Thus, in Pinkston we implicitly recognized
KRS 342.710(3) as an independent ground by resolving issues raised upon
reopening on their merits with no mention of any authority other than the
related KRS 342.715.
18
VI. No Claim Preclusion
We are further convinced claim preclusion does not bar adjudication of
Harper’s claim. Claim preclusion bars a party from relitigating a previously
adjudicated cause of action. Miller v. Admin. Off. Of Cts., 361 S.W.3d 867, 871
(Ky. 2011) (citing Yeoman v. Commonwealth Health Pol’y Bd., 983 S.W.2d 459,
464 (Ky. 1998)). For claim preclusion to apply, three elements must be met:
“(1) an identity of parties between the two actions; (2) an identity of the two
causes of action; and (3) the prior action must have been decided on the
merits.” Id. at 872 (quoting Harrod v. Irvine, 283 S.W.3d 246, 250 (Ky. App.
2009)). “The doctrine of [claim preclusion] applies to the rulings of a Work[ers’]
Compensation Board the same as it does to the decisions of a court.” Hysteam
Coal Corp. v. Ingram, 283 Ky. 411, 415, 141 S.W.2d 570, 572 (1940).
Here, however, because the ALJ erroneously failed to properly investigate
and adjudicate the merits of Harper’s request for vocational rehabilitation
services pursuant to KRS 342.710(3) in the original action after having found
her incapable of previous work, the third element necessary for imposition of
claim preclusion was not met. See Miller, 361 S.W.3d at 872. As a result,
Harper is not barred from pursuing such services in this statutorily authorized
reopening.
We acknowledge that during the original proceedings, vocational
rehabilitation services were not specifically listed as a contested issue at the
BRC or formal hearing. However, Harper listed “[a]bility to return to work
performed at time of injury” as a contested issue on the BRC memorandum
19
and testified at the hearing, indicating she was “very interested in retraining for
a job such as a counselor or therapist, which does not require heavy lifting”
and was “anxious to be retrained for a job . . . less physically demanding.”
Thereafter, Harper’s brief requested:
In addition to the medical and income benefits, we ask the ALJ to
order a vocational rehabilitation evaluation for Ms. Harper, with
the hope that she can return to being a productive member of the
work force.
We are convinced that by listing “[a]bility to return to work performed at
time of injury” as a contested issue in the original action, Harper had in
essence invoked and preserved a claim for appropriate vocational rehabilitation
services under KRS 342.710(3), because an ALJ’s finding of such disability
automatically triggers the statutory mandate for the ALJ to explore and
adjudicate the merits of an award of vocational rehabilitation services. Here,
the ALJ made the requisite finding regarding the matter preserved as a
contested issue but failed to follow procedures mandated by that finding, and
as a result, failed to address the merits of Harper’s request. Again, a mandated
administrative procedure need not be preserved by a request or listing it as a
contested issue. Instead, the ALJ merely held:
The 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.
Logically, matters “not before” an ALJ are matters remaining to be awarded,
denied, or dismissed, and the ALJ’s statement that Harper’s request would not
be considered “at this time” denotes the matter could ripen for adjudication “at
20
another time.” Thus, the doctrine of claim preclusion is inapplicable to the
present appeal.
VII. Sufficient Service
Finally, we agree with the Board and Court of Appeals that there is no
merit in Kindred Healthcare’s assertion that improper service should bar
consideration of Harper’s motion to reopen. While Harper failed to serve
Kindred Healthcare’s counsel with a paper or emailed copy of her motion to
reopen, the employer’s brief acknowledges Harper’s motion indicated service
was to be accomplished through the Litigation Management System (LMS),
which the Kentucky Labor Cabinet’s website describes as:
a web-based application designed to move the workers’
compensation litigation system into the 21st century by allowing
stakeholders to file and manage claims electronically rather than
the traditional method of filing paper.
Admittedly, because Harper’s original claim had been closed on the LMS,
counsel for Kindred Healthcare had no access to subsequent filings and
remained unaware of Harper’s subsequent filing of her motion to reopen until
receipt of an acknowledgment letter from the Department of Workers
Compensation. However, Harper’s service by way of the LMS provided
sufficient notice upon Kindred Healthcare as was evidenced by counsel’s filing
of a response on the very same LMS within seven days of entry of Harper’s
motion to reopen.
[T]he object or purpose of a service of process is to notify of the
proceeding, thereby affording an opportunity to appear before and
be heard by the court. It must be admitted that mere knowledge of
the pendency of an action is not sufficient to give the court
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jurisdiction, and, in the absence of an appearance, there must be a
service of process.
Rosenberg v. Bricken, 302 Ky. 124, 194 S.W.2d 60, 62 (1946) (emphasis
added). Clearly, Harper’s failure to serve Kindred Healthcare’s counsel with a
paper or email copy of the motion to reopen in no way prejudiced the
employer’s ability to offer a timely and effective response, and Harper’s motion
to reopen should not be barred.
VIII. Conclusion
For the foregoing reasons, we affirm the Court of Appeals’ decision
upholding the Board’s reversal of the CALJ’s dismissal of Harper’s motion to
reopen seeking vocational rehabilitation services pursuant to KRS 342.710.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Catherine Ann Poole
Goodrum & Downs PLLC
COUNSEL FOR APPELLEE,
CARLYE HARPER:
Rodger W. Lofton
CHIEF ADMINISTRATIVE LAW JUDGE:
Hon. Douglas W. Gott
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey
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