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Baptist Hospital East v. Jones12/16/2004
ury until the hearing, after the proof was closed. It maintained that because the claimant failed to join a claim for the left shoulder injury, KRS 342.185 and KRS 342.270(1) precluded litigation of the matter.
Relying on Nucor Corp. v. General Electric Co., Ky., 812 S.W.2d 135 (1991), the Court determined that it was within the ALJ's the authority to amend the claim to include the left shoulder injury because there was no evidence of prejudice to the employer. Kroger Company v. Jones, supra at 246. In Nucor, supra at 145-46, the Court had noted that CR 15.02 is a tool for deciding cases on their merits rather than on the basis of gamesmanship. It explained that one of the reasons for the rule is to take cognizance of issues that were actually tried. If issues that are not raised in the pleadings are tried with the express or implied consent of the parties, the rule permits them to be treated as if they had been raised. A party's failure to object to the introduction of evidence on an unpleaded issue implies consent to the trial of the issue.
Rejecting the view that there could be no implied consent, the Court took the view that the theory of implied consent rested on an absence of actual prejudice, i.e., on the ability to present a defense.
Unlike Kroger v. Jones, supra, the present case does not involve multiple injuries arising from the same accident. It involves two alleged accidents/injuries and a claim that sought benefits for only the latter. The claimant filed an application regarding the January, 2000, injury more than two years after September, 1999. She conceded that a claim for an injury resulting from the 1999 accident was time-barred and was steadfast in asserting that her disability was due to the latter incident. She failed to raise an alternative argument that TTD paid in 2000 was actually for the 1999 injury and tolled the period of limitations regarding that injury. For that reason, the employer had no reason to present any legal defenses to a claim regarding the 1999 injury and addressed the 1999 injury only to the extent that it constituted a defense to the claim at issue.
In defending the claim, the employer asserted that the previous injuries, including the 1999 injury , caused a pre-existing active condition; that the 1999 injury was responsible for any permanent impairment and was time-barred; and that the incident that occurred in January, 2000, caused only a temporary disability for which the claimant had been compensated. Such an argument does not amount to a concession that the effects of the 1999 incident would have been compensable absent a limitations defense. Nonetheless, the ALJ amended the 2000 claim sua sponte to include a claim for the 1999 injury and awarded benefits for the 1999 injury although the employer had neither a reason nor the opportunity to present a defense to that claim. Under the circumstances, where there was no indication that the 1999 claim was tried by implied consent and where there was actual prejudice to the employer, it was an abuse of the ALJ's discretion to apply CR 15.02. Nucor Corp. v. General Electric Co., supra.
The decision of the Court of Appeals is reversed.
All concur.
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