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Harris v. Disposal8/25/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Relying on KRS 342.125(4), an Administrative Law Judge (ALJ) determined that although the claimant underwent post-settlement knee replacement surgery on September 13, 2002, he was not entitled to temporary total disability (TTD) benefits until the date of his motion to reopen, which was November 8, 2002. The Workers' Compensation Board and the Court of Appeals affirmed. Appealing, the claimant asserts that post-award TTD benefits do not change or increase the amount of compensation previously awarded, that his entitlement arose when he met the criteria of KRS 342.0011(11)(a), and that requiring a worker to file a prospective motion to reopen for TTD benefits circumvents KRS 342.040 and KRS 304.12-230, the Unfair Claims Settlement Practices Act. We affirm.
The claimant injured his right knee while working in August, 1996. On December 1, 1998, he filed an application for benefits in which he alleged both the knee injury and a subsequent back injury that occurred when the injured knee gave out. The application stated that he had undergone knee surgery and that surgery for a herniated disk was proposed. A settlement agreement approved on October 6, 2000, indicated that the claimant had undergone multiple arthroscopic knee surgeries as well as lower back surgery. It also indicated that the employer had paid $40,005.69 in medical benefits and $24,548.33 (128 1/7 weeks) in TTD benefits to date. The agreement provided for $5,000.00 in additional TTD benefits as well as for lump sum payments by the employer and Special Fund that represented a 45% permanent partial disability. It did not compromise the claimant's right to future medical expenses and to reopen.
On September 13, 2002, the claimant underwent total right knee replacement surgery. He submitted the medical bills to his health insurance carrier, but on November 8, 2002, he moved to reopen his workers' compensation claim, alleging a worsening of condition. The employer objected to the motion, maintaining that the worsening of condition was not attributable to the work-related injury. The issues presented to the ALJ included, among other things, the claimant's entitlement to TTD benefits from September 13, 2002, until he reached maximum medical improvement (MMI) following the knee surgery; the date of MMI; the compensability of the surgery; and his entitlement to income benefits for a permanent increase in disability due to the knee condition.
After considering the lay and medical evidence at reopening, the ALJ determined that the claimant's knee condition was due to the work-related injury, that his actual occupational disability at settlement had been 75%, and that his present occupational disability was no greater. Relying on Dr. Dobner's testimony, the ALJ determined that the claimant did not reach MMI until one year after the knee replacement surgery. The claimant received an award of medical benefits for the knee condition and TTD benefits "commencing on November 8, 2002, the date of the motion to reopen, and continuing until one year post-surgery, or September 13, 2003." In a petition for reconsideration, he requested that TTD benefits be instituted on the date of surgery. It was denied.
The claimant asserts that the ALJ misinterpreted KRS 342.125(4) by failing to consider KRS 342.040 and erred by commencing his award from the date of his motion to reopen
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