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Summers v. U.S. Liquids3/4/2005
AFFIRMING
To reopen a workers' compensation claim, a claimant must make a prima facie showing of one or more of the statutory grounds for reopening contained in Kentucky Revised Statutes (KRS) 342.125(1) before the claimant is even entitled to a hearing on the merits. KRS 342.125(1)(b) permits reopening on the basis of " ewly-discovered evidence which could not have been discovered with the exercise of due diligence."
David Summers moved to reopen his claim against U.S. Liquids on the basis that he was discharged by that employer after his award was entered. He asserts that evidence of this post-award discharge is newly-discovered evidence within the meaning of KRS 342.125(1)(b). In the alternative, he asserts that the dismissal of his motion to reopen is manifest injustice, which he asserts is a judicially-created ground for reopening. Similarly, he asserts that the dismissal of his motion to reopen is against public policy. The Administrative Law Judge (ALJ) dismissed Summers's motion without a hearing for failure to make a prima facie showing for reopening, a decision later affirmed by the Workers' Compensation Board (Board). We agree that Summers has failed to make a prima facie showing of any legitimate ground for reopening. So we affirm the Board's decision.
Summers worked for U.S. Liquids as a maintenance mechanic, a position requiring him to lift up to one hundred pounds, climb stairs and ladders, stoop frequently, walk considerable distances, and be on his feet for several hours at a time. On December 9, 2000, while working for U.S. Liquids, he fell from a portable storage tank, injuring his feet and hips. The only contested issue in Summers's workers' compensation claim was the extent of his permanent occupational disability.
Dr. Mark Petrik, Summers's treating physician, provided the only medical report submitted in the claim.
Dr. Petrik stated that Summers would require bracing, analgesics, and ambulatory support for the rest of his life because of permanent injuries to his feet, despite three surgeries to his left foot and one surgery to his right foot. He also anticipated that Summers might require additional surgery. He assigned the following permanent physical restrictions to Summers: no squatting, crouching, or climbing ladders; stair-climbing should be limited to one flight; walking should be limited to 30-40 feet at a time with crutches or a cane; sitting should be limited to 30 minutes at a time; and standing should be limited to 8-9 minutes at a time. Dr. Petrik assessed Summers as having a 40 percent whole-person impairment rating.
Due to accommodations by U.S. Liquids, Summers was able to return to fulltime, light-duty work after his injury ; but he was no longer able to perform overtime work. He worked in the office placing orders and going through old paperwork in preparation for the planned installation of a new computer. In his deposition, Summers admitted that he had been told that the office job was not permanent and stated that he did not know how long it would last. In the opinion, order, and award, the ALJ found Summers to have a 40 percent occupational disability, based on Dr. Petrik's report. Notwithstanding Summers's return to light-duty work in an accommodated position, the ALJ also applied the three multiplier found in KRS 342.730(1) based on her finding that Summers lacked the physical capacity to return to the type of work that he performed at the time of the injury.
Summers alleges that on October 5, 2002, shortly after the workers' compensation order and award was final, he was told that he was being terminated by U.S. Liquids because "the case settled." In September 2003, Sum
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