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Summers v. U.S. Liquids3/4/2005
ablished a prima facie case for reopening on the basis of manifest injustice is without merit.
Finally, Summers asserts that dismissing his petition for reopening is against public policy. He asserts that U.S. Liquids effectively blocked him from receiving a permanent total disability award by offering him an accommodated position until the award was final leaving him worse off after his discharge than if the company had not accommodated him in the first place. He asserts that dismissing his motion for reopening in this situation leaves him without a remedy. First, we note that a remedy already exists, as set forth in Gunderson v. City of Ashland. Gunderson holds that an injured employee may receive permanent total disability benefits even if the employee is able to return to work full time in a light-duty job due to the efforts of an accommodating employer where the employee otherwise would be unable to find employment in the competitive job market due to his work-related disability. In his brief, Summers concedes that he did not seek permanent total disability in his original claim under Gunderson because he thought it would be too difficult to establish his total disability while working. Where a remedy is available, a party may not argue public policy to seek another, preferred remedy. Even if we agreed that Summers was without a remedy, which we do not, we cannot do what he asks of us. "It is beyond the power of a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is contrary to what the court considers to be in the public interest." Therefore, Summers's public policy argument does not establish a prima facie case for reopening.
In conclusion, none of the three grounds for reopening asserted by Summers is a valid basis for reopening under KRS 342.125(1). As such, he has failed to establish a prima facie case for reopening and is not entitled to a hearing on the merits of his motion to reopen. We affirm the Board's decision affirming the ALJ's dismissal without a hearing of Summers's motion to reopen for failure to make a prima facie case for reopening.
ALL CONCUR.
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