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Cruse v. Aristech Chemical Co.1/20/2005
THIS OPINION IS DESICNA TED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULCATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
NOT TO BE PUBLISHED
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Workers' Compensation Board (Board) and a Court of Appeals majority have affirmed an Administrative Law Judge's (ALJ's) decision to dismiss the claimant's January 31, 2001, motion to reopen. The basis for the decision was that the original award granting benefits was rendered in 1990, but the motion was filed more than four years after December 12, 1996. KRS 342.125(3) and (8). We affirm.
The underlying claim is for an October, 1988, back injury . It has an extensive procedural history and has been the subject of decisions by several ALJs. In September, 1990, an ALJ approved an agreement to settle the initial claim for a lump sum that represented a 30% occupational disability. The claimant moved to reopen in June, 1992, and received a total disability award in May, 1994. Anticipating that the claimant's occupational disability would lessen with time and rehabilitation that emphasized pain management, the ALJ also ordered a rehabilitation evaluation. In February, 1996, after the claimant completed a pain management program, the employer moved to reopen. Despite the claimant's assertion that he remained totally disabled, an ALJ reduced the award to a 60% disability in a decision rendered on January 31, 1997. Following an appeal to the Court of Appeals and a remand for the entry of an order setting the duration of the reduced award, the AU entered such an order on June 3, 1998. No appeal was taken from that order.
On April 22, 1998, the claimant filed a medical fee dispute, alleging that the employer refused to approve compensation for a surgery that his treating physician recommended. On June 1, 1998, he also filed a motion to reopen, alleging that his condition had worsened in the past year, that he was totally disabled, and that he required surgery that the employer refused to approve and for which a medical fee dispute was pending. Responding to the motion, the employer asserted that KRS 342.125(3) prohibited reopening at that time and that the claimant had failed to make the necessary prima facie showing. On June 22, 1998, the ALJ granted the claimant 20 days in which to submit certain specified medical evidence, but on July 8 and August 17, 1998, the claimant sought additional time in which to do so. On September 2, 1998, ALJ May rendered a decision dismissing the motion to reopen, noting that the claimant had 2 '/2 months to supplement it but failed to do so.
In a petition for reconsideration, the claimant stated that the ground for his motion to reopen was the employer's refusal to pay for the surgery and that he should not be penalized for his surgeon's failure to respond promptly, attaching his own affidavit and some medical records from the surgeon, which he alleged showed a worsening of his condition and the need for surgery. He also stated:
Originally this matter was brought as a Medical Fee Dispute while the original claim was pending on appeal. Counsel then filed the Motion to Reopen for the issue of compensability of the surgery. .. . Obviously, if the surgery is ordered compensable the Claimant will seek temporary total benefits while he is off work. However, for now the Motion to Reopen must be considered as to the medical fee dispute and whether surgery is compensable.
WHEREFORE, The claimant requests that the claim be reopened in order to re
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