RENDERED: MAY 31, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0098-WC
BRAD DUKE APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-22-01269
GE HAIER; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
AND
NO. 2024-CA-0140-WC
TONYA LONG APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-21-61731
UNIVERSAL LINEN; HONORABLE PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Brad Duke and Tonya Long appeal from orders of
the Workers’ Compensation Board which affirmed orders from two Administrative
Law Judges (ALJs). The ALJs denied Appellants motions for their cases to go to
mediation. Appellants argue that mediation should be mandatory and not
discretionary. We disagree and find no error.
FACTS AND PROCEDURAL HISTORY
Appellants were each injured while at work and both sought workers’
compensation benefits. The specifics of their injuries are not relevant. After filing
their claims, Appellants, through counsel, petitioned their respective ALJ to be
transferred to mediation pursuant to a scheme set forth in Kentucky Revised
Statutes (KRS) 342.276 and 803 Kentucky Administrative Regulations (KAR)
25:300. The mediation program is moderated by current ALJs and must be
requested. At issue is Section 4 of 803 KAR 25:300, which states in relevant part:
Section 4. Procedures for Conduct of Mediation Proceedings.
(1) At any time after the claim has been initiated with the Department of Workers’ Claims, any party may file a motion with the administrative law judge to have the
-2- claim, or any part of the claim, referred to mediation under the program outlined in this administrative regulation. The motion shall identify the issues to be mediated.
(2) An opposing party shall have seven (7) calendar days to file a response to the motion seeking mediation.
(3) The administrative law judge shall either grant or deny the motion within ten (10) calendar days of the filing of the motion to refer to mediation.
(4) The parties may file a joint motion to refer to mediation. The administrative law judge shall order that the claim or parts of the claim be referred to mediation within seven (7) calendar days of the filing of the joint motion.
(5) The administrative law judge may refer a claim or part of a claim to mediation at any time after being assigned the claim.
(6) Upon the referral, the administrative law judge or the mediator shall confer with the parties for the purpose of scheduling the mediation. The mediator shall issue a mediation order within seven (7) calendar days of the referral which shall include:
(a) The date, time, allotted time, location of the mediation, and whether the mediation shall be conducted in person, by telephone, or by video conferencing technology;
(b) The required attendees of the mediation; and
(c) The issue(s) to be mediated.
In each of the cases before us, the appellant moved for mediation, but
the motions were denied. Both also petitioned for the ALJ to reconsider, but those
-3- petitions were also denied. Each case went to their respective ALJs in the usual
course and Appellants were awarded benefits. In fact, Appellants were awarded
the maximum amount of benefits they requested.
Appellants then appealed to the Board. They did not contest the
amount of benefits awarded, but did argue that they should have been allowed to
participate in mediation. The Board found that there was no error and affirmed.
The Board also affirmed the ALJs decisions regarding Appellants’ benefits. This
appeal followed.
ANALYSIS
On appeal, Appellants argue that mediation should be mandatory. In
the alternative, they argue that the ALJs abused their discretion in denying their
motions for mediation. We review issues surrounding the interpretation of statutes
and administrative regulations de novo. Commonwealth v. Long, 118 S.W.3d 178,
181 (Ky. App. 2003); All. for Kentucky’s Future, Inc. v. Envt’l & Pub. Prot.
Cabinet, 310 S.W.3d 681, 687 (Ky. App. 2009).
Here, we agree with the Board that whether to refer a case to
mediation is within the sound discretion of the ALJ. Section 4 of 803 KAR 25:300
states that an ALJ can either grant or deny a motion for mediation. 803 KAR
25:300 §4(3). It also states that an ALJ “may refer a claim or part of a claim” to
mediation. 803 KAR 25:300 §4(5). Both subsections indicate that an ALJ may
-4- refer a case to mediation, but it is not required. A plain reading of the regulation
indicates that mediation is discretionary.
We will now determine if the ALJs in these cases abused their
discretion in denying mediation. “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In Mr. Duke’s case, after he moved for mediation, his employer
responded that it did not object to mediation; however, it requested a delay in
assigning mediation so that it could attempt to settle the claim with Mr. Duke first.
Additionally, the employer indicated that the report it received from the
independent medical evaluation it performed of Mr. Duke concurred with the
report of Mr. Duke’s medical expert on impairment rating, maximum medical
improvement date, and Mr. Duke’s capacity to return to work; therefore, there
were unlikely to be any contested issues.
The ALJ denied the motion for mediation due to the medical experts
of the parties agreeing on the major issues. The ALJ believed it would
unnecessarily take up a mediation slot since the issues were more or less resolved.
Mr. Duke then appealed to the Board. Mr. Duke did not appeal the benefits award,
but did raise the mediation issue. The Board agreed with the reasoning of the ALJ.
We too agree. The ALJ’s decision to deny Mr. Duke’s motion was reasonable
-5- under the circumstances. The medical experts for Mr. Duke and his employer
agreed on the major issues and Mr. Duke received the maximum amount of
benefits he requested. There was no error here.
As for Ms. Long, after she moved for mediation, her employer
responded that it did not object to mediation, but that it requested a private
mediator. A private mediator is allowed under 803 KAR 25:300 §5(2). Five days
after the employer’s response, the ALJ entered an order denying Ms. Long’s
motion to enter into the mediation program, but allowed the parties to enter into
private mediation as requested by the employer. The same day as that the ALJ
entered this order, Ms. Long objected to the private mediation and petitioned to
have mediation pursuant to 803 KAR 25:300 §4. The ALJ denied Ms. Long’s
renewed petition for mediation.
A hearing on Ms. Long’s compensation claim was held on March 2,
2023. That same day Ms. Long again moved for mediation. Ms. Long’s employer
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 31, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0098-WC
BRAD DUKE APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-22-01269
GE HAIER; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
AND
NO. 2024-CA-0140-WC
TONYA LONG APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-21-61731
UNIVERSAL LINEN; HONORABLE PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Brad Duke and Tonya Long appeal from orders of
the Workers’ Compensation Board which affirmed orders from two Administrative
Law Judges (ALJs). The ALJs denied Appellants motions for their cases to go to
mediation. Appellants argue that mediation should be mandatory and not
discretionary. We disagree and find no error.
FACTS AND PROCEDURAL HISTORY
Appellants were each injured while at work and both sought workers’
compensation benefits. The specifics of their injuries are not relevant. After filing
their claims, Appellants, through counsel, petitioned their respective ALJ to be
transferred to mediation pursuant to a scheme set forth in Kentucky Revised
Statutes (KRS) 342.276 and 803 Kentucky Administrative Regulations (KAR)
25:300. The mediation program is moderated by current ALJs and must be
requested. At issue is Section 4 of 803 KAR 25:300, which states in relevant part:
Section 4. Procedures for Conduct of Mediation Proceedings.
(1) At any time after the claim has been initiated with the Department of Workers’ Claims, any party may file a motion with the administrative law judge to have the
-2- claim, or any part of the claim, referred to mediation under the program outlined in this administrative regulation. The motion shall identify the issues to be mediated.
(2) An opposing party shall have seven (7) calendar days to file a response to the motion seeking mediation.
(3) The administrative law judge shall either grant or deny the motion within ten (10) calendar days of the filing of the motion to refer to mediation.
(4) The parties may file a joint motion to refer to mediation. The administrative law judge shall order that the claim or parts of the claim be referred to mediation within seven (7) calendar days of the filing of the joint motion.
(5) The administrative law judge may refer a claim or part of a claim to mediation at any time after being assigned the claim.
(6) Upon the referral, the administrative law judge or the mediator shall confer with the parties for the purpose of scheduling the mediation. The mediator shall issue a mediation order within seven (7) calendar days of the referral which shall include:
(a) The date, time, allotted time, location of the mediation, and whether the mediation shall be conducted in person, by telephone, or by video conferencing technology;
(b) The required attendees of the mediation; and
(c) The issue(s) to be mediated.
In each of the cases before us, the appellant moved for mediation, but
the motions were denied. Both also petitioned for the ALJ to reconsider, but those
-3- petitions were also denied. Each case went to their respective ALJs in the usual
course and Appellants were awarded benefits. In fact, Appellants were awarded
the maximum amount of benefits they requested.
Appellants then appealed to the Board. They did not contest the
amount of benefits awarded, but did argue that they should have been allowed to
participate in mediation. The Board found that there was no error and affirmed.
The Board also affirmed the ALJs decisions regarding Appellants’ benefits. This
appeal followed.
ANALYSIS
On appeal, Appellants argue that mediation should be mandatory. In
the alternative, they argue that the ALJs abused their discretion in denying their
motions for mediation. We review issues surrounding the interpretation of statutes
and administrative regulations de novo. Commonwealth v. Long, 118 S.W.3d 178,
181 (Ky. App. 2003); All. for Kentucky’s Future, Inc. v. Envt’l & Pub. Prot.
Cabinet, 310 S.W.3d 681, 687 (Ky. App. 2009).
Here, we agree with the Board that whether to refer a case to
mediation is within the sound discretion of the ALJ. Section 4 of 803 KAR 25:300
states that an ALJ can either grant or deny a motion for mediation. 803 KAR
25:300 §4(3). It also states that an ALJ “may refer a claim or part of a claim” to
mediation. 803 KAR 25:300 §4(5). Both subsections indicate that an ALJ may
-4- refer a case to mediation, but it is not required. A plain reading of the regulation
indicates that mediation is discretionary.
We will now determine if the ALJs in these cases abused their
discretion in denying mediation. “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In Mr. Duke’s case, after he moved for mediation, his employer
responded that it did not object to mediation; however, it requested a delay in
assigning mediation so that it could attempt to settle the claim with Mr. Duke first.
Additionally, the employer indicated that the report it received from the
independent medical evaluation it performed of Mr. Duke concurred with the
report of Mr. Duke’s medical expert on impairment rating, maximum medical
improvement date, and Mr. Duke’s capacity to return to work; therefore, there
were unlikely to be any contested issues.
The ALJ denied the motion for mediation due to the medical experts
of the parties agreeing on the major issues. The ALJ believed it would
unnecessarily take up a mediation slot since the issues were more or less resolved.
Mr. Duke then appealed to the Board. Mr. Duke did not appeal the benefits award,
but did raise the mediation issue. The Board agreed with the reasoning of the ALJ.
We too agree. The ALJ’s decision to deny Mr. Duke’s motion was reasonable
-5- under the circumstances. The medical experts for Mr. Duke and his employer
agreed on the major issues and Mr. Duke received the maximum amount of
benefits he requested. There was no error here.
As for Ms. Long, after she moved for mediation, her employer
responded that it did not object to mediation, but that it requested a private
mediator. A private mediator is allowed under 803 KAR 25:300 §5(2). Five days
after the employer’s response, the ALJ entered an order denying Ms. Long’s
motion to enter into the mediation program, but allowed the parties to enter into
private mediation as requested by the employer. The same day as that the ALJ
entered this order, Ms. Long objected to the private mediation and petitioned to
have mediation pursuant to 803 KAR 25:300 §4. The ALJ denied Ms. Long’s
renewed petition for mediation.
A hearing on Ms. Long’s compensation claim was held on March 2,
2023. That same day Ms. Long again moved for mediation. Ms. Long’s employer
responded that it did not wish to mediate the case because a final hearing had been
held and a decision on the merits was close at hand. The ALJ denied the motion
and found that “mediation would not be productive at this time. . . . The parties
may negotiate a settlement between counsel if they choose.” Ms. Long raised the
mediation issue two more times before the ALJ. The ALJ indicated the issue had
-6- been preserved for appeal, but that there would be no mediation. The ALJ then
entered an award granting Ms. Long the benefits she requested.
Ms. Long then appealed to the Board. The only issue she raised
before the Board concerned mediation. The Board ultimately affirmed finding no
abuse of discretion. We agree with the Board. Ms. Long wanted mediation
pursuant to 803 KAR 25:300 §4. The employer wanted private mediation pursuant
to 803 KAR 25:300 §5. Ms. Long then moved for mediation again after the final
hearing had taken place, but the employer was no longer interested in mediation
since the case was soon to be resolved on the merits.
“An abuse of discretion exists when the reviewing court is firmly
convinced that a mistake has been made.” Overstreet v. Overstreet, 144 S.W.3d
834, 838 (Ky. App. 2003) (footnote and citation omitted). We are not convinced a
mistake has been made here and the ALJ’s decision was reasonable.
Mr. Duke raises one more issue on appeal. He argues that the ALJ in
his case should have recused himself. At one point during the proceedings, Mr.
Duke’s employer filed a pleading that set forth terms of a proposed settlement.
Mr. Duke then filed a motion requesting that the pleading be stricken from the
record and the ALJ recuse himself. The ALJ removed the pleading from the record
and indicated it was inappropriate for including settlement negotiations. The ALJ
did not, however, recuse himself because the pleading and motion to recuse and
-7- strike were filed so close together in time that the ALJ was able to strike the
pleading without reading it.
Mr. Duke argues that the ALJ should have recused himself because
otherwise, it would look from the outside as if the proceedings were tainted. Mr.
Duke does not cite to any statute, rule, or case law to support his position.
Furthermore, he does not question the ALJ’s assertion that the ALJ did not read the
pleading. We review issues of recusal for abuse of discretion. Adkins v.
Wrightway Readymix, LLC, 499 S.W.3d 286, 290 (Ky. App. 2016). Under the
circumstances of this case, we find no error.
We also note that all the alleged errors raised on appeal would be
harmless error because Appellants received the benefits they requested. Kentucky
Rules of Civil Procedure (CR) 61.01 states:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
-8- CONCLUSION
Based on the foregoing, we affirm. Appellants received the benefits
they requested and were not guaranteed mediation. Referring a workers’
compensation case to mediation under 803 KAR 25:300 §4 is discretionary and the
ALJs in these cases did not abuse their discretion.
ALL CONCUR.
BRIEFS FOR APPELLANTS BRAD BRIEF FOR APPELLEE GE HAIER: DUKE AND TONYA LONG: Cate A. Poole Ched Jennings Lexington, Kentucky Louisville, Kentucky BRIEF FOR APPELLEE UNIVERSAL LINEN:
Brent E. Dye Louisville, Kentucky
-9-