Dreisbach Wholesale Florists, Inc. v. Donald Leitner

• Court: Court of Appeals of Kentucky
• Decided: November 9, 2022
• Docket: 2021 CA 001495
• Status: Unknown

Opinion

RENDERED: NOVEMBER 10, 2022; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1495-WC

DREISBACH WHOLESALE FLORISTS, INC. APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-17-94806

DONALD LEITNER; HONORABLE DOUGLAS GOTT, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION APPELLEES BOARD

OPINION REVERSING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellant, Dreisbach Wholesale Florists, Inc. (Dreisbach)

appeals the Workers’ Compensation Board’s (Board) November 19, 2021 opinion

reversing the Administrative Law Judge’s (ALJ) denial of Appellee Donald

Leitner’s motion to reopen his workers’ compensation award. The Board determined Leitner made a prima facie showing of mistake pursuant to KRS1

342.125(1)(c) as to claimed injuries to his neck. Finding error, we reverse.

BACKGROUND

Leitner worked as a delivery driver for Dreisbach. While making a

delivery on February 6, 2017, another vehicle crossed the center line and collided

head-on with Leitner’s delivery van. Leitner rode in an ambulance to the

University of Louisville Hospital following the accident. He complained of pain in

his neck, right shoulder, left knee, left ribs, and back. Hospital staff instructed him

to follow up with his primary care physician.

Beginning the next day, February 7, 2017, Leitner made his first of

several visits to BaptistWorx, a medical practice group in Louisville. BaptistWorx

placed Leitner on work restrictions and referred him to Dr. Kuiper, an orthopedic

specialist, for his left knee pathology. Dr. Kuiper operated on Leitner’s left knee

and prescribed physical therapy. Dr. Kuiper ultimately returned Leitner to work

with no restrictions but observed Leitner had some residual pain in his knee.

Leitner filed an application for resolution of an injury claim on

October 26, 2017. With his application, Leitner included a required medical

history form wherein he stated he received treatment for his neck at University of

Louisville Hospital, BaptistWorx, and Louisville Orthopedic Center. In a

1 Kentucky Revised Statutes.

-2- December 18, 2017 deposition, Leitner testified he saw his primary care physician

for neck pain after the accident. He also testified to ongoing neck pain which

prevented him from turning his head to the right.

Dr. David Waespe performed an independent medical evaluation of

Leitner on December 30, 2017. He assessed Leitner as having one percent whole

person impairment for his right shoulder injury, four percent for his left knee, and

two percent for continued pain that limited his daily activities and ability to work.

Overall, Dr. Waespe assessed Leitner as having seven percent whole person

impairment and assigned Leitner work restrictions. He did not think Leitner could

return to the sort of job he was performing previously due to his left knee and right

shoulder impingement. He also observed that Leitner’s neck was tender to the

touch; however, despite his examination, Dr. Waespe did not find any impairment

of Leitner’s neck.

Dr. Gregory Gleis performed an independent medical evaluation of

Leitner on February 7, 2018 and determined he had a four percent whole person

impairment. Dr. Gleis determined that, although Leitner had subjective pain, there

was no objective medical evidence of a residual injury. He determined Leitner’s

left knee had no deficiency in function, despite previous knee surgery. Leitner

informed Dr. Gleis his neck pain was his primary concern, and that Leitner was

previously referred to a specialist for degenerative disk disease, cervical radiculitis,

-3- and neck pain. Dr. Gleis also reviewed a CT scan that revealed problems with

Leitner’s cervical vertebrae. Despite this, Dr. Gleis found no permanent worsening

of a neck injury or condition and therefore did not recommend surgery on Leitner’s

neck; however, he did note in his report Leitner had constant right neck pain.

Leitner’s injury claim was litigated at a final hearing. He testified to

left knee soreness, to pain in his left lower extremity, and to constant right neck

and shoulder pain.

ALJ Neal determined in his June 11, 2018 opinion and order that

Leitner was only entitled to compensation for his medical expenses arising from

injury sustained to his left knee and right shoulder. Though he acknowledged

Leitner had ongoing neck pain and that Dr. Gleis found Leitner’s neck conditions

had not permanently worsened, he reached no conclusion in his order regarding

Leitner’s neck. There was no appeal to the full Board.

Leitner continued to have shoulder pain. Leitner underwent a cervical

decompression and fusion operation on October 22, 2018, which was unsuccessful

in resolving his pain. However, Leitner received another decompression procedure

on his neck in July 2020, which relieved his shoulder pain. Leitner then obtained

an expert opinion from Dr. Nazar, who opined that Dr. Waespe incorrectly

determined Leitner had no impairment in his neck. In his report, Dr. Nazar stated

his belief that Leitner’s right shoulder pain was likely misdiagnosed, and that

-4- Leitner’s shoulder pain was likely pain resulting from his neck maladies. Dr.

Nazar assessed a 29 percent whole person impairment for Leitner’s neck and

recommended permanent restrictions.

In April 2021, Leitner then filed his motion to reopen his workers’

compensation claim. He argued that (1) he did not receive adequate consideration

of his alleged neck injury from the original ALJ and (2) newly discovered evidence

supported reopening. Leitner included Dr. Nazar’s report in support of his motion.

ALJ Gott denied Leitner’s motion in an order dated June 21, 2021.

Therein, he determined Leitner could not reopen his claim on the basis of a neck

injury that was “alleged, but not proven, awarded, or appealed.” The ALJ held

Leitner had not met his burden of proving his neck injury when originally seeking

compensation for his injuries, and therefore was not entitled to “another bite at the

apple[.]” And, the ALJ determined Dr. Nazar’s report did not constitute newly

discovered evidence, reasoning that just because the report was generated after his

claim for his neck injury was denied does not mean the report’s findings could not

have been discovered by the exercise of due diligence prior to the hearing.

Leitner then filed both a petition for reconsideration and a motion to

amend his motion to reopen. He sought to amend his motion and reopen his claim

on the basis of (1) mistake and (2) a change of condition. ALJ Gott rejected both

the petition and the motion on July 23, 2021. The ALJ determined Dr. Nazar’s

-5- report provided an insufficient basis to reopen Leitner’s claim. Though Dr. Nazar

believed Leitner’s shoulder pain was attributable to a neck injury, the ALJ noted

Leitner had listed neck injury in his original injury claim and that Dr. Gleis already

evaluated Leitner’s neck. The ALJ also determined Dr. Nazar’s report did not

support reopening for a change in condition. Because the June 11, 2018 order

found Leitner was not entitled to compensation for any neck injury, any worsening

of a neck injury could not support reopening his claim.

However, the Board issued an order on November 19, 2021, affirming

in part and reversing in part the order denying Leitner’s motion to reopen, and

remanded the matter to ALJ Gott with instructions to sustain Leitner’s motion.

The Board determined Leitner’s motion was not barred by res judicata because he

had made a prima facie showing of mistake as to the finding that he had not

sustained a compensable neck injury.

Dreisbach now appeals the Board’s order, arguing the Board erred in

determining Leitner’s motion was not barred by res judicata on the basis of

mistake.

STANDARD OF REVIEW

KRS 342.285 designates the ALJ as the finder of fact in workers’

compensation actions. KRS 342.285(2). “[A]s the fact-finder, the ALJ, not this

Court and not the Board, has sole discretion to determine the quality, character,

-6- and substance of the evidence.” Abbott Lab’ys v. Smith, 205 S.W.3d 249, 253 (Ky.

App. 2006) (citing Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999)). “Not

only does the ALJ weigh the evidence, but the ALJ may also choose to believe or

to disbelieve any part of the evidence, regardless of its source.” Id. (citing

Whittaker, 998 S.W.2d at 481).

“The [B]oard shall not substitute its judgment for that of the [ALJ] as

to the weight of evidence on questions of fact[.]” KRS 342.285(2). Because the

ALJ may disregard some evidence while believing other evidence, the Board may

not disturb the ALJ’s decisions if conflicting evidence underlies the ALJ’s

findings; when the Board reviews ALJs’ decisions, it is tasked with deciding

“whether the evidence is sufficient to support a particular finding made by the

ALJ, or whether such evidence as there was before the ALJ should be viewed as

uncontradicted and compelling a different result.” Western Baptist Hosp. v. Kelly,

827 S.W.2d 685, 687 (Ky. 1992). The Board’s review is limited to determining

whether the ALJ acted within his or her powers, whether the result was procured

by fraud, whether the result conforms with KRS Chapter 342, whether the result

“is clearly erroneous on the basis of the reliable, probative, and material evidence

contained in the whole record[,]” and whether the result “is arbitrary or capricious

or characterized by abuse of discretion or clearly unwarranted exercise of

discretion.” KRS 342.285(2)(a)-(e).

-7- “The scope of review by the Court of Appeals shall include all matters

subject to review by the [B]oard and also errors of law arising before the [B]oard

and made reviewable by the rules of the Supreme Court for review of decisions of

an administrative agency.” KRS 342.290. “When reviewing one of the Board’s

decisions, [the appellate] Court will only reverse the Board’s decision when it has

overlooked or misconstrued controlling law or so flagrantly erred in evaluating the

evidence that it has caused gross injustice.” Abbott Lab’ys, 205 S.W.3d at 253

(citing Western Baptist, 827 S.W.2d at 687-88).

ANALYSIS

“The doctrine of res judicata (also known as the doctrine of the

finality of judgments) is basic to our legal system and stands for the principle that

once the rights of the parties have been finally determined, litigation should end.”

Slone v. R & S Mining, Inc., 74 S.W.3d 259, 261 (Ky. 2002). But, res judicata is

not ironclad, and KRS 342.125 permits reopening final workers’ compensation

awards on grounds of fraud, newly discovered evidence which could not have been

discovered upon the exercise of due diligence, mistake, or change of disability.

KRS 342.125(1)(a)-(d). “Reopening is the remedy for addressing certain changes

that occur or situations that come to light after benefits are awarded.” Dingo Coal

Co. v. Tolliver, 129 S.W.3d 367, 370 (Ky. 2004).

-8- In its petition, Dreisbach contends the Board abused its discretion in

reversing ALJ Gott’s order denying Leitner’s motion to reopen his award and

believes ALJ Gott’s opinion overruling Leitner’s motion should be reinstated.

Dreisbach notes that ALJ Neal considered conflicting evidence regarding Leitner’s

neck injury and found lacking the evidence presented in support of a compensable

neck injury, but finding the evidence to the contrary conclusive of the issue. It

therefore argues the Board failed to defer to ALJ Neal in his role as finder of fact

by reopening the case to allow presentation of evidence discoverable before the

hearing ALJ Neal conducted. We agree.

When an ALJ considers extensive, but conflicting, evidence regarding

a workers’ compensation claim in making his ruling upon a final hearing, a

subsequent medical opinion that could have been obtained prior to the close of

evidence will not justify reopening the case on the ground of “mistake” as

contemplated by KRS 342.125(1)(c); res judicata still prevents reopening of an

already final award. Russellville Warehousing v. Bassham, 237 S.W.3d 197, 202-

03 (Ky. 2007). In other words, “the purpose of the ‘mistake’ provision is not to

give the losing party an opportunity to ‘bring up reinforcements’ and relitigate the

claim but rather to correct a decision that was the product of a misconception

concerning the worker’s actual condition.” Slone, 74 S.W.3d at 262 (quoting

Messer v. Drees, 382 S.W.2d 209, 213 (Ky. 1964)).

-9- In Russellville Warehousing v. Bassham, a workers’ compensation

claimant was exposed to manganese dust for approximately seven years during his

employment, which caused his health to deteriorate until he was unable to feed

himself or move on his own. 237 S.W.3d at 198. When ruling on the claimant’s

application for benefits, the ALJ heard testimony from multiple doctors who had

reached differing conclusions regarding what caused the claimant’s condition –

including diagnoses of Parkinson’s disease, progressive ataxia resulting from acute

manganese toxicity, and viral or prion diseases. Id. at 198-200. The ALJ

determined the claimant suffered from a neurological disease resulting from

occupational hazards posed by manganese exposure and awarded total disability.

Id. at 200. The claimant then died, and an autopsy confirmed manganese

poisoning as cause of death. Id. However, the employer’s expert concluded “the

autopsy data did not support a diagnosis of manganese toxicity and that pathologic

examination indicated that Bassham appeared to have suffered from a slow virus.”

Id. at 201. On that basis, the employer moved to reopen the ALJ’s decision and

revoke all awards on the basis of newly discovered evidence or mistake. Id.

The Court in Bassham explained that “‘newly discovered evidence’ is

a legal term of art. It refers to evidence that existed but that had not been

discovered and with the exercise of due diligence could not have been discovered

at the time a matter was decided.” Id. The evidence offered in this case for

-10- reopening does not satisfy that definition because Dr. Nazar’s report could have

been generated before the hearing. Dr. Nazar’s report, as the Court in Bassham

would denominate it, is “post-award evidence that the finding was mistaken” but

such evidence “did not show a ‘mistake’ within the meaning of KRS 342.125.” Id.

at 203. The mistake provision of KRS 342.125(1)(c) “is not an invitation to retry a

litigated claim and that litigation must end when a decision becomes final unless

extraordinary circumstances exist[,]” said the Kentucky Supreme Court when it

affirmed the ALJ’s refusal to reopen the award. 237 S.W.3d at 202.

The Court further explained that, because the cause of Bassham’s

disability was “hotly contested” initially and because the parties offered extensive,

but conflicting, evidence of the cause of his disability – including extensive

evidence of prion or other disease – the ALJ did not err in finding there had been

no prima facie showing of mistake sufficient to reopen the award. Id. As in

Bassham, Leitner’s neck injury was a hotly contested issue before ALJ Neal, with

conflicting evidence presented for and against compensation. Leitner complained

of neck pain to multiple doctors, and the ALJ considered the findings and

testimony of those doctors. Dr. Waespe found no impairment in Leitner’s neck.

Dr. Gleis also made this finding, despite a scan which showed some degree of

malady in Leitner’s cervical spine. The ALJ also considered the fact Leitner

complained of neck pain to his primary care physician after the accident, and

-11- Leitner experienced pain when turning his head to the right. The ALJ considered

these and other conflicting findings regarding Leitner’s neck, but ultimately found

Dr. Gleis’ and Dr. Waespe’s conclusions to be more convincing. The ALJ – not

the Board – is tasked with assigning weight to evidence, and the Board therefore

misapplied controlling law by assuming the ALJ’s role.

Subsequent medical findings are insufficient to disturb an ALJ’s

findings regarding conflicting evidence, and thus Dr. Nazar’s report did not

provide a basis to usurp ALJ Neal in his role as fact finder. The Board misapplied

controlling law in reaching the opposite conclusion.

Dr. Nazar’s report does not suddenly make evidence of Leitner’s

claimed neck injury uncontradicted, and therefore the Board erred in determining

the ALJ was compelled to reach a different result than he did. Our review reveals

the Board misapplied controlling law by substituting its factual findings for those

of the ALJ; the ALJ is empowered to believe or disbelieve evidence, not the Board.

Res judicata saves Dreisbach from relitigating an issue already known and

considered by the ALJ and, therefore, we must reverse the Board’s order.

CONCLUSION

For the foregoing reasons, we reverse the Board’s November 19, 2021

opinion requiring the ALJ to reopen Leitner’s award.

ALL CONCUR.

-12- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Joel W. Aubrey Paul A. Brizendine Michelle Enoch Jeffersonville, Indiana Louisville, Kentucky

-13-