RENDERED: FEBRUARY 21, 2025; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0796-WC
FORD MOTOR COMPANY APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-13-00501
JOSEPH BADALL; HONORABLE PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY APPELLEES
AND
NO. 2024-CA-0932-WX
JOSEPH BADALL CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-13-00501
FORD MOTOR COMPANY; HONORABLE PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY CROSS-APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
CALDWELL, JUDGE: Ford Motor Company (Ford) petitions for review of an
opinion of the Workers’ Compensation Board (Board) affirming an Administrative
Law Judge (ALJ) decision awarding Joseph Badall (Badall) enhanced permanent
partial disability (PPD) benefits upon reopening. Specifically, Ford challenges the
application upon reopening of the two-multiplier in KRS1 342.730(1)(c)2. – which
calls for the doubling of PPD benefits awarded to employees who returned to
employment at the same or greater wages than before the injury “[d]uring any
period of cessation of that employment, temporary or permanent, for any reason,
with or without cause[.]”
Badall cross-petitions for review, challenging the ALJ’s denial of
temporary total disability (TTD) benefits for the nearly three-year period between
the filing of Badall’s motion to reopen and his undergoing a surgery, which was
approved by an ALJ a few months after the filing of Badall’s motion to reopen.
1 Kentucky Revised Statutes.
-2- We affirm.
FACTS
In February 2014, an ALJ entered an Opinion, Order, and Award
(initial ALJ decision). The ALJ found that due to Badall’s work as a forklift
operator for Ford, Badall had suffered a cumulative trauma injury to his back
which manifested on January 7, 2013.
The ALJ found Badall was medically released to return to work with
restrictions on or about March 28, 2013. The ALJ further found Badall had
returned to work full-time at Ford in other positions since April 2013, earning the
same wages as before his injury. The ALJ noted Badall stated he was not seeking
application of the two- or three-multipliers in KRS 342.730 in his brief.
The ALJ awarded Badall TTD benefits from January 7, 2013, through
March 28, 2013. The ALJ also awarded Badall PPD benefits with no statutory
multipliers for 425 weeks with these benefits suspended during periods of TTD
and subject to the limitations set forth in KRS 342.730(4) as of January 7, 2013.
Lastly, the ALJ ordered that Badall shall recover from Ford benefits for medical
care required for the cure and relief of his back injury.
Neither party filed a petition for review of the initial ALJ decision.
Badall retired from Ford as of May 1, 2016.
-3- In March 2018, Ford filed a motion to reopen to assert a medical fee
dispute. Ford challenged Badall’s request for back surgery recommended by Dr.
John Harpring, alleging the surgery was not medically necessary and/or not related
to the work injury of January 7, 2013. In early April 2018, the ALJ found Ford
had made a prima facie showing for reopening. However, in late May 2018, the
claim was returned to the Frankfort motion docket for consideration of a motion to
reopen for worsening, as the ALJ found the dispute to be beyond the scope of its
medical fee dispute docket.
In early June 2018, Badall filed a motion to reopen, checking a box on
a form indicating the basis was a change of disability. (Ford points out the box for
conforming an award to an employee’s work status was not checked.) Badall
stated in his motion to reopen:
The Employer filed a medical fee dispute denying a request for a bilateral L4-5 discectomy by Dr. Harpring. The Claimant is requesting TTD during the period of recuperation and possibly additional PPD and/or PTD [permanent total disability] depending on the outcome of the surgery. This affiant feels that this warrants a reopening under KRS 342.125 for this issue in addition to the medical issues. In addition, Claimant is no longer working for the same or greater wages and therefore may be entitled to a modification of benefits pursuant to KRS 342.730(1)(c)(1) or (2).
-4- In mid-June 2018, the chief ALJ entered an order passing Badall’s motion to
reopen for TTD, should he prevail on the request for surgery, pending a decision
on the medical fee dispute.
In November 2018, ALJ Jane Rice-Williams entered an interlocutory
opinion and order resolving the medical fee dispute in Badall’s favor and finding
the recommended back surgery to be medically reasonable, necessary, and work-
related and thus compensable. The ALJ also ordered that TTD shall be paid
beginning the date of surgery and that: “Following surgery and upon reaching
MMI [maximum medical improvement], either party may make a motion to
terminate TTD and place the claim on the active docket.”
In April 2020, the ALJ ordered the parties to submit status reports.
Shortly thereafter, Badall filed a status report by counsel noting Badall now lived
in Florida and had difficulty scheduling appointments with Dr. Harpring in
Kentucky, but Badall had seen Dr. Harpring as of early March 2020, just before the
COVID-19 shutdown. A few months later, the case was assigned to ALJ Peter
Naake.
The ALJ ordered that additional status reports be filed several months
later. Badall filed additional status reports in December 2020 and January 2021
expressing concerns that COVID-19 restrictions might delay scheduling the
surgery and stating that his blood sugar was high during pre-testing, so he was
-5- prescribed medication to bring that down. The ALJ again ordered the parties to
file status reports in the summer of 2021 and Badall then filed a status report
indicating the surgery had been approved and he was awaiting scheduling.
Badall underwent the requested back surgery on August 11, 2021, and
Ford began paying TTD as of that date. Ford filed a motion to terminate TTD as
of December 26, 2021, when Badall reached the age of 70. See KRS 342.730(4),
as amended effective Jul. 14, 2018. The ALJ granted this motion.
Next, Ford asserted another medical fee dispute. The case was
referred to mediation which failed to resolve the parties’ disputes. After the parties
presented proof including medical reports, the ALJ issued an opinion, order, and
award in December 2023 (“ALJ decision on reopening”).
The ALJ awarded Badall enhanced PPD benefits (applying the two-
multiplier) for the period from Badall’s early May 2016 retirement until Badall’s
70th birthday in late December 2021 with interruptions for periods of TTD. The
ALJ also awarded Badall TTD benefits from the August 2021 date of surgery until
Badall’s 70th birthday in late December 2021. However, the ALJ denied Badall’s
request for TTD during the time frame between the date Badall’s motion to reopen
was filed (June 4, 2018) and the date surgery occurred (August 11, 2021).
After the ALJ denied the parties’ petitions for reconsideration, both
parties appealed to the Board. The Board affirmed the ALJ decision on reopening
-6- in an opinion entered June 7, 2024 (Board opinion). Further facts will be provided
as necessary in our analysis.
ANALYSIS
Standard of Review
When the Court of Appeals reviews a Workers’ Compensation Board
opinion resolving an appeal of an ALJ decision, this Court should not “correct the
Board” unless “the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the evidence
so flagrant as to cause gross injustice.” Western Baptist Hosp. v. Kelly, 827
S.W.2d 685, 687-88 (Ky. 1992).
We first address Ford’s challenge to the award of enhanced PPD
benefits applying the two-multiplier in KRS 342.730(1)(c)2. upon reopening.
Application of the Two-Multiplier in KRS 342.730(1)(c)2. Upon Reopening
KRS 342.730(1)(c)2. states:
If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this
-7- subsection. This provision shall not be construed so as to extend the duration of payments.
(Emphasis added.)
Moreover, KRS 342.730(1)(c)4. states: “Notwithstanding the
provisions of KRS 342.125, a claim may be reopened at any time during the period
of permanent partial disability in order to conform the award payments with the
requirements of subparagraph 2 of this paragraph.”
In the decision on reopening, the ALJ ordered that Badall’s PPD
benefits be enhanced by the two-multiplier in KRS 342.730(1)(c)2. beginning on
May 2, 2016, and continuing during the 425-week period which started January 7,
2013 “but interrupted and extended by all periods of temporary disability” and
with income benefits ceasing when Badall reached age 70.
Ford contends the Board erred in affirming the ALJ’s decision on
reopening. It contends application of the two-multiplier was barred by res
judicata. In the alternative, it argues the ALJ erred in retroactively ordering the
enhancement prior to the date Badall filed his motion to reopen. We first address
the res judicata argument.
No Reversible Error in Board’s Affirming ALJ’s Determination that Application of the Two-Multiplier in KRS 342.730(1)(c)2. Was Not Barred by Res Judicata
Ford notes the initial ALJ decision states Badall’s brief indicated he
was not seeking application of the two-multiplier and the ALJ declined to address
-8- whether Badall could return to the type of work performed at the time of injury
because Badall “has withdrawn the issue.” Ford asserts Badall chose to waive any
entitlement to enhanced PPD benefits before the initial ALJ decision and points out
that PPD benefits with no statutory multiplier were awarded in the ALJ’s initial,
final decision. Ford also points out Badall did not appeal from the ALJ’s initial
decision.
Ford states Badall asserted entitlement to the two-multiplier in 2018,
but contends he failed to list two-multiplier application as a contested issue or
argue for this enhancement of PPD benefits during the interlocutory stage of
proceedings. Ford also asserts Badall did not argue he was entitled to two-
multiplier enhancement in 2016 (when Badall retired), but instead waited until
after his benefits terminated entirely to argue entitlement to enhanced PPD
benefits. Ford submits that Badall had an opportunity to assert entitlement to the
two-multiplier earlier but withdrew the issue.
In sum, Ford contends the concepts of issue preclusion and claim
preclusion apply. Therefore, Badall’s claim for enhanced PPD benefits pursuant to
KRS 342.730(1)(c)2. is barred by res judicata in Ford’s estimation.
In response, Badall points out that his brief to the ALJ prior to the
initial ALJ decision was based on the fact situation at that time – i.e., the fact that
he was working and was not making less money than before his injury. So, he
-9- asserts entitlement to statutory multipliers was not an issue then. Badall contends
application of a statutory multiplier did not become an issue until, after returning to
employment at the same or greater wages, his employment ceased upon retirement.
As Badall points out, the Board agreed with the ALJ’s rejection of
Ford’s res judicata arguments. The Board opinion concluded that by operation of
law, “KRS 342.730(1)(c)2. clearly entitles an injured worker earning the same or
greater wages to the enhanced PPD benefits during any cessation of work during
the applicable period of benefits.” (Emphasis in original.)
Moreover, the Board opinion agreed with the ALJ that application of
the two-multiplier in KRS 342.730(1)(c)2. vested automatically upon Badall’s
retirement on May 1, 2016. Furthermore, the Board opinion noted this statute
contains no language indicating this entitlement “expires, can be waived or is
otherwise terminated except upon a return to work, entitlement to TTD benefits, or
achieving the age of 70.” (Emphasis in original.) Thus, based on the plain
language of the statute, the Board concluded that since Badall never returned to
work after his retirement and was not entitled to TTD benefits prior to the surgery,
he was entitled to enhanced PPD benefits by operation of law from May 2, 2016,
until the date of surgery (August 11, 2021).
Having carefully reviewed the record and applicable law, we discern
no reason to correct the Board’s conclusion that application of the two-multiplier
-10- in KRS 342.730(1)(c)2. to enhance PPD benefits on reopening was not barred by
res judicata. See Kelly, 827 S.W.2d at 687-88. There is no dispute that Badall
ceased working during the 425-week period of PPD benefits commencing on
January 7, 2013 when he retired on May 1, 2016 and then never returned to work.
We do not perceive that the Board “committed an error in assessing the evidence
so flagrant as to cause gross injustice.” See id. at 688.
Not only do we perceive no flagrant error in assessing the evidence,
but we also perceive no indication that the Board “overlooked or misconstrued
controlling statutes or precedent” in affirming the ALJ’s determination that res
judicata did not bar enhancement of PPD benefits upon reopening. See id. at 687-
88. Instead, the resolution of this issue by both the Board and the ALJ is entirely
consistent with the plain language of KRS 342.730(1)(c)2. and 4. and with
controlling precedent from our Supreme Court.
Recent precedent from our Supreme Court recognizes that when a
workers’ compensation statute “expressly provides for reopening under specified
conditions,” res judicata does not apply when such specified conditions are met.
-11- Lakshmi Narayan Hosp. Group Louisville v. Jimenez, 653 S.W.3d 580, 587 (Ky.
2022) (quoting Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681, 682 (Ky.
1972)).2
Moreover, the plain language of KRS 342.730(1)(c)2. clearly provides
that if claimants return to work at the same or greater wages than their average
weekly wages at the time of injury, PPD benefits must be enhanced by the two-
multiplier during any cessation of work “for any reason” during the period for
which benefits are awarded. And KRS 342.730(1)(c)4. states: “Notwithstanding
the provisions of KRS 342.125, a claim may be reopened at any time during the
period of permanent partial disability in order to conform the award payments with
the requirements of” KRS 342.730(1)(c)2. (Emphasis added.)
In sum, we discern no reversible error in the Board’s rejection of
Ford’s argument that res judicata barred the application of the two-multiplier to
enhance Badall’s PPD benefits upon reopening.3
2 As our Supreme Court recently made clear, workers’ compensation proceedings are statutorily based administrative proceedings so res judicata applies differently than it would to judicial actions and “authority based upon judicial proceedings is not necessarily binding in the context of proceedings under Chapter 342.” Jimenez, 653 S.W.3d at 587 (quoting Whittaker v. Reeder, 30 S.W.3d 138, 143 (Ky. 2000)). In other words, “Compensation cases may be reopened on grounds that would not be sufficient to authorize the disturbance of judgments in common law or equity proceedings.” Stambaugh, 488 S.W.2d at 682. 3 Within Ford’s argument on res judicata, Ford also suggests that application of the two- multiplier in KRS 342.730(1)(c)2. on reopening should have been denied based on estoppel and/or laches. The Board implicitly rejected such arguments about estoppel and laches in this context, stating that entitlement to enhanced benefits under KRS 342.730(1)(c)2. for periods of cessation of employment during the disability period arises by operation of law and cannot be
-12- Next, we address Ford’s argument that the Board erred in affirming
the ALJ’s determination that enhancement of PPD benefits pursuant to KRS
342.730(1)(c)2. commenced upon Badall’s retirement in May 2016 despite
Badall’s not filing his motion to reopen until June 2018.
No Reversible Error in Board’s Affirming ALJ’s Commencement of Enhanced Benefits Pursuant to KRS 342.730(1)(c)2. Prior to the Filing of Badall’s Motion to Reopen
KRS 342.125(4) provides in pertinent part: “Reopening shall not
affect the previous order or award as to any sums already paid thereunder, and any
change in the amount of compensation shall be ordered only from the date of filing
the motion to reopen.” Ford contends the Board erred in affirming the ALJ’s
determination that application of the two-multiplier in KRS 342.730(1)(c)2. to
enhance Badall’s PPD’s benefits commenced in May 2016 – prior to Badall’s
filing his motion to reopen in June 2018. Moreover, in its Petition for Review,
Ford argues the Board erred in affirming the ALJ because the ALJ, in Ford’s
estimation, “misinterpreted and misapplied” an unpublished opinion from our
Supreme Court “when determining the date of commencement.”
waived or expire. Moreover, Ford has not cited any precedent regarding estoppel or laches in the specific context of workers’ compensation cases (especially reopening proceedings) in its petition for review to challenge the Board’s implicit rejection of its arguments about estoppel and laches. So, we decline to discuss its undeveloped arguments about estoppel and laches further.
-13- Specifically, Ford contends the ALJ misconstrued “the Kentucky
Supreme Court’s ruling in Muthler v. Climate Control of Kentucky . . . .”4 Ford
suggests the ALJ improperly used Muthler as authority to apply the two-multiplier
beginning in May 2016, prior to Badall’s filing a motion to reopen in June 2018.
Ford contends Muthler does not apply here because the ALJ in Muthler awarded
two-multiplier enhancement of PPD pursuant to KRS 342.730(1)(c)2. prior to the
filing of the motion to reopen. More specifically, prior to the filing of the motion
to reopen, the ALJ entered an amended award generally stating Muthler was
entitled to two-multiplier enhancement for “any” periods of cessation of
4 Oddly, Ford does not provide a full, proper citation for the unpublished Kentucky Supreme Court opinion it contends the ALJ misapplied in its petition for review. However, Ford appears to be referring to Muthler v. Climate Control of Kentucky, Nos. 2010-SC-000302-WC and 2010- SC-000334-WC, 2011 WL 1642447 (Ky. Apr. 21, 2011) (unpublished) (“Muthler”).
Ford does provide a proper citation for the unpublished opinion by this Court, Climate Control of Kentucky v. Muthler, Nos. 2009-CA-001371-WC and 2009-CA-4761-WC, 2010 WL 1427326 (Ky. App. Apr. 9, 2010) (“Climate Control”), which was affirmed by the Supreme Court in Muthler, 2011 WL 1642447.
Unpublished opinions by the Kentucky Supreme Court and the Court of Appeals are not binding authority. Kentucky Rules of Appellate Procedure (RAP) 41(A). Nonetheless, such unpublished opinions from Kentucky appellate courts may be cited for consideration if other RAP 41(A) requirements are met, including the citing party’s stating the unpublished opinion is not binding and there being a lack of published precedent from Kentucky appellate courts adequately addressing the legal issue argued by the citing party. See RAP 41(A)(3)-(4).
Ford stated an unpublished opinion is not binding authority in its petition for review. Moreover, there appears to be no published precedent from Kentucky appellate courts regarding the specific issue raised by Ford about the proper commencement date for enhancing benefits pursuant to KRS 342.730(1)(c)2. upon reopening. Thus, we discuss the unpublished opinions of Kentucky appellate courts in Muthler and Climate Control as persuasive authority in the absence of prior published precedent by Kentucky appellate courts on this issue.
-14- employment during the disability period without ordering the application of the
two-multiplier during any specified time frame.5
Badall disagrees with Ford’s arguments on this issue, simply stating
that the ALJ did not misunderstand Muthler and correctly relied upon it to
retroactively enhance PPD benefits by the two-multiplier in KRS 342.730(1)(c)2.
according to the clear language of the statute.
Certainly, Muthler is not factually or procedurally identical to this
case. For example, the ALJ ordered that Muthler was entitled to the application of
the two-multiplier in KRS 342.730(1)(c)2. for any periods of cessation of
employment before the motion to reopen was filed and the basis of Muthler’s
motion to reopen was the employer’s alleged refusal to provide enhanced benefits
awarded by the ALJ.6 In fact, the Board stated Muthler should have filed an
enforcement action in circuit court rather than a motion to reopen before the ALJ.7
5 See Climate Control, 2010 WL 1427326, at *2-3 (noting that prior to claimant’s filing a motion to reopen in late 2005, the ALJ amended the original award to state: “[S]ince Plaintiff initially returned to work at an average weekly wage equal to or greater than $653.53, he is entitled to enhanced benefits pursuant to KRS 342.730(1)(c)(2) for any period of cessation of that employment, either temporary or permanent, for any reason, with or without cause. During any cessation of that employment, weekly benefits of $114.30 shall be doubled to $228.60.”). 6 Climate Control, 2010 WL 1427326, at *3. 7 Climate Control, 2010 WL 1427326, at *4.
-15- Nonetheless, the Board in Muthler addressed the issue of whether,
upon reopening, enhanced benefits pursuant to KRS 342.730(1)(c)2. could
commence prior to the filing of the motion to reopen. It concluded such enhanced
benefits could commence prior to the filing of the motion to reopen despite any
apparent conflict with KRS 342.125(4).8 Noting the employer’s argument that
such enhanced benefits should not commence prior to the filing of the motion to
reopen pursuant to KRS 342.125(4), our Supreme Court nonetheless agreed with
the Board and stated:
Although KRS 342.125(4) requires “any change in the amount of compensation” to be ordered “only from the date of filing the motion to reopen,” KRS 342.730(l)(c)2. states unequivocally that weekly benefits for partial disability “shall be” twice the amount otherwise payable “[d]uring any period of cessation” of employment at the same or a greater wage. Mindful that KRS 342.730(l)(c)2. is a more specific provision that applies only to a discrete class of awards entered at reopening, we conclude that the legislature intended by its unequivocal language to exempt from the limitation imposed by KRS 342.125(4) those awards entered for the purpose of conforming the payments ordered previously with the requirements of subparagraph 2. of KRS 342.730(l)(c). In other words KRS 342.125(4) does not govern the date for commencing such an award. KRS 342.730(1)(c) 2. generally requires the award to commence with the cessation of employment at the same or a greater wage.
8 Muthler, 2011 WL 1642447, at *3.
-16- (Footnote omitted.)9
Especially given the lack of published precedent on point, we cannot
fault the ALJ or the Board for following our Supreme Court’s unpublished opinion
in Muthler. While Muthler may be different from this case in certain respects,10
our Supreme Court nonetheless made clear therein that KRS 342.125(4) does not
control when enhanced benefits pursuant to KRS 342.730(1)(c)2. commence upon
reopening. Instead, our Supreme Court found the plain language of the more
specific statute (KRS 342.730(1)(c)2.) controlling. So, we do not perceive that the
Board overlooked or misconstrued controlling statutes and precedent in affirming
the ALJ’s awarding enhanced benefits commencing when Badall ceased working
in May 2016, prior to the filing of his motion to reopen. And so, we discern no
9 Muthler, 2011 WL 1642447 at *5. 10 For example, Muthler presented issues about whether enhanced benefits pursuant to KRS 342.730(1)(c)2. could commence prior to the amended award entered by the ALJ in 2004 which preceded the filing of the motion to reopen in 2005. See Muthler, 2011 WL 1642447, at *5. (“The Court of Appeals did not err when concluding that double benefits could not be ordered in this case before May 19, 2004. ALJ Terry’s amended award of May 19, 2004 ordered the employer to pay a basic income benefit from the date that the period of permanent partial disability commenced and ordered the claimant to produce income tax returns for 2002 and 2003 within 10 days. He failed to do so or to appeal the decision. As a consequence the basic benefit became final with respect to the claimant’s entitlement for the period before May 19, 2004.”). Moreover, the amended award entered prior to the motion to reopen in Muthler expressly called for the enhancement of PPD benefits during any periods of cessation of employment pursuant to KRS 342.730(1)(c)2. See Muthler, 2011 WL 1642447, at *2 (“The order amended the claimant’s award to provide for a basic income benefit of $114.30 for 425 weeks from October 12, 2001 that was subject to being doubled for any period of cessation of that employment.”). (Internal quotation marks omitted.) See also Climate Control, 2010 WL 1427326, at *2-3, which we previously quoted in footnote 5 of this Opinion.
-17- reversible error in the Board’s resolution of this issue pursuant to the standard
established in Kelly, 827 S.W.2d at 687-88.
Next, we consider Badall’s cross-petition for review of the denial of
TTD Benefits for the period between the June 2018 filing of his motion to reopen
and his back surgery on August 11, 2021.
Denial of TTD Benefits from Date of Filing Motion to Reopen (June 4, 2018) Until Date of Surgery (August 11, 2021) Properly Affirmed by Board
Badall claims the ALJ erred in denying him TTD benefits during the
period between his filing his motion to reopen in June 2018 and his undergoing the
requested surgery in August 2021. He argues he was entitled to TTD from the date
he filed his motion to reopen (June 4, 2018) until he reached the age of 70 in late
December 2021 – based on his assertions that he was unable to return to the
employment he had at the time of his injury and was not at maximum medical
improvement (MMI) when he filed his motion to reopen.
KRS 342.0011(11)(a) defines temporary total disability as meaning
“the condition of an employee who has not reached maximum medical
improvement from an injury and has not reached a level of improvement that
would permit a return to employment[.]” See also Magellan Behavioral Health v.
Helms, 140 S.W.3d 579, 581 (Ky. App. 2004) (“In order to be entitled to
temporary total disability benefits, the claimant must not have reached maximum
-18- medical improvement and not have improved enough to return to work.”).
(Emphasis in original.)
The ALJ noted that despite the parties’ apparent focus on whether
Badall was able to return to his customary work at Ford during the contested
period, Badall’s entitlement to TTD for this contested period depended on him not
being at MMI then. The ALJ found Badall was at MMI and so was ineligible for
TTD benefits during this contested period, explaining his reasoning in detail.
The ALJ decision on reopening quoted the definition of maximal [sic]
medical improvement in the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (5th ed.): “condition or state that is well
stabilized and unlikely to change substantially in the next year, with or without
medical treatment. Over time, there may be some change; however, further
recovery or deterioration is not anticipated.”
Next, the ALJ stated: “When a patient is anticipating having a
surgery in the near future, he can be considered not to be at MMI because his
medical condition is expected to change with the surgery.” The ALJ further
explained that in workers’ compensation cases, the decision to have surgery
entailed three parts: 1) a physician’s proposing or recommending the surgery, 2)
the claimant’s consenting to the surgery after consultation with the surgeon, and 3)
the payment obligor’s agreeing to pay for the surgery or being ordered to do so.
-19- Based on the November 2018 interlocutory order approving the surgery as
compensable, the ALJ found that the first and third parts of the decision for surgery
were fulfilled at that time, but that Badall did not decide to pursue surgery until
2021. So, the ALJ determined Badall was at MMI for the period between his filing
his motion to reopen in June 2018 and his deciding to have surgery in August 2021
and therefore was not entitled to TTD for that contested period, explaining:
[Badall’s] decision not to pursue surgery meant that his medical condition was not likely to change in the next year until he had taken steps to proceed with the surgery. In fact Badall’s condition did not change and remained stable for two years and nine months after ALJ Rice- Williams’ interlocutory decision, until he underwent surgery on August 11, 2021. Badall did not testify as to the date he finally decided to proceed with the surgery or the reasons he delayed for two years and nine months before undergoing the surgery after it was approved, and no other evidence of record explains this delay. [11]
Therefore, Badall met the definition of having reached maximum medical improvement, and was not entitled to temporary total disability benefits, until the time he decided to have surgery and contacted Dr. Harpring to schedule it. At that time his condition would have been expected to change within the next year. The date Badall decided to have surgery and contacted Dr. Harpring was not proven by evidence of record.
11 Perhaps some might view the status reports filed in the record in 2020 and 2021 as offering some explanations for delay (including COVID-19 restrictions and health conditions), but neither party discussed these status reports in their arguments about TTD. Moreover, such status reports appear more akin to pleadings than evidence and Badall has not cited any evidence (such as testimony or documentary evidence) explaining the delay in his undergoing surgery in his cross- petition for review.
-20- The ALJ also stated he found persuasive Dr. Loeb’s opinion testimony that Badall
was at MMI in July 2018.12
Badall contends the Board erred in affirming the ALJ’s denying him
TTD benefits for the period between his filing the motion to reopen in June 2018
and his undergoing surgery in August 2021. He suggests that the November 2018
interlocutory order contains a clear finding he was not at MMI at that time since
the ALJ ordered TTD paid until he reached MMI. However, this interlocutory
order clearly provided only that TTD be paid from the date of surgery until Badall
reached MMI thereafter – thus it did not clearly indicate he was not at MMI before
the surgery.
Moreover, even a statement in Badall’s cross-petition suggests it is
proper to consider a claimant to be at MMI when the claimant does not undergo a
recommended surgery:
The Administrative Law Judges routinely award benefits from the date of surgery, kind of a condition precedent, so they are not put in a position where TTD has been
12 In his order denying the parties’ respective petitions for reconsideration, the ALJ further explained that he found Badall to be at MMI during the contested period from June 2018 until the August 2021 surgery based on Badall’s being at MMI at the time of the initial ALJ decision, Dr. Loeb’s opinion that Badall was at MMI in 2018, and a lack of change in Badall’s condition until the August 2021 surgery. The ALJ stated: “The mere fact that Badall had been advised to undergo surgery did not change his condition. The definition of maximum medical improvement is a condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. Because Badall did not act upon the advice to have surgery until two years and nine months later, he did not anticipate a substantial change in his condition until the time he underwent the lumbar fusion, which was well over a year after he claimed to be anticipating a change in his condituion [sic].” (Page 2 of Order Denying Reconsideration.)
-21- ordered and the surgery does not take place because the Claimant, as here, would be at MMI if the surgery did not take place, but here it did.
Though Badall ultimately did undergo surgery, he did not do so for nearly three
years after an ALJ approved the surgery and the ALJ found Badall offered no
evidence explaining such delay in pursuing the surgery or indicating any change in
his condition during this period.
Although the unexplained delay played a key part in the ALJ’s
decision on TTD, the parties do not discuss in depth the ALJ’s findings about how
the unexplained delay in Badall’s undergoing surgery affected whether he was at
MMI or entitled to TTD benefits in their briefs to this Court.
In his statement of the case, Badall suggests the ALJ erred in finding
Badall to be at MMI prior to the November 2018 interlocutory order based on
Ford’s argument that an extended period of TTD “based upon a unilateral delay”
would be improper. Badall contends such a unilateral delay “has absolutely no
bearing on the factual and legal issues here.” However, Badall cites no authority
for this contention and does not discuss this contention any further in the argument
section of his cross-petition. See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754,
759 (Ky. App. 2005) (“Our courts have established that an alleged error may be
deemed waived where an appellant fails to cite any authority in support of the
issues and arguments advanced on appeal. . . . It is not our function as an appellate
-22- court to research and construct a party’s legal arguments, and we decline to do so
here.”). (Citations omitted.)
In his argument about TTD, Badall asserts he was not at MMI from
June 4, 2018 through August 11, 2021 based on Dr. Nazar’s testimony that Badall
would likely not reach MMI until about a year after the surgery. However, the
ALJ acknowledged Dr. Nazar opined Badall was not at MMI when the surgery was
performed or during the preceding months when issues about whether surgery was
medically necessary or appropriate were being litigated. Yet, the ALJ did not
indicate he found Dr. Nazar’s opinion on this matter persuasive. Instead, the ALJ
found Dr. Loeb’s opinion to the contrary persuasive.
Moreover, the ALJ found Badall had not presented substantial
evidence to support altering the terms of the November 2018 interlocutory decision
which awarded TTD benefits beginning on the date of surgery. So, in the decision
on re-opening, the ALJ declined to “arbitrarily change that award without
substantial evidence of a different date that Badall was temporarily totally
disabled.” Instead, consistent with the November 2018 interlocutory order, the
ALJ concluded Badall was entitled to TTD from August 11, 2021 (the date of
surgery) until December 26, 2021 (the date Badall reached age 70).
On appeal, the Board noted that Badall provided no explanation for
the nearly three-year delay between the November 2018 interlocutory order and
-23- Badall’s undergoing the surgery in August 2021 and offered no evidence about this
issue. The Board affirmed the ALJ’s denial of TTD for the contested period,
stating the ALJ had “thoroughly reviewed the supplemental medical evidence,
performed the proper analysis, and clearly provided the basis for his determination
to rely on Dr. Loeb’s opinion that Badall had reached MMI in 2018 and that his
condition did not change prior to the surgery date.” The Board also concluded the
ALJ’s decision to deny TTD for the time between Badall’s filing his motion to
reopen in June 2018 and his undergoing surgery in August 2021 was supported by
substantial evidence and that the evidence did not compel a contrary result.
Ford points out in its response to the cross-petition for review that
Badall did not dispute that Dr. Loeb’s testimony was substantial evidence
supporting the ALJ’s decision to deny TTD from June 2018 until the date of
surgery. It also asserts that Badall failed to cite any law which the ALJ ignored or
misapplied in denying Badall TTD for the time at issue.
Despite the parties’ apparent focus on whether the ALJ erred, our
focus is on whether the Board flagrantly erred in its assessment of the evidence,
resulting in gross injustice, or overlooked or misconstrued controlling statutes and
precedent in affirming the ALJ’s denial of TTD during the contested period. See
Kelly, 827 S.W.2d at 687-88.
-24- Having reviewed the record and applicable law, we discern no
reversible error in the Board’s affirming the ALJ on this issue. Badall did not
challenge in his cross-petition the ALJ’s finding, affirmed by the Board, that he
offered no evidence explaining the nearly-three-year delay between the November
2018 interlocutory order approving the surgery and his undergoing the surgery in
August 2021. Nor did he cite to any evidence of record explaining the delay in his
undergoing surgery or cite any authority to support his contention that such delay
has no bearing on determining whether he was at MMI or entitled to TTD during
the contested period.
Moreover, his pointing to Dr. Nazar’s opinion that Badall was not at
MMI in 2018, prior to undergoing surgery in 2021, does not show that the Board
erred in affirming the ALJ’s finding to the contrary. Perhaps a different factfinder
might have found Dr. Nazar’s opinion that Badall was not at MMI more persuasive
than Dr. Loeb’s testimony (which the ALJ relied upon) that Badall was at MMI in
the summer of 2018. Nonetheless, when the medical evidence is conflicting, the
ALJ has the sole prerogative to determine which medical evidence to believe.
Greene v. Paschall Truck Lines, 239 S.W.3d 94, 109 (Ky. App. 2007). The Board
properly declined to second-guess the ALJ’s assessment of the weight and
credibility of the conflicting medical evidence. The Board also properly affirmed
the ALJ’s finding that Badall was at MMI during the period between his filing his
-25- motion to reopen in June 2018 and his undergoing surgery in August 2021 as
supported by substantial evidence including Dr. Loeb’s opinion testimony.
In sum, we discern no reversible error in the Board’s affirming the
ALJ’s denial of TTD benefits from June 4, 2018, until August 11, 2021.
Further arguments raised by the parties which are not discussed herein
have been determined to lack merit or relevancy to our resolving the parties’ cross-
petitions for review. For example, it is not necessary for us to address the
alternative arguments raised in Ford’s response to the cross-petition for affirming
the denial of TTD benefits for the contested period since the Board properly
affirmed the ALJ on the TTD issue based on the ALJ’s properly supported findings
about MMI.
CONCLUSION
For the foregoing reasons, we AFFIRM the Board.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS- APPELLEE: APPELLANT:
Brian W. Davidson Wayne C. Daub Joshua W. Davis Louisville, Kentucky Louisville, Kentucky
-26-