Neighborsv. River City Interiors

187 S.W.3d 319, 2006 Ky. LEXIS 67, 2006 WL 734355
CourtKentucky Supreme Court
DecidedMarch 23, 2006
DocketNo. 2005-SC-0681-WC
StatusPublished
Cited by1 cases

This text of 187 S.W.3d 319 (Neighborsv. River City Interiors) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neighborsv. River City Interiors, 187 S.W.3d 319, 2006 Ky. LEXIS 67, 2006 WL 734355 (Ky. 2006).

Opinion

OPINION OF THE COURT

KRS 342.710(5) requires a 50% loss of compensation for each week that a worker refuses to accept rehabilitation that an Administrative Law Judge (ALJ) has ordered. An ALJ overruled a motion to reduce the claimant’s income benefits, which alleged that he refused to follow through with the rehabilitation process as ordered in his award. Based on findings that his physical condition did not preclude retraining, that retraining was practical, and that it was likely to return him to gainful employment, the ALJ ordered him to be referred for the rehabilitation services that had been recommended. The Workers’ Compensation Board (Board) and the Court of Appeals affirmed, and we affirm.

The claimant was born in 1955 and worked as a drywall finisher. On January 8, 2001, a falling bucket of drywall mud hit him, resulting in work-related injuries to his head, neck, shoulder, and back. When the claim was heard, he was receiving Social Security Disability benefits. Based on his medical and vocational evidence, he argued that his physical restrictions and limited educational level rendered him totally disabled. The employer’s medical and vocational evidence indicated that the claimant could perform a range of sedentary activities and that suitable remedial and retraining programs were available.

On August 6, 2002, an ALJ determined that the claimant was totally disabled, relying specifically on Dr. Collis and on Dr. Guarnaschelli, the claimant’s treating physician. Dr. Guarnaschelli was of the opinion that the claimant would benefit from a comprehensive rehabilitation program. Although nothing in the benefits review conference memorandum or the claimant’s brief mentioned a request for rehabilitation benefits, the ALJ stated that he had requested vocational rehabilitation, that he had an eighth-grade education with no specialized or vocational training, and that his injury left him unable to perform work for which he had previous training or experience. The ALJ ordered him to be referred for a vocational rehabilitation evaluation, stating:

The vocational evaluation shall be at the expense of the Defendant-Employer and a determination as to the propriety of recommended retraining for the Plaintiff shall be in accordance with the provisions of KRS 342.710.

A copy of the claimant’s petition for reconsideration is not to be found in the record before us. The employer’s response, which is of record, complained that the claimant was attempting to avoid the order of rehabilitation. It also stated that rehabilitation was a crucial goal of the Workers’ Compensation Act regardless of whether the claimant requested it. On September 4, 2002, the ALJ overruled the petition adding, “even though the Plaintiff did not request it.”

By letter dated October 11, 2002, Jerome Mahin (a specialist at the Department of Workers’ Claims, now the Office of Workers’ Claims) informed the claimant when to report to Elizabethtown Technical College for an evaluation to measure his vocational interests and aptitudes and his academic abilities.1 A Client Assessment [321]*321Report from Elizabethtown Technical College, filed with the Department of Workers’ Claims on October 28, 2002, stated that the claimant was functioning at grade level 7.8 in reading and 5.4 in math. An interest inventory and interview indicated that he was interested in mechanics as well as in working in construction. The evaluator concluded, “Not considering his physical limitations, it would seem possible for [the claimant] to be retrained in one of the above areas .... He would need to improve his academic skills.”

A letter from Mr. Mahin to the claimant, also dated October 28, 2002, reviewed the test results. The letter noted that they were substantially below the claimant’s eighth-grade completion level and observed that he may not have been able to perform at his best on the day he was tested. It requested him to call Mr. Ma-hin within 15 days at the Department’s toll-free number to discuss the results of the assessment as well as resources for services such as adult education, job placement, and retraining benefits.

A December 2, 2002, letter from Mr. Mahin to the claimant stated that it included a copy of the prior letter to which he had failed to respond. It requested him to do so within 15 days. A December 6, 2002, letter from Mr. Mahin indicated that the claimant responded to the second request and that they discussed possible retraining benefits, but the claimant indicated that retraining was impossible due to continuing medical problems. The letter concluded:

[U]nless any party of record informs me otherwise within 30 days, I will assume there is mutual agreement to close your rehabilitation file subject to reopening if your medical condition improves.

A February 11, 2003, letter from Mr. Ma-hin to the employer indicated that the claimant’s file remained open per the employer’s December 13, 2002, request and reiterated the Department’s readiness to assist the claimant with vocational development and retraining.

On March 11, 2003, the employer filed a motion to reopen under KRS 342.125(l)(b) and KRS 342.710(5), requesting a 50% reduction in the claimant’s income benefits based on his failure to follow through with the vocational rehabilitation process. The claimant objected. He asserted that KRS 342.125 did not permit reopening under the circumstances and that because KRS 342.710 is silent regarding the mechanism to be used for considering a request to reduce an award, jurisdiction appeared to he in circuit court. He also asserted that he had complied with the order to undergo a rehabilitation evaluation but that an ALJ had not received the vocational report to which KRS 342.710(3) refers and had not ordered any recommended services or treatment. Furthermore, his present physical condition precluded any type of education or retraining program. Noting that the process anticipated by KRS 342.710(3) had not occurred, the Chief ALJ ordered the matter to be reopened and assigned to another ALJ for further proceedings.

The claimant testified subsequently that he did not think his medical condition had improved sufficiently to engage in retraining. He stated that he did not follow up on Mr. Mahin’s last letter because he thought retraining would be a waste of time given his condition. Furthermore, he submitted medical evidence indicating that he had been treated for a heart condition since his injury.

[322]*322Dr. Crystal re-tested and re-evaluated the claimant in August, 2003, for the employer. He reviewed the medical reports from the initial claim, and the claimant informed him of a heart attack that occurred in December, 2002. As in June, 2002, Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
187 S.W.3d 319, 2006 Ky. LEXIS 67, 2006 WL 734355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neighborsv-river-city-interiors-ky-2006.