             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
 BEFORE THE)COURT. OPINIONS CITED FOR CONSIDERATION
 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE
 ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
 DOCUMENT TO THE COURT AND ALL PARTIES TO THE
 ACTION.
                                           RENDERED: SEPTEMBER 24, 2015
                                                   NOT TO BE PUBLISHED

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                              2015-SC-000005-WC


CENTRAL BAPTIST HOSPITAL                                             APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-001228-WC
                  WORKERS' COMPENSATION NO. 12-73151



MARTY MAY;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                          APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Central Baptist Hospital, argues in this workers'

compensation appeal that the Administrative Law Judge ("ALJ") erred by not

enforcing a settlement agreement entered into between itself and Appellee,

Marty May, and that proof should have been reopened. For the below stated

reasons, we affirm.

      May suffered a work-related injury while employed by Central Baptist as

a registered nurse in the Neo-Intensive Care unit. She filed for workers'

compensation and a benefit review conference ("BRC") was scheduled. A week

before the BRC, May submitted the reports of two physicians. Central Baptist

was unable to depose those physicians before the final hearing was held.
However, after the BRC, the ALJ granted both parties thirty days to complete

additional proof. Neither party submitted additional proof during this period.

Central Baptist purportedly decided not to depose the physicians because it

entered into settlement negotiations with May.

      Central Baptist sent May's attorney, Don Todd, a Form 110. May

rejected, the initial settlement offer because she objected to certain language in

the Form 110 and wanted to be paid a longer period of temporary total

disability ("TTD") benefits. A revised Form 110 was sent to May in which

Central Baptist would pay all reasonable, necessary, and related medical

expenses and a longer period of TTD benefits. However, the revised Form 110

was sent to Todd's office while he was hospitalized.

      On September 11, 2013, the ALJ entered an opinion and order which

awarded May permanent partial disability ("PPD") benefits based upon an 8%

impairment rating. The ALJ enhanced May's award by applying the three

multiplier pursuant to KRS 342.730(1)(c)(1). TTD benefits were also awarded.

The ALJ's opinion and order provided May with a greater award than what was

proposed in the revised Form 110.

      One day after the ALJ entered the opinion and order, on September 12,

2013, May signed the revised Form 110, albeit in the wrong spot. The next

day, on September 13, 2013, May returned to Todd's office and re-signed the

revised Form 110 in the correct spot. May did not discuss the revised Form

110 with Todd before signing it due to his hospitalization. The ALJ approved

the settlement agreement on September 16, 2013. May did not know about the



                                         2
ALJ's opinion and order when she signed, and re-signed, the revised Form 110

because of Todd's hospitalization. She only learned of the ALJ's opinion and

order after Todd was released from the hospital. Upon hearing the details of

the ALJ's opinion and order, May determined that she wanted to "accept" it and

reject the settlement agreement.

         Central Baptist subsequently filed a motion and affidavit to set aside the

ALJ's opinion and order and to enforce the settlement agreement. Central

Baptist also filed a petition for reconsideration arguing that the ALJ did not

make sufficient findings of fact regarding the application of the three

multiplier' and that it should be granted additional proof time to depose the

two doctors May used to support her case.

         The ALJ held a hearing in which May and Todd testified. Todd testified

that the revised Form 110 contained all of the requested revisions, but also

stated that May was unaware the ALJ rendered an opinion and award before

signing the agreement. When asked why she signed the revised Form 110 if

she did not agree with its terms, May implied she wanted the matter finalized

and then stated, "I rejected the agreement because - how do I put this, because

I agreed with the Judge's award . . . which was more money."

         After the hearing, on January 30, 2014, the ALJ issued an opinion and

order finding that there was no meeting of the minds as to the terms of the

settlement agreement. The ALJ found:




1   This issue has not been appealed to this Court and is not before us.


                                             3
      Based upon the sworn testimony of Mr. Todd, [May's] attorney, and
      also the plaintiff Mrs. May at the special hearing on December 18,
      2013, I make the factual determination that it is uncontradicted
      that my Opinion and Order dated September 11, 2013 was
      rendered and served upon both attorneys before the plaintiff Mrs.
      May had the opportunity to discuss with her attorney, Mr. Todd,
      the revised Form 110 prepared by [Central Baptist's] attorney. The
      revised Form 110 was forwarded by [Central Baptist's] attorney to
      Mr. Todd's office during the time he was confined to the hospital
      for surgery. I make the factual determination that Mrs. May went
      to Mr. Todd's office on September 12, 2013 and signed the
      proposed settlement agreement on the wrong line. I make the
      factual determination that while Mr. Todd was confined to the
      hospital his office called Mrs. May to come back in and she
      returned to Mr. Todd's office on September 13, 2013 and signed
      the proposed agreement on the correct line, and I make the factual
      determination that when Mr. Todd was discharged from the
      hospital he contacted Mrs. May and she came back to his office on
      September 15, 2013, at which time they discussed the case in
      detail. Mrs. May told Mr. Todd that she did not accept the revised
      Form 110. Taking all of the evidence into consideration, I make
      the factual determination that there was no meeting of the minds
      as to the terms of the revised Form 110 and there was, therefore,
      no settlement agreement. In making the determination, I rely upon
      the above sworn testimony, the decision of Kentucky's highest
      court in Skaggs v. Wood Mosaic Corporation, 428 S.W.2d 617 (Ky.
      1968), the decision of the Kentucky Court of Appeals in
      Commercial Drywall v. Wells, 860 S.W.2d 299 (Ky. App. 1993) . . .

Accordingly, on January 30, 2014, the ALJ denied Central Baptist's motion to

set aside his original opinion and order of September 11, 2013 and denied the

petition for reconsideration. Central Baptist then filed a petition for

reconsideration of the January 30, 2014 opinion and order. This petition was

denied. Central Baptist appealed to the Board which affirmed. The Court of

Appeals also affirmed in a two-to-one opinion, with Judge Kramer dissenting

without opinion. This appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a


                                         4
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where 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." Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. For the below stated reasons, we

affirm the Court of Appeals.


    I. THE ALs.7 WAS WITHIN HIS DISCRETION TO NOT ENFORCE THE
                      SETTLEMENT AGREEMENT

      Central Baptist's first argument is that the ALJ erred by refusing to

enforce the settlement agreement signed by May. KRS 342.265 states in

pertinent part:

      (1) If the employee and employer and special fund or any of them
      reach an agreement conforming to the provisions of this chapter in
      regard to compensation, a memorandum of the agreement signed
      by the parties or their representatives shall be filed with the
      commissioner, and, if approved by an [ALJI, shall be enforceable
      pursuant to KRS 342.305.

This statute gives the ALJ an opportunity to review the terms of a settlement

agreement with the purpose of protecting the interests of the worker.   Skaggs,

428 S.W.2d at 619. Further, an ALJ "may look behind the settlement when an

agreement appears not to be in the best interest of the worker, provided there

is cause to do so." Commercial Drywall, 860 S.W.2d at 302. "To constitute




                                        5
such a contract there must, of course, be a mutual assent by the parties - a

meeting of the minds - and also an intentional manifestation of such assent."

Furtula v. University of Kentucky, 438 S.W.3d 303 (Ky. 2014) (citing Kellum v.

Browning's Adm'r, 231 Ky. 308, 21 S.W.2d 459, 463 (1929)).

      In this matter, the ALJ's determination that the settlement agreement

was not the product of a meeting of the minds is not unreasonable. May

signed the revised Form 110 without knowledge of the ALJ's opinion and order

and without the full counsel of Todd, who was hospitalized. After learning of

the ALJ's opinion and order, May changed her mind on acceptance of the

agreement. While under traditional contract law May is likely bound to her

decision, the goal of workers' compensation is to fully redress a worker's injury.

Additionally, as stated above, the ALJ may "look behind" a settlement if in the

best interest of the worker. Thus, the ALJ was not unreasonable in finding

that, based on May's lack of knowledge, there was not a full meeting of the

minds and that she should not be bound by the settlement agreement. The

ALJ's findings are not unsupported by the record and we decline to disturb his

conclusions. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).

The ALJ was within his discretion to exercise his authority under KRS 342.285.

Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).


II. CENTRAL BAPTIST WAS NOT ENTITLED TO ADDITIONAL PROOF TIME

      Central Baptist's other argument is that once the settlement agreement

was rejected by the ALJ, additional proof time should have been provided.

Central Baptist argues that it was prejudiced by not being able to take the

                                        6
depositions of May's evaluating physicians. Central Baptist says that the

award the ALJ rendered in this matter is unfair because it is based on the

physician's testimony without cross examination. The physicians' depositions

were cancelled once Central Baptist entered into settlement negotiations. We

disagree.

      The ALJ, as fact finder, has the authority to control the taking and

presentation of proof in a workers' compensation claim to ensure a speedy and

thorough resolution of the claim. Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d

283 (Ky. 2005). Here, the ALJ gave Central Baptist until July 25, 2013, to

complete its proof. Central Baptist instead chose to voluntarily cancel the

depositions with the physicians upon their belief that May would enter into a

settlement. Central Baptist was not compelled to cancel the depositions, and

the ALJ did not abuse his discretion in denying additional proof-taking.

      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. All concur.




COUNSEL FOR APPELLANT,
CENTRAL BAPTIST HOSPITAL:

Guillermo Alfredo Carlos
James Burke Cooper


COUNSEL FOR APPELLEE,
MARTY MAY:

Donald Richard Todd

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