         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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                                                   RENDERED: JUNE 16, 2016
                                                      NOT TO BE PUBLISHED

              $uprrmr Court of ITAtuTtalg
                                                       u Li L,
                              2015-SC-000476-WC


DANA CORPORATION                                                     APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-001902-WC
                  WORKERS' COMPENSATION NO. 03-95433



MARTIN ROBERTS;
HONORABLE J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                          APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Dana Corporation, appeals a Court of Appeals decision that

affirmed an award of permanent total disability ("PTD") benefits to Appellee,

Martin Roberts. Dana argues that this Court should reconsider the holding in

Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008), and find that

Roberts's motion to reopen was untimely filed. For the below stated reasons,

we affirm the Court of Appeals.

      Roberts suffered a work-related injury on September 24, 2001. The

occurrence of the injury was described as "lower back pain/climbing

on/ servicing equipment, lower back pain from servicing a machine." Roberts

and Dana entered into a settlement agreement based on a 23% impairment
rating which was approved by an Administrative Law Judge ("ALJ") on

February 5, 2004. The settlement did not waive his right to future medical

benefits.

      On February 11, 2011, Roberts filed a motion to reopen, KRS 342.125(3),

seeking temporary total disability ("TTD") benefits and payment for medical

treatment. The motion stated that on April 10, 2010, Roberts began to

experience intermittent back pain which subsequently increased. Because of

the symptoms, Dr. David Rouben performed an MRI on Roberts which

indicated a worsening of Roberts's condition. Dr. Rouben restricted Roberts

from walking and recommended surgery. Dana objected to the motion.

However, the Chief Administrative Law Judge ("CALJ") concluded that Roberts

set forth a prima facie case to reopen and sustained the case for another ALJ to

review.

      The motion to reopen was assigned to ALJ Lawrence Smith. After a

review of the evidence, AU Smith found that the procedure recommended by

Dr. Rouben was reasonable, necessary, and work-related. He issued an

opinion, order, and award on September 19, 2011, which found Dana

responsible to pay for the medical treatment. ALJ Smith also ordered Dana to

pay Roberts TTD from the date of surgery to the time he reached maximum

medical improvement ("MMI"). Roberts underwent the medical procedure in

November 2011.

      On April 10, 2013, Dana filed a motion and affidavit to terminate

Roberts's TTD benefits. Dana stated that Dr. Ellen Ballard conducted an



                                       2
independent medical examination ("IME") on Roberts and concluded he

reached MMI on November 2, 2012. Roberts filed a response to the motion

arguing that Dr. Rouben was still treating him. Dr. Rouben believed that

Roberts had not reached MMI.

      On May 23, 2013, Roberts filed a "Motion to Reopen for Increased

Impairment, Changed and Worsening of Condition, and Total Occupational

Disability." Roberts alleged that his condition obviously worsened because he

had to undergo the procedure from Dr. Rouben. Roberts noted in 2003, Dr.

Rouben assigned him a 23% impairment rating but now pursuant to the AMA

Guides he falls within DRE Category V, which requires a minimum 25% whole

person impairment. Roberts also contended he was unable to find any type of

work. Dana responded by filing a motion arguing that Roberts's motion to

reopen should be barred by the statute of limitations. KRS 342.125(3). The

matter was reassigned to ALJ Alison Jones.

      ALJ Jones entered an order sustaining Dana's motion to terminate TTD

benefits effective June 13, 2013. But, she also overruled Dana's motion to

dismiss based on Hall, 276 S.W.3d at 775. Hall stated that for the purposes of

KRS 342.125(3), any order which grants or denies benefits tolls the statute of

limitations. She found that ALJ Smith's order reopening the claim and

awarding TTD and medical benefits restarted the four year period in which one

may move to reopen the claim. Thus, since Roberts's motion to reopen was

filed May 23, 2013, and that was less than four years after ALJ Smith's motion
granting him TTD benefits, it was timely. A petition for reconsideration filed by

Dana was denied.

      The Board affirmed in a two to one opinion. Chairman Alvey dissented,

arguing that the dissent in Hall, which wrote that a reopening may only be filed

four years after the original opinion or award, was correct. He wrote that while

KRS 342.125(3) allows for reopening for additional TTD benefits, it does not

revive the four year statute of limitations every time an order granting or

denying benefits is entered. He noted that a prime objective of the General

Assembly in passing KRS 342.125(3) was to restrict and not expand the

granting of workers' compensation awards. The Court of Appeals affirmed, and

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

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. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.




                                         4
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). KRS

342.125(3) states:

      [e]xcept for reopening solely for determination of the
      compensability of medical expenses, fraud, or conforming the
      award as set forth in KRS 342.730(1)(c)2., or for reducing a
      permanent total disability award when an employee returns to
      work, or seeking temporary total disability benefits during the
      period of an award, no claim shall be reopened more than four (4)
      years following the date of the original award or order granting or
      denying benefits, and no party may file a motion to reopen within
      one (1) year of any previous motion to reopen by the same party.

      Dana requests that this Court overrule the decision in Hall, 276 S.W.3d

775, or in the alternative find that this matter is factually distinguishable.   Hall

held that "original award or order" as used in KRS 342.125(3) indicates the

statute of limitation runs from either the original award or any order thereafter

which grants benefits. Hall reasoned:

             That the reference to the 'original award or order granting or
      denying benefits' was intended to encompass orders granting
      benefits other than the 'original award,' is established by several
      additional uses in the same statute. For example, KRS 342.125(1)
      allows an ALJ to 'reopen and review any award or order' on stated
      grounds. (emphasis added). It is uncontestable that the reference
      to 'order' in KRS 342.125(1) encompasses an order different than
      the original award, otherwise there could be no reopening of
      awards changed subsequent to the original award, increasing or
      decreasing benefits, as all must concede is the practice. For
      example, KRS 342.125(1)(d) specifically allows a 'reopening and
      review' upon a Ic]hange of disability as shown by objective medical
      evidence of worsening or improvement of impairment due to a
      condition caused by the injury since the date of the award or
      order.' (emphasis added). If the word 'order' was interpreted to
      refer only to the original award, a 'review and reopening' of a
      subsequently increased or decreased award or order could simply
      not occur. And, KRS 342.125(4) acknowledges that the
      Irleopening shall not affect the previous order or award as to any
      sums already paid thereunder.' (emphasis added). Meaning
      simply, that the new award or order will operate prospective only
      for the remaining term of the award.

                                          5
                Given our further analysis, the conclusion that an 'order
         granting or denying benefits' was tended to encompass an order
         granting benefits different than an original award or settlement is
         compelling. Thus, the reference in KRS 342.125(3) to the original
         award or order granting or denying benefits,' must necessarily refer
         not only to the original award, but to any subsequent order
         granting or denying benefits.

Hall, 276 S.W.3d at 784-85.

         We decline to reverse Hall at this time. Addtionally, we do not find that

the facts in this matter prevent the application of Hall. Admittedly, the motion

in Hall, which tolled the statute of limitations, was filed closer to the original

order than the one in this matter. However, the fact remains that ALJ Smith's

order, entered on September 19, 2011, awarded Roberts TTD benefits and is an

order which restarted the four-year statute of limitations in KRS 342.125(3).

Thus, Roberts's motion to reopen filed on May 23, 2013, was timely filed and

shall not be dismissed.

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

Appeals.

         All sitting. Cunningham, Keller, Noble, Venters, and Wright, JJ., concur.

C.J. Minton, dissents as follows: I must respectfully dissent as I did in Hall v.

Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008), because I believe that

KRS 342.125(3) does not allow for the reopening of a claim filed more than four

years after the initial award or order granting or denying benefits. Hughes, J.,

joins.




                                          6
COUNSEL FOR APPELLANT,
DANA CORPORATION:

Guillermo Alfredo Carlos
James Burke Cooper


COUNSEL FOR APPELLEE,
MARTIN ROBERTS:

Stephanie Nicole Wolfinbarger
Jessica Jarboe Logsdon




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