       IMPORTANT NOTICE
      NOT TO BE PUBLISHEDOPINION




THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCEDURE PROHUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL Ar4 TBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STA TE.
                                                              RENDERE D: May 18, 2006
                                                                NOT TO BE PUBLISHED


                Aularmle
                  r"Wir  OLITUrf of ~R

                                   2005-SC-0829-WC



STEVE HEIL


                       APPEAL FROM COURT OF APPEALS
V                             2004-CA-1817-W C
                     WORKERS' COMPENSATION NO . 94-07756


WINN-DIXIE ; HON . DONALD SMITH,
ADMINISTRATIVE LAW JUDGE; HON.
MARCEL SMITH, ADMINISTRATIVE
LAW JUDGE ; AND WORKERS'
COMPENSATION FUNDS, SUCCESSOR
TO SPECIAL FUND; AND WORKERS'
COMPENSATION BOARD                                                           APPELLEES


                      MEMORANDUM OPINION OF THE COURT

                                      AFFIRMING

       In a reopening of the claimant's partial disability award, an Administrative Law

Judge (ALJ) granted him a period of temporary total disability (TTD) benefits . His

subsequent petition for reconsideration, motion to reconsider the order denying

reconsideration, and a second motion to reopen were denied . The Workers'

Compensation Board (Board) and the Court of Appeals affirmed, rejecting arguments

that the ALJ erred in the first reopening by failing to designate the TTD award as being

interlocutory and also erred by failing to grant the second motion to reopen . We affirm.

      The claimant was born in 1958 and had a history of employment as a mechanic,

truck driver, railroad and warehouse worker, grocery store checker, and construction
worker. On February 11, 1994, he sustained back and groin injuries while working for

the defendant-employer as a truck driver. He underwent surgery at L4-5 and L5-S1 .

An AU awarded TTD benefits through June 20, 1995, followed by benefits for a 75%

permanent partial disability for 425 weeks from June 21, 1995.

       The claimant recovered from his injury and returned to work for several different

employers, primarily as a truck driver. He began to experience symptoms in mid-2002

and was diagnosed with a ruptured disc. Although a laminectomy and two-level fusion

were recommended, he did not wish to undergo either. He testified that he could not

continue working after October 22, 2002 . On March 17, 2003, he moved to reopen,

alleging that he was more disabled than at the time of the award and that there was a

medical fee dispute. He testified that he continued to receive medical treatment and

could not return to his past work due to low back pain that radiated into the left groin

and leg and also to numbness and weakness in the leg. He requested an award of

interlocutory TTD and medical benefits and the reservation of all other issues until after

he reached maximum medical improvement (MMI).                                         .

       The claimant's medical evidence consisted of reports and off-work slips . Dr.

Majid examined the claimant on April 22, 2003. He recommended conservative

treatment as well as activity modification but indicated that surgery might be necessary

if the pain worsened .

       Dr. Petruska noted that further surgery might leave the claimant with more

debilitating back pain and fail to relieve the radicular complaints. He recommended

epidural blocks as well as weight loss and referred the claimant to a specialist in

rehabilitation medicine, all with the goal of avoiding surgery.   He kept the claimant off

work until May 14, 2003.
       Dr. Williams began treating the claimant on May 14, 2003, initially restricting him

from work until August 11 ; 2003 . On that date, Dr. Williams amended the restriction to

reflect a return to work date of December 1, 2003.

       Dr. Goldman performed an IME on July 15, 2003, and concluded that the

claimant had no more restrictions or limitations than he had in 1995 or 1996 . In his

opinion, the claimant could drive for two to two and one-half hours at a time with

adequate rest or an ability to change positions . Moreover, it would not affect his

symptoms any more than sitting at home . Dr. Goldman recommended weight

reduction, exercises to strengthen the back and abdominal muscles, and the use of

non-steroidal anti-inflammatory medication .

       In a decision rendered on November 10, 2003, an ALJ determined that although

KRS 342 .125(8)'s four-year period of limitations barred reopening for additional

permanent income benefits, KRS 342.125(3) permitted post-award TTD and medical

benefits to be considered for the duration of the award . Based on the claimant's

evidence, the ALJ awarded TTD benefits from October 22, 2002 through December 1,

2003, noting that this intervening period of TTD extended the duration of the claimant's

partial disability award.' The ALJ also awarded medical benefits, specifically to include

the recommended epidural blocks and possibly surgery.

       On November 14, 2003, the claimant filed a petition for reconsideration. He

asserted that he had not been found to be at MMI and that the duration of TTD might

extend beyond December 1, 2003. On that basis, he requested that the award be

amended to indicate that TTD was interlocutory, i .e., open-ended or for an indefinite


1 The claimant's partial disability award extended for 425 weeks from June 21, 1995.
Therefore, it would have expired in August, 2003, absent an intervening period of TTD .
rather than a designated period .

       The ALJ denied the petition on December 2, 2003, noting that KRS 342.125(3)

permits a reopening for the payment of TTD during the period of an award . The order

explained that although Drs. Petruska and Williams took the claimant off work until

December 1, 2003, the record contained no evidence of TTD beyond that date .

Therefore, there was no open-ended award of TTD in the form of interlocutory relief as

the claimant suggested .

       On December 16, 2003, the claimant filed a pleading styled as a "PETITION

FOR RECONSIDERATION OF ORDER OF DECEMBER 2, 2003," again requesting

that his TTD award be designated as interlocutory. Attached to the document was an

off-work slip, dated November 24, 2003, which indicated that the claimant was

restricted from working until February 23, 2004. The employer objected to the

submission of evidence not of record . On December 29, 2003, the claimant filed a

notice of appeal. The AU denied the pleading on December 31, 2003.

       On December 24, 2003, the claimant filed a second motion to reopen, asserting

that his condition had gradually worsened since the initial award and that he had

greater temporary or permanent disability. He also asserted that he continued to be

temporarily totally disabled, that his continuous change of condition warranted

reopening, and that the employer refused to authorize or pay for additional medical

treatment . He supported the motion with affidavits from himself and his attorney ;   a
copy of the aforementioned off-work slip ; copies of a co-pay receipt and off-work slip

from Dr. Rouben for an indefinite period from December 10, 2003, until "pending

surgery;" and a copy of a card noting an appointment with Dr. Rouben for February 12,

2004. An AU considered the motion, found no indication that the claimant's condition
had changed since the matter was last litigated, and denied it; whereupon, the claimant

appealed . The Board consolidated the appeal with the appeal regarding the previous

reopening . It later affirmed in both instances as did the Court of Appeals.

         The claimant argues that the initial reopening was decided before he was found

to be at MMI and that, after the award was rendered, Dr. Williams took him off work

again from November 24, 2003, until February 24, 2004 . Moreover, the period of TTD

would be even longer if surgery were performed. The claimant asserts that he was

entitled to either: 1 .) an open-ended TTD award in the initial reopening (i .e ., the AU

erred in terminating TTD on December 1, 2003); or 2 .) a new TTD award in the second

reopening because the finding of TTD until December 1, 2003, was final under the

doctrine of res ludicata .

       In the initial reopening, it was the claimant's burden to prove that he was entitled

to interlocutory TTD benefits . The AU determined that the evidence supported no

more than an award that ended on December 1, 2003 . Therefore, the claimant's

burden on appeal is to show that the favorable evidence was so overwhelming that it

compelled an open-ended award as a matter of law. Special Fund v. Francis , 708

S .W .2d 641, 643 (Ky. 1986) .

       KRS 342.125(8)'s four-year period of limitations expired long before the claimant

filed his initial motion to reopen . Although he could no longer receive additional

benefits for a permanent change of condition, KRS 342:125(3) permitted him to reopen

for TTD and medical benefits, which he did . Although it was the claimant's burden to

prove the duration of TTD, he submitted only the off-work slips from Drs. Petruska and

Williams, which indicated that he could not work through December 1, 2003. Only the

last off-work slip even implied that he would become less than totally disabled at some
future date, i .e., that his total disability was only temporary. Therfore, the evidence

supported the award but did not compel an award beyond December 1, 2003.

       The claimant's burden in the second reopening was to show 1 .) that his condition

worsened between the decision rendered on November 10, 2003, and the date he filed

his second motion to reopen, which was December 24, 2003; and 2.) that he was

temporarily totally disabled . Having failed to convince the ALJ that he demonstrated a

change in condition, his burden on appeal is to show that the favorable evidence was

overwhelming and compelled a favorable finding. Special Fund v. Francis , supra .

       In the initial reopening, the ALJ stated clearly that the evidence the claimant

submitted did not support TTD after December 1, 2003 . The ALJ did not determine that

the claimant's disability would be less than total as of December 2, 2003, and did not

enter an interlocutory award . In fact, when denying his petition for reconsideration, the

ALJ refused to enter an open-ended award . In the second reopening, the claimant

submitted an off-work slip from Dr. Williams for the period from November 24, 2003, to

February 23, 2004 . Another off-work slip from Dr. Rouben covered an indefinite period

that began on December 10, 2003. Considered together with the off-work slips

submitted in the initial reopening, they indicated that the claimant was totally disabled

continuously from the date of the initial motion to reopen and would continue to be

totally disabled for the indefinite future. Under the circumstances, the evidence did not

compel the ALJ to conclude that the claimant suffered a change of condition after

December 1, 2003, or that his present disability was only temporary.

       The decision of the Court of Appeals is affirmed .

      All concur.
COUNSEL FOR APPELLANT :

Wayne C. Daub
730 West Main Street, Suite 200
Louisville, Kentucky 40202

COUNSEL FOR APPELLEE,
WINN-DIXIE:

Allan Weiss
Ferreri & Fogle
333 Guthrie Green, Suite 203
Louisville, Kentucky 40202

COUNSEL FOR APPELLEE,
WORKERS' COMPENSATION FUND:

Robert L . Whittaker
Attorney for Workers'
Compensation Funds
1047 US Hwy. 127 S Suite 4
Frankfort, Kentucky 40601
