               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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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ACTION.
                                                  RENDERED: MARCH 23, 2017
                                                       NOT TO BE PUBLISHED


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LANDY MILLS                                                            APPELLANT


                   ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2015-CA-001168-WC
              WORKERS' COMPENSATION BOARD NO. 13-WC-00153


NALLY AND HAMILTON ENTERPRISES,                                        APPELLEES
HONORABLE J. GREGORY ALLEN, ADMINISTRATIVE
LAW JUDGE AND WORKER'S COMPENSATION BOARD


                     MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


                I.    FACTUAL AND PROCEDURAL BACKGROUND.

      Landy Mills filed a workers' compensation claim against Nally and

Hamilton (Nally) when he was injured during the course of his employment.

Mills claimed to have injured his back, his right leg, and his right foot. At the

hearing, Mills and Nally agreed to a $40,000 lump-sum agreement that

included interest, attorney's fees, vocational rehabilitation, temporary total

disability, permanent total disability, permanent partial disability, a waiver of

the right to reopen, and a waiver of medical expenses. This settlement

agreement acted as a total dismissal of the claim with prejudice.

      The agreement contained, in pertinent part, the following key terms and

conditions:
      In consideration of the lump sum payment set forth above, the
      Plaintiff and the Defendant hereby agree that the Plaintiff.
      completely releases and forever discharges the Defendant from any
      and all liability for further reopening for income benefits pursuant
      to KRS 342.125 based on an increase in occupational disability,
      statutory disability, or any other theory of recovery which the
      Plaintiff now has, or which may hereafter accrue or otherwise be
      acquired, on account of, or which may in any way grow out of the
      alleged work-related injury and that the Plaintiffs claim for
      benefits shall be dismissed with prejudice. Plaintiff shall have no
      right to reopen for increased occupational disability benefits
      in consideration of the amounts paid pursuant to this
      agreement. $8,000.00 of the lump sum settlement to the
      Plaintiff constitutes consideration for the waiver of the right
      to reopen. $8,000.00 of the lump sum constitutes consideration
      for the waiver of all past, present, and future medical expenses. No
      past or future medical bills will be paid by the Defendant-
      Employer. $500.00 of the lump sum is specifically paid as
      consideration for the waiver of all claims for vocational
      rehabilitation. The remainder of the settlement proceeds
      constitutes consideration for the waiver of all claims for income
      benefits including temporary total disability; permanent partial
      disability; permanent total disability; interest and attorney fees.

The agreement also recognized that Mills was apprised to the terms and

conditions and fully understood he was dismissing future benefits with

prejudice.

      The Chief Administrative Law Judge (CAW) approved the settlement

agreement on.August 27, 2013. In the time leading up to approving the

agreement, Mills had received an MRI of his lumbar spine and was referred to

Dr. Bean for surgical intervention on August 26, 2013-the day before the

CAW approved the settlement. Accordingly, on September 6, 2013, Mills filed a

"Motion to Set Aside Proposed Settlement," asserting his need for surgery as

the basis for setting aside the agreement. Nally objected to both Mills's

characterization of the motion and the merits of his petition. In Nally's view,



                                        2
the motion was, by its terms, a motion to reopen the case, that the express

terms of the agreement prevented Mills from pursuing.

      The CAW granted Mills's motion. But on appeal, the Board dismissed the

appeal after determining that the CAW treated the motion to set aside the

settlement as a motion to reopen Mills's claim. Under Kentucky Rules of Civil

Procedure (CR) 54.02(1) and (2), an order is only appealable if it terminates the

action itself, acts to decide all matters litigated by the parties, determines all

the rights of the parties, and divests the AW of his or her authority. The Board

then reasoned that because the CAW's order only determined that Mills made

a prima facie showing that he may prevail under evidence proffered in favor of

reopening, the order was not final and appealable. The order failed to show a

change in disability caused by the injury and there was no final award. So the

Board dismissed and the case was then reassigned to an AW.

      The AW then ordered that the settlement agreement was valid and

enforceable under KRS 342.265 and that Mills's motion to set aside the

agreement did not comport with Kentucky administrative regulations. Under

KRS 325.265, a reopening may be justified through evidence the agreement

was procured by fraud, mistake, or newly-discovered evidence that could not

have been discovered by due diligence. Mills's referral to Dr. Bean occurred

before the agreement, so the AW concluded his new need for surgery did not

amount to newly-discovered evidence. Mills acknowledged that he fully

understood and consented to the terms of the agreement, so the AW concluded

that the plain language waived Mills's ability to reopen the claim.



                                         3
      Mills then filed a motion for reconsideration with the AW. Specifically,

Mills asserted that he had not filed a motion to reopen under the terms of KRS

325 .265 and insisted his motion was in fact a motion to set aside the

agreement. The AW denied the petition for reconsideration. In his order, the

AW reiterated that the Board determined that though Mills did not label his

original motion as such, it was in fact a motion to reopen to be considered

under the provisions of KRS 325.265. Mills appealed to the Board again.

     The Board affirmed the AW. In reaching its decision, the Board again

found there was no basis for setting aside the previously approved settlement.

KRS 325.265(4) provides that the only remedy once an agreement has been

approved by an AW is for a party to move to reopen under KRS 342.125. And

this process involves two steps: (1) a claimant files a prima facie motion

providing sufficient information to demonstrate a substantial possibility of

success; and (2) if he succeeds in demonstrating a prima facie case, the matter

is assigned to an AW to set additional proof time to fully adjudicate the merits

of reopening. The Board held that the CAW's original order setting aside the

agreement was not controlling because it amounted to making a ruling prior to

taking proof on the questions of fraud, mistake, or newly discovered evidence.

Mills then appealed to the Kentucky Court of Appeals.

       The Court of Appeals affirmed the Board. The appellate court held that

filing a motion to reopen under KRS 342.125 was his exclusive remedy from

the approved settlement agreement, despite his efforts to style his motion as

one to set aside the settlement. And as such, thepanel concluded the CAW's



                                        4
order setting aside the agreement should have stated it was reopening the

claim-in essence, determining that Mills established a prima facie case. The

court then ruled that the agreement was valid and supported by substantial

evidence, with Mills acknowledging that he entered into the agreement

knowingly and received monetary consideration in exchange for waiving his

right to reopen. Because Mills failed to prove the existence of fraud, mistake, or

newly discovered evidence, the Court of Appeals ruled that the AW had no

basis for reopening the claim. Mills appealed to this Court.


                                        II. ANALYSIS.

     Standard of Review.
         On appellate review of the Board's decision in a workers' compensation

appeal, our role "is to correct the Board only where the ... Court believes 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."1 This is a highly deferential standard and we will only displace the

Board's judgment with our own upon a finding of grave error. As such, Mills

faces an uphill battle to succeeding on appeal.

     The Board's Opinion was Supported by Substantial Evidence.
         Mills's essential argument on appeal is that the Board failed to apply the

doctrine of res judicata in rendering its decision. He correctly highlights that

the doctrine indeed does apply to workers' compensation claims. 2 In this



1   Weste~ Baptist Hosp. v. Kelly, 827 S.W.2d 685,687 (Ky. 1992).
2   See Whittaker v. Cecil, 69 S.W.3d 69, 72 (Ky. 2002).


                                             5
context, the CAW to set aside the agreement. So according to Mills, the AW

ignored res judicata when he ruled that the settlement agreement is

enforceable.

         Nally alternatively argues, as both the Board and the Court of Appeals

agreed, that an approved settlement agreement carries the same full force and

effect as an award from ajudge. 3 Additionally, Nally reminds us that a claimant

may waive his right to reopen his claim as part of a settlement agreement.4 And

indeed, we have recognized that settlement agreements are favored and should

be enforced whenever possible.s Nally contends that once the settlement was

approved, Mill's only avenue for relief was a motion to re-open the claim under

the strictures of KRS 342.125. We agree.

         KRS 342.265(4) provides .that "If the parties have previously filed an

agreement which has been approved by the administrative law judge, and

compensation has been paid or is due in accordance therewith and the parties

thereafter disagree, either party may invoke the provisions of KRS 342.125,

which remedy shall be exclusive." This would appear to contemplate today's

case perfectly. Here both parties entered into a settlement agreement, the

agreement was approved by an AW, and Mills received valued consideration in

the form of $8,000 in exchange for his right to re-open. By the express terms of




3   See Bell v. Consol of Kentucky, Inc., 294 S.W.3d 459,462 (Ky. App. 2009) (citing Jude
     v. Cubbage, 251 S.W.2d 584, 586 (Ky. 1952)).
4   See Richey v. Perry Arnold, Inc., 391 S.W.3d 705, 710 (Ky. 2012).
s See Beale v. Faultless Hardware, 837 S.W.2d 893 (Ky. 1992).


                                             6
this statute, Mills's only way to alter the approved agreement is to invoke the

terms of KRS 342.125. And he did not move the Board on those grounds.

         But moreover, Mills's settlement agreement expressly contracted away

his right to reopen this claim. In Whittaker v. Pollard, we held that though a

settlement award may be reopened under KRS 342.125, a reopening may

nonetheless still be precluded by the terms of the underlying agreement.6 Here,

there are no allegations of fraud or bad faith in entering the settlement

agreement. Mills received a lump sum of $8,000 in exchange for vacating his

statutory right to reopen his claim. To us, it seems clear that the Board was

correct in rejecting his attempts to continue this workers' compensation claim

once the agreement had been approved.

                                III.     CONCLUSION.
         For the reasons stated above, we affirm the Board's ruling that Mills may

not reopen his claim.

     All sitting. All concur.




6   25 S.W.3d 466 (Ky. 2000).


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