l|V|PORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

THls 0PlNloN ls D`EslGNATED'”NoT To BE PuBLlsHED."
PuRsuANT To THE RuLEs oF clvlL PRocEDuRE _
PRolvluLGATED BY THE suPRElle couRT, cR 76.28(4)(c),
THls oPlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED 0R usED As BlNDlNG PREcEDENT lN ANY oTHER
cAsE IN ANY‘couRT oF THls sTATE; HoWEvER, 1
uNPuBLlsHED KENTucKY APPELLATE DEclsloNs,

` RENnERED AFTER JANuA_RY 1, 2003, MAY BE clTED FoR
coNleERATloN BY THE couRT lF THERE ls No PuBLlsHED
0PlNloN THAT WouLD ADEQuATELY AoDREss THE lssuE
BEFoRE THE couRT. oP`lNloNs clTED FoR coNleERATloN
BY THE couRT sHALL BE sET ouT As AN uNPuBLlsHEo
DEclsloN lN THE FILED Doculvl,ENT AND A coPY oF THE
ENTlRE DEclsloN sHALL BE TENDERED ALoNG WlTH THE

.DoculleNT ToA THE couRT AND ALL PARTlEs To THE
AchoN. ' -

:s'u0111p110:) _

' pue 3111.191 £0>1 Su1mo1101 9111 ‘1.Ied 11101111.10d 111 ‘p0u1e1110:) 111:911.10'.:»18131911\]J
"901p11_fa.1d 1111AA 1111121:) 0111 10 pass11us1p 19101 12 sel'p91:)1`e 111911109.139
1110111911199 31111 'sesuadxa 19011)0111 10 laA_reM 2 pue ‘uadoa.¢ 01 1146_11 9111
_,l`o Jaa_mm 12 ‘1{1111q‘es1p 1911.12d 11101112111.19d ‘A1111c112s1p 13101 1u9ueu1,19d _‘A1111qes1p
13101 &Ie.rodul;n ‘u011121111q12110-,1 101101112:)011 ‘3091 s 1{;)1110119 ‘1s9.191111 papn[ou1
11=3111 1u911199.132 11-ms dum[ 000 ‘017$ 2 01 pQQJS€ A[[eN pure s1111/\1 ‘3111.19911 ’
' 9111 1V 1001 11131,1 3111 pue ‘Sa[ 11131.1 S111‘>1:)Bq 3111 paln_[u1 QABq 01 paul1e[o 3111]/\1'
'11191111{01€11119 s111 10 as.moo 9111 3111.1111:) pa.m_fu1 slam 911 1191111¢\ (£1191\1) 11011111191-1

pue A[[éN 1s11_reSe 1111121:> u011esuad1uoo ‘SJQ>110AA 9 p911_1 s1111/\1 Apue'[

°CINIIOZID}IQVH_"IVZIH(IHSOH¢I GHV 'IVII\LOV¢I °I

BNIIAIHI.'I.'IV
\LZIIIOO HH.L JO HOINI¢IO IAII'IC[NVHOIAIHIAI
GHVOE[ NOILVSNHdI/\IOD S¢EICH}IHOM GNV CE[{)CIH[` MV"I

- HAILVHLSINIWGV ‘NCH'I'IV AHO{)EIHD `I" CH’IE[VHONOH
SCE_[CH"[”ICE{<:IcIV "SEISIEICIHH\LNH NO.L"III/\IVI-I C[NV A”I'IVN

9910010[¥\'91 `ON GHVOH NOI.LVSNCE[cII/\IOO ¢SH(H}IHOM - 1
OAA'SQ'[ l OO'VC)‘ST OZ 'ON EISVD 'A
S'IV_C'IcIdV dO le]OI) I/\IOH¢I "IVCE{cIcIV NO

J.NVTIHJCIV - ' ` _ , S'I'IIIN_ AGNV'I

OM LZ€OOO OS QIOZ

?111m1`na§ 1111 11an amman
`GHHSI'IAQCI 321 01 1011 _
1105 ‘Sz 1101le =GHHACINAH

In consideration of the lump sum payment set forth above, the
Plaintif`f and the Defendant hereby agree that the Plaintiff
completely releases and forever discharges the Defendant from any
and all liability for further reopening for 1ncome 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 lhas, 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 Plaintiff’s claim for
benefits shall be dismissed with prejudice. Plai-ntiff 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 t_he waiver of the right
to reopen. $8, 000. 00 of the lump sum constitutes consideration
for the waiver of all past, present, and future medical expenses. No
past or future medical bills will be paid by the Defendant-
Employer._$SOO_.OO 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 1ncome
benefits including temporary total disability; permanent partial
disability; permanent total disability; interest and attorney fees.

The agreement also recognized that Mills was apprised to they terms and
conditions and fully understood he was dismissing future benefitswith
_prejudice.v l 4 ‘
The Chief Administrative Law Judge (CALJ) approved the settlement
agreement o'n.August 27, 2013. In the time leading up to approving the
agreement.,1 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
CALJ approved the settlement Accordingly, on September 6, 2Q13, Mills filed a
“Motion to Set Aside Proposed Settlement,” asserting his need for surgery as

4 the basis for setting aside the agreement Nally objected to both Mills’s n

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

the motion was, by its terms, a motion to reopen the case, that the express
terms of the agreement prevented Mills from pursuing.

The CALJ granted Mills’s motion. But on appeal, the Board dismissed the
appeal after determining that the CALJ treated the motion to set aside the
settlement as a motion to reopen Mills’s claim. Under Kentu'cky 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 y
the rights of then parties, anddivests the ALJ of his or her authority. The Board
then reasoned that becausethe CALJ’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 v
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 ALJ.

The ALJ then ordered that the settlement agreement was valid and
enforceable under KRS 342.265 and that Mills’s motion to set aside the v
agreement did not comport with Kentucky administrative regulations Under
KRS 325.265, a reopening may b_e justified through evidence the agreement
was procured by fraud, mistake, or newly-discovered evidence that could not
l have been discovered by due diligence. Mills’s referral to Dr. Bean occurred
before the agreement, so the ALJ 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 ALJ concluded f -

lthat the plain language waived Mills’s ability to reopen the claim. -

Mills then filed a motion for reconsideration with the ALJ. Specifically,
Mills asserted that he had not filed a motion to reopen under the terms of KRS.
§25.265 and insisted his motion was in fact a motion to set aside the
agreement, The ALJ denied the petition for reconsideration. In his order, the
ALJ 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 provision/s of KRS 325.265. Mills appealed to the Board again.

The Board affirmed the ALJ. 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 lan ALJ is for a party to move to reopen under KRS 342.125. And
.this process involves two steps: (l) 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 ALJ to set additional proof time to_ fully adjudicate the merits
of reopening. The Board held that the CALJ’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, the'panel concluded the CALJ’s

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

1 evidence, with Mills acknowledging that he entered into the agreement
knowingly and received monetary consideration in exchange for waiving his '
right ton reopen. Because Mills failed to provethe existence of fraud, mistake, or

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

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

11. ANALYsIs. ` 1
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 Wes_terh 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).

context, the CALJ to set aside the agreement. -S'o according to Mills, the ALJ
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 a judge.3 Additionally, N ally 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.g Nally contends that once 'the settlement was
approved, Mill’s only avenue for relief wasa` motion to re-open the claim under
the strictures of KRS 342.125. We agree.

KRS 342.265(4) provides that _“lf 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

v agreement was approved by an ALJ, 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)). ' t

4 See Richey v. Per`ry Arnold, Inc., 391 S.W.3d 705, 710 (Ky. 2012).
` 5 See Beale v.~Faultless Hardware, 837 S.W.2d 893 (Ky. 91992).

this statute, Mills’s only Way to alter the approved agreement is to invoke the v
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 lWhittaker 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.€`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.

F or 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.s.d 466 (Ky. 200<_)).

