IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 18, 2014 NOT TO BE PUBLISHED

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IDATE1-11.-% KUHLMAN ELECTRIC CORP. APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2013-CA-001424-WC WORKERS' COMPENSATION NO. 08-79685

REX CUNIGAN; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; JOSEPH W. JUSTICE; AND WORKERS' COMPENSATION BOARD APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant, Kuhlman Electric Corp., appeals the reopening of Rex

Cunigan's workers' compensation award. Kuhlman argues that the Court of

Appeals and Workers' Compensation Board erred by reversing the

Administrative Law Judge's ("ALP) opinion and order which dismissed the

motion to reopen because: 1) the alleged lumbar disc herniation claim is

procedurally barred by res judicata; and 2) there were not adequate grounds

presented by Cunigan to reopen the claim. For the below stated reasons we

affirm the Court of Appeals, albeit on slightly different grounds. Cunigan worked for Kuhlman as a janitor who performed preventive

maintenance. On April 24, 2008, he fell and suffered a work-related injury. He

reported the injury to his supervisor but did not seek medical treatment at that

time. However, Cunigan later began to suffer from pain in his buttocks and left

leg.

On April 22, 2009, Cunigan filed a Form 101 as a pro se claimant

seeking benefits for an alleged left leg injury. Cunigan attached to the Form

101 a statement indicating that his treating physician, Dr. J. Rick Lyon,

wanted him to undergo an MRI to determine the cause of his pain. However,

Kuhlman filed a Form 112 medical fee dispute arguing that the MRI was

unnecessary based on the opinion of Dr. Michael Best who did not find' any

evidence of radiculopathy or myelopathy in his examination of Cunigan. Prior

to the final hearing, Cunigan did not undergo an MRI. The majority of the

medical evidence introduced before the final hearing indicated that Cunigan

suffered from a hamstring tear.

ALJ Joseph W. Justice was assigned to the matter. He ordered a

university evaluation to be performed to determine the cause of Cunigan's pain,

but this was set aside on Kuhlman's petition for reconsideration. At the final

hearing, held on May 21, 2010, Cunigan, still representing himself pro se,

testified that, "All I want is to get the MRI, find out why a little old hamstring

tear, I'm still hurting in the center, not in my, right below my belt, my butt, my

leg swells. I stay up on it all day long. All I want is the MRI."

work-related injury to his hamstring but that it healed and caused no

permanent impairment. In regards to the requested MRI, ALJ Justice stated:

[Kuhlman] filed a medical fee dispute contesting a proposed MRI by Dr. Lyon. The ALJ has already discussed the matter herein. Under the medical evidence filed herein, with [Cunigan] having no objective medical evidence of radiculopathy, and the EMG being negative for disc injury, and with the hamstring diagnosis, the ALJ was persuaded by Drs. Best and Goldman that an MRI was not reasonable or necessary.

ALJ Justice awarded Cunigan temporary total disability benefits from April 25,

2008, through October 1, 2008, and dismissed his claim for permanent partial

disability benefits. ALJ Justice also found that Cunigan was not entitled to

any future medical treatments.

On October 28, 2010, Cunigan, now through counsel, filed a motion to

reopen pursuant to KRS 342.125. The motion to reopen was based upon an

MRI performed by Dr. Richard Lingreen on August 23, 2010, which indicated

that Cunigan had a large central disc herniation at L5-S 1. Cunigan also filed a

report by Dr. Gregory Wheeler, who connected the disc herniation to his work-

related fall. Kuhlman objected, arguing that the ALJ's findings regarding any

lumbar injury was the law of the case per res judicata and that Cunigan failed

to preserve the issue. Kuhlman also filed a new report from Dr. Best in which

he opined that any disc herniation was unrelated to Cunigan's work-related

fall.

order dismissing the motion to reopen. ALJ Davis stated:

I have, I hope, given the potential gravity of [Cungan's] low back injury, carefully weighted the equities, facts and law herein. I agree entirely with [Cunigan] that a condition that is originally found to be a temporary condition can be re-opened to show a worsening of condition into a permanent condition. I have also considered that at the time of the original litigation [Cunigan] was acting pro se, with all of its difficulties and disabilities. I have further [] taken into account the fact that [Cunigan] may have a serious low back injury. Nonetheless, it is clear to me that when Justice Palmore, Messer [v.] Dress, 382 S.W.2d 209 (Ky. 1964) spoke of 'mistake' and 'change of condition' he was not speaking of a Plaintiff, on re- opening, alleging an entirely new injury and body part. Furthermore, while [Cunigan] correctly argues that no physician, at the time of Judge Justice's original opinion, affirmatively stated [he] had a herniated disk it was clear that Dr. Lyons had requested lumbosacral MRI. That MRI was denied and the issue of it was before Judge Justice. Therefore, the issue of whether or not [Cunigan] might have a work-related low back injury was before Judge Justice but he concluded that [Cunigan] only had a temporary hamstring injury. Finally, on this issue, it is clear that [Cunigan] is not arguing that the herniated disk arose subsequent to the Opinion by Judge Justice, as a result of wear and tear or some other possible theory, but was present and work-related prior to the Opinion by Judge Justice. And, as discussed, Judge Justice was not persuaded. Therefore, based on the following, including but not limited to the fact that the herniated disk was in existence at the time Judge Justice wrote his opinion, the issue of further lumbosacral treatment was before him and denied, and the only work-related finding was of a temporary hamstring injury[, Cunigan], as a matter of law, is precluded, based on the doctrine of res judicata, from now arguing that he has a work-related low back injury. Accordingly, all of his claims in this matter, at this time, are dismissed because, as a matter of law and procedure, he does not have a work-related low back injury. .

Cunigan filed a petition, and an amended petition, for reconsideration. These

were denied.

Cunigan then appealed to the Board which reversed and remanded the

ALJ's decision. The Board held that Cunigan established the requisite showing

to reopen on two of the grounds provided in KRS 342.125: newly discovered

evidence and mistake. The Court of Appeals affirmed the Board. Kuhlman

now files this appeal.

In reviewing Kuhlman's argument we note that the Court of Appeals only

needed to correct the Board "if it overlooked or misconstrued controlling

statutes or precedent, or committed an error in assessing the evidence so

flagrant as to cause gross injustice. The function of further review in our 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." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992). Keeping these standards in mind, we affirm the Court of

Appeals. I. CUNIGAN'S MOTION TO REOPEN WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA

Kuhlman's first argument is that Cunigan's motion to reopen his claim,

based on a lumbar disc herniation, is barred by res judicata. It contends that

the doctrine of res judicata applies because Cunigan was required to include all

of his alleged injuries, including his newly alleged lumbar disc herniation, in

his original claim. Additionally, Kuhlman believes since the AU found there

was no evidence to support ordering an MRI to be performed, it was

conclusively decided that any lower back injury was not work-related.

"The doctrine of res judicata (also known as the doctrine of the finality of

judgments) is basic to our legal system and stands for the principle that once

the rights of the parties have been finally determined, litigation should end.

Thus, where there is an identity of parties and an identity of causes of action,

the doctrine precludes further litigation of issues that were decided on the

merits in a final judgment." Slone v. R & S Mining, Inc., 74 S.W.3d 259, 261

(Ky. 2002). However, KRS 342.125 provides that a final judgment in a workers'

compensation proceeding can be reopened if one of four grounds is met "(a)

Fraud; (b) Newly-discovered evidence which could not have been discovered

with the exercise of due diligence; (c) Mistake; and (d) Change 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." See AAA Mine Services v. Wooten, 959 S.W.2d 440, 441 (Ky. 1998)

("Although the concept of finality applies to workers' compensation awards,

certain specified conditions.")

While ALJ Justice failed to order the requested MRI be performed, that

does not preclude Cunigan from asking to reopen his claim. Thus, Res judicata

does not prevent the reopening of this claim. We now look to see if Cunigan

presented evidence of at least one of the grounds in KRS 342.125 which allows

for the reopening of a claim. We focus on the two grounds which the Board

found Cunigan satisfied: newly discovered evidence and mistake.

II. THE MRI DOES NOT CONSTITUTE NEWLY DISCOVERED EVIDENCE UNDER KRS 342.125(1)(b) TO JUSTIFY REOPENING CUNIGAN'S CLAIM

Kuhlman argues that the MRI, which shows the existence of Cunigan's

lumbar injury, is not newly discovered evidence per KRS 342.125(1)(b) to justify

a reopening of his claim. It contends that the MRI cannot be newly discovered

evidence because it did not come into being until the day the original workers'

compensation award was signed by ALJ Justice. In Russellville Warehousing v.

Bassham, 237 S.W.3d 197, 201 (Ky. 2007), we stated:

. . . Black's Law Dictionary 579 (7th ed. 1999) explains that 'newly discovered evidence' is a legal term of art. It refers to evidence that existed but that had not been discovered and with the exercise of due diligence could not have been discovered at the time a matter was decided. Stephens v. Kentucky Utilities Company, 569 S.W.2d 155 (Ky. 1978), explains further that when the term is used in a statute, it may not be construed to include evidence that came into being after a matter was decided. The decisive effect of evidence does not arise unless it is properly viewed as being 'newly discovered.' See Walker v. Farmer, 428 S.W.2d 26 (Ky. 1968). Bassham's autopsy report was not newly discovered evidence for

In this matter, the MRI was not in existence when Cunigan's claim was

decided. Based on our holding in Bassham, we must find that the Board and

Court of Appeals erred by finding that the MRI was newly discovered evidence.

Therefore, Cunigan has not satisfied KRS 342.125(1)(b) to reopen his claim.

III. CUNIGAN'S CLAIM CAN BE REOPENED BASED ON MISTAKE

Kuhlman's last argument is that mistake cannot be used as grounds to

reopen Cunigan's claim. The Board and Court of Appeals found Cunigan made

a prima facie showing of mistake to reopen his award pursuant to KRS 342.125(1)(c) because all of the doctors who examined him believed he suffered

from a hamstring strain and failed to diagnose his disc herniation. Kuhlman

argues that a mistake made by physicians or expert witnesses is not what was

intended to be covered by KRS 342.125(1)(c). Instead Kuhlman contends that

"mistake" in that statute refers to a mutual mistake by the parties. We

disagree.

As written by then Judge Palmore regarding mistake:

[wlhen subsequent events indicate that an award was substantially induced by a misconception as to the cause, nature or extent of disability at the time of the hearing, justice requires further inquiry. Whether it be called a 'mistake' or 'change in conditions' is a matter of mere semantic taste. The important question is whether' the man got the relief to which the law entitled him, based upon the truth as we are now able to ascertain it.

Messer v. Drees, 382 S.W.2d 209, 213(Ky. 1964). Here Cunigan has presented

evidence which potentially indicates that the doctors who examined him

diagnosis, which causes the claimant to not receive proper relief, there must be

a mechanism for the claimant to be able to reopen his claim so he may receive

redress. It would be patently unfair for Cunigan to be unable'to reopen his

claim because of a potential misdiagnosis. Additionally Cunigan was a pro se

claimant throughout the original proceeding and as such had limited

knowledge of how to obtain the MRI via the workers' compensation system.

The purpose of workers' compensation is to compensate a worker who was

injured on the job and allowing the reopening of this claim to determine if the

lumbar injury is compensable is within the spirit of that doctrine. While the

ALJ might review the new evidence presented and ultimately decide against

adjusting Cunigan's award, Cunigan has presented sufficient evidence, in the

form of the MRI and Dr. Wheeler's report, to allow his motion to reopen be

granted due to mistake.

Thus, for the above stated reasons, we affirm the Court of Appeals.

All sitting. Minton, C.J.; Abramson, Cunningham, Noble, Keller, and

Scott, JJ., concur. Venters, J., dissents.

9 COUNSEL FOR APPELLANT, KUHLMAN ELECTRIC CORP.:

George T. Kitchen, III Richard Edwin Neal'

COUNSEL FOR APPELLEE, REX CUNIGAN:

Roy Church Gray, III

COUNSEL FOR APPELLEE, JOSEPH W. JUSTICE:

Joseph Wells Justice

10