RENDERED: AUGUST 30, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0887-WC

DERRICK SHEPHERD APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-19-56280

BOBBY HAMILTON; FLAGET 

MEMORIAL HOSPITAL; 

HONORABLE STEPHANIE KINNEY, 

ADMINISTRATIVE LAW JUDGE; 

ULP ACB ORTHOPEDICS; ULP 

RADIOLOGICAL ASSOCIATES; 

AND WORKERS’ COMPENSATION 

BOARD APPELLEES 

OPINION

REVERSING

**   **  **

BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.

ACREE, JUDGE: Appellant, Derrick Shepherd, appeals the Workers’ 

Compensation Board’s (Board) June 24, 2022, opinion affirming several orders 

issued by an administrative law judge (ALJ). In light of new precedent set forth by 
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the Kentucky Supreme Court in Farley v. P&P Constr., Inc., 677 S.W.3d 415 (Ky. 

2023), we reverse.

Appellee, Bobby Hamilton, sustained injuries on November 5, 2019, 

when sheetrock fell on him while he was working. His injuries were readily 

apparent, and he filed a Form 101 on March 22, 2021. In its opinion, the Board 

indicated that Hamilton suffered a displaced left lateral tibial plateau fracture and a 

displaced left bimalleolar ankle fracture. Thereafter, Kentucky Employers’ Mutual 

Insurance (KEMI) began paying medical bills. 

At issue are three pre-award bills submitted that Appellant claims are 

untimely. All three bills were submitted to KEMI more than 45 days after the 

medical provider initiated services.1

Appellant argues as he did before the administrative tribunal that these 

bills are not compensable because they were submitted to KEMI outside of the 45-

day requirement found in KRS2 342.020(4). The ALJ disagreed. On review by the 

Board, the Board agreed with the ALJ, reading the Kentucky Supreme Court’s 

decision in Wonderfoil, Inc. v. Russell, 630 S.W.3d 706 (Ky. 2021), as determining 

1 ULP Radiological Associates rendered services to Hamilton on November 7, 2019, and submitted 

bills to KEMI for these services on March 9, 2020. Flaget Memorial Hospital rendered services 

on November 5, 2019, and submitted bills to KEMI for these services on August 17, 2021. ULP 

ACB Orthopedics rendered services on multiples dates in late 2020 and early 2021 and submitted 

bills to KEMI for these services on August 24, 2021. 

2 Kentucky Revised Statutes.
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that the 45-day time limit of KRS 340.020(4) only applies post-award submission 

of medical bills. This appeal follows.

Before addressing the merits, we must address Appellee’s failure to 

file a brief in this appeal. Pursuant to RAP3 31(H)(3): “If the appellee’s brief has 

not been filed within the time allowed, the court may: (a) accept the appellant’s 

statement of the facts and issues as correct; (b) reverse the judgment if appellant’s 

brief reasonably appears to sustain such action; or (c) regard the appellee’s failure 

as a confession of error and reverse the judgment without considering the merits of 

the case.” RAP 31(H)(3). We choose to accept Appellant’s statement of facts and 

issues as correct.

When this Court undergoes appellate review of a Board’s decision, we 

review de novo. Farley, 677 S.W.3d at 419 (citing Ford Motor Co. v. Jobe, 544 

S.W.3d 628, 631 (Ky. 2018)). “As a reviewing court, we are bound neither by an 

ALJ’s decisions on questions of law or an ALJ’s interpretation and application of 

the law to the facts. In either case, our standard of review is de novo.” Jobe, 544 

S.W.3d at 631 (citing Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. 

App. 2009)). Where, as here, we engage in statutory interpretation, “we apply the 

same rules that are applicable to statutory construction and interpretation.”

Comprehensive Home Health Servs., Inc. v. Prof. Home Health Care Agency, Inc., 

3 Kentucky Rules of Appellate Procedure.
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434 S.W.3d 433, 441 (Ky. 2013) (citing Revenue Cabinet v. Joy Techs., Inc., 838 

S.W.2d 406 (Ky. App. 1992)). See Wonderfoil, 630 S.W.3d at 709-10. 

We are fortunate that the Kentucky Supreme Court has already, and 

recently, answered the question presented to us in this appeal – does the 45-day 

requirement for submitting medical bills found in KRS 342.020(4) apply to preaward charges for medical treatment? The Supreme Court answered in the 

affirmative.

In Farley, under similar facts as those presented here, the Kentucky 

Supreme Court determined nothing in the statutes, regulations, or caselaw 

“provides support for the Board’s ruling that the 45-day requirement for a provider 

to submit medical billing statements only applies post-award.” 677 S.W.3d at 422.

Here, the Board relied on the Court’s reasoning in Wonderfoil, but the 

Court in Farley explained why the Board’s interpretation of Wonderfoil goes too 

far:

[I]n Wonderfoil we only addressed the time limits for 

employees to submit medical bills to the employer for 

repayment as set forth in 803 KAR[4] 25:096 § 11(2).

Neither that regulation, nor this Court, addressed the 

statutory language of KRS 342.020(4) requiring medical 

service providers to submit billing statements within 45 

days of service.

Farley, 677 S.W.3d at 422. The same distinction applies here.

4 Kentucky Administrative Regulations.
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Farley controls. The medical bills at issue were not timely submitted. 

Each was submitted beyond the 45-day time limit allowed in KRS 340.020(4). 

Therefore, KEMI is under no statutory obligation to pay the medical bills that were 

not submitted within the statutory limitation period.

As the Kentucky Supreme Court said in Farley: “Arguments by 

either the Board or providers regarding the narrow timeframe of the 45-day 

window for the submission of medical billings must be made to the legislature as 

its province is to draft and, if necessary, amend our Commonwealth’s statutes.” 

Farley, 677 S.W.3d at 423. 

For the foregoing reason, we reverse.

ALL CONCUR.

BRIEF FOR APPELLANT:

Johanna F. Ellison

Lexington, Kentucky

NO BRIEF FOR APPELLEE.