RENDERED: OCTOBER 20, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0482-WC

SHERRI DOOM APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-19-50668

MCCRACKEN COUNTY BOARD OF 

EDUCATION; COMMONWEALTH 

OF KENTUCKY WORKERS’

COMPENSATION BOARD; AND 

HONORABLE STEPHANIE L. 

KINNEY, ADMINISTRATIVE LAW 

JUDGE APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.

KAREM, JUDGE: Sherri Doom (“Doom”) petitions this Court for review of the 

decision of the Workers’ Compensation Board (the “Board”) affirming an 

Administrative Law Judge’s (“ALJ”) Opinion and Order dismissing her claims for 

permanent income or medical benefits. The ALJ based the dismissal on Doom’s 
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failure to submit a causation opinion supporting her allegations that a work 

accident caused a permanent injury and necessitated lumbar fusion surgery. 

Following a review of the facts and law, we affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

In 1998, Doom underwent lumbar fusion surgery at the L4-L5 level 

for an injury sustained when she fell from a truck she was inspecting. The facts as 

outlined by the ALJ are not in dispute:

[After the 1998 surgery], she was physically unable to 

return to her work in the trucking industry. She then 

started selling insurance. She began working with 

Kentucky Farm Bureau in 2003. Doom drove a school 

bus for McCracken County from 2008 to 2013, in 

addition to her work as an insurance agent. She returned 

to work for McCracken County in 2018 as a bus monitor 

where she earns $11.97 per hour. She occasionally 

drives a school van for student trips. 

Doom underwent a revision discectomy at the L4-

L5 level in 2008 or 2009. . . . 

On December 17, 2019, Doom was directed to 

report to the local Kentucky Transportation Cabinet 

office for a random drug screen. She stated the office 

was in a temporary location, and there were no handrails 

along the steps. She missed a step as she was exiting the 

office, fell forward and caught herself on her hands and 

knees. . . . She returned to work and continued working 

until her April 2021 [L4-L5 lumbar fusion] surgery. She 

missed approximately two and a half months of work 

after the fusion surgery, returning in July 2021. She has 

missed no additional work since returning from the 

surgery. She testified the 2021 surgery resolved her low 

back pain. 
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Dr. K. Brandon Strenge (“Dr. Strenge”) was Doom’s treating physician and 

performed staged revisions to the lumbar fusion at L4-L5 on April 14, 2021, and 

April 19, 2021. 

On November 23, 2021, Doom filed an Application for Resolution of 

Injury Claim (“Form 101”) with the Kentucky Department of Workers’ Claims 

wherein Doom identified Dr. Strenge as the physician “whose report will be 

provided[.]” Dr. Strenge did, in fact, author a report dated October 9, 2021, which 

provided an opinion on causation and permanent impairment. As required, Doom 

provided a Medical Waiver and Release (“Form 106”) with which her employer 

could obtain her medical records. 

On February 23, 2022, Dr. Magone, an independent medical 

evaluator, examined Doom. Dr. Magone listed correspondence from Dr. Strenge,

dated October 9, 2021, as a source document in the Independent Medical 

Evaluation Report. However, this report was never submitted to the ALJ for 

consideration before the final hearing. At the final hearing, conducted by video 

conference, the following exchange took place:

ALJ: Well, then let me take a moment to review the 

evidence that’s been submitted in this claim. We’ll start 

with the form 101 since that is the pleading that sort of 

gets everything going. So, [attorney for Doom], you 

filed the form 101 on Ms. Doom’s behalf that included 

various attachments. Then it looks like you filed some 

wage records, as well. Did you file anything else, sir?
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DOOM’S ATTORNEY: I’m just trying to make sure Dr. 

Strenge’s report was attached to the 101.

ALJ: You can look if you would like, sir.

DOOM’S ATTORNEY: I’m double checking. I just 

want too (sic) make sure that I did that. Yeah, it’s in the 

record. It looks like actually [defense counsel] filed it.

ALJ: So again, we have form 101 with attachments and 

then filings regarding wage records. You didn’t file 

anything else; is that correct, sir?

DOOM’S ATTORNEY: That is correct.

ALJ: Now, [defense counsel], on behalf of McCracken 

County Board of Education, you’ve deposed Ms. Doom 

previously. I note that transcript had four exhibits; does 

that sound correct?

DEFENSE COUNSEL: Exactly right.

ALJ: We’ve got it looks like three filings from 

Orthopedic Institute of Western Kentucky?

DEFENSE COUNSEL: Yes.

ALJ: We’ve got an AWW post as well as an AWW1.

We have a report from Doctor Magone, M-A-G-O-N-E. 

We also have some records of reports from Nelson 

Chiropractic as well as a report from Doctor Darryl, DA-R-R-Y-L, Thomas, T-H-O-M-A-S. Does that cover 

everything that the defendant filed? 

DEFENSE COUNSEL: Your Honor, that covers 

everything. 

Following the hearing, and pursuant to ALJ order, Doom filed a brief 

that mistakenly referenced Dr. Strenge’s report as having been filed with the Form 
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101. “‘Again, the patient was essentially asymptomatic prior to the work injury 

and the work injury is what brought her symptoms into reality requiring surgery 

after failing attempts at conservative measures.’ Report of Dr. Strenge, filed with 

Form 101.” (Emphasis in original.) 

The ALJ rendered her opinion on October 11, 2022, and it was not 

until after the ALJ dismissed the claim for lack of a supporting opinion that Doom 

realized the omission of the pertinent opinion from Dr. Strenge. Doom filed a 

Petition for Reconsideration on October 19, 2022, attaching Dr. Strenge’s 

correspondence in an effort to correct the prior omission. Doom argued that her 

attorney believed he had filed Dr. Strenge’s letter with the Form 101. Doom 

further argued her counsel’s belief was bolstered by the failure of defense counsel

to file a motion to dismiss or seek summary disposition of the matter. Further, 

Doom maintained that her employer was not prejudiced by failing to attach the 

report because she believed Dr. Magone had a copy of it prior to filing his 

Independent Medical Evaluation Report. Doom asked that she not fall victim to 

procedural rules based on her attorney’s mistaken belief that he had timely filed 

Dr. Strenge’s letter. 

The ALJ overruled the motion as failing to set forth any patent errors. 

Doom then filed a notice of appeal with the Board. Subsequently, the Board 
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entered an opinion affirming the ALJ regarding Dr. Strenge’s letter. This appeal

followed. 

ANALYSIS

Before addressing the substance of the arguments on appeal, we begin 

by discussing Doom’s conformity, or lack thereof, with the appellate rules of 

procedure. Doom’s brief does not “contain at the beginning of the argument a 

statement with reference to the record showing whether the issue was properly 

preserved for review and, if so, in what manner.” Kentucky Rule of Appellate 

Procedure (“RAP”) 32(A)(4). 

“Compliance with [RAP 32(A)][1]is mandatory.” Smothers v. Baptist 

Hospital East, 468 S.W.3d 878, 881 (Ky. App. 2015) (citation omitted). The 

purpose of this rule is to ensure “that we, the reviewing Court, can be confident the 

issue was properly presented to the trial court and therefore, is appropriate for our 

consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). 

“Our options when an appellate advocate fails to abide by the rules 

are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief 

or its offending portions, [RAP 31(H)(1)][2]; or (3) to review the issues raised in the 

1 Kentucky Rule of Civil Procedure (“CR”) 76.12 has been replaced with a nearly identical 

provision about requiring preservation statements contained in the new Rules of Appellate 

Procedure effective January 1, 2023. 

2 CR 76.12(8) has been replaced with RAP 31(H)(1): “A brief may be stricken for failure to 

substantially comply with the requirements of these rules.” 
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brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. 

App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). 

In this case, Doom made a due process argument for the first time on 

appeal to this Court and failed to state in her brief where this argument was 

preserved for our review. Due to this failure to provide the required preservation 

statement, we decline to address Doom’s due process argument. 

However, because the record is small, we have determined Doom 

preserved her argument regarding whether the case should be sent back to the ALJ 

for findings of fact and a determination of whether excusable neglect occurred. 

Therefore, we will ignore the deficiency and proceed with a review of this 

argument. 

a. Standard of Review

In Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233 (Ky. 2019), the 

Supreme Court stated:

The well-established standard of review for the 

appellate courts of a workers’ compensation decision “is 

to correct the [Workers’ Compensation] Board only 

where the Court perceives 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.” E.g., Western Baptist Hosp.

v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler’s

Fleet Serv. v. Martin, 173 S.W.3d 628, 631 (Ky. App. 

2005); Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky. 

App. 2004). See also Special Fund v. Francis, 708 

S.W.2d 641, 643 (Ky. 1986) (if the fact-finder finds in 
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favor of the person having the burden of proof, the 

burden of appeal is only to show that there was some 

substantial evidence to support the decision); cf. Gray v.

Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (if the ALJ 

finds against the party having the burden of proof, the 

appellant must “show that the ALJ misapplied the law or 

that the evidence in her favor was so overwhelming that 

it compelled a favorable finding”).

Id. at 237-38.

b. Discussion

Throughout the record, Doom readily admits that the failure to submit 

Dr. Strenge’s causation letter was an oversight on her part. As such, she motioned 

the ALJ to reopen her claim under Kentucky Revised Statute (“KRS”) 342.125 

based on excusable neglect, asking that the ALJ reassess her claim and consider 

Dr. Strenge’s opinion regarding causation. 

KRS 342.125 states:

(1) Upon motion by any party or upon an administrative 

law judge’s own motion, an administrative law judge 

may reopen and review any award or order on any of the 

following grounds: 

(a) Fraud; 

(b) Newly-discovered evidence which could not have 

been discovered with the exercise of due diligence; 

(b) Mistake; and 

(d) Change of disability as shown by objective 

medical evidence of worsening or improvement of 
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impairment due to a condition caused by the injury 

since the date of the award or order.

(Emphasis added.)

While KRS 342.125(1)(c) lists “mistake” as a valid ground for 

reopening a claim, the statute does not contain the specific term “excusable 

neglect.” However, Doom argues the justification for reopening a non-Workers’ 

Compensation judgment via CR 60.023can be equated to reopening a Workers’ 

Compensation Claim under KRS 342.125(1)(c), citing Wheatley v. Bryant Auto 

Service, 860 S.W.2d 767 (Ky. 1993). 

In Wheatley, an ALJ had previously found the employee permanently

disabled from a work-related wrist injury. Id. at 768. The ALJ awarded a twentyfive percent disability for so long as Wheatley was disabled, but for a period not to 

exceed 425 weeks. Id. Thirty-five days later, the ALJ realized he had mistakenly 

3 CR 60.02: 

On motion a court may, upon such terms as are just, relieve a party or his legal 

representative from its final judgment, order, or proceeding upon the following 

grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly 

discovered evidence which by due diligence could not have been discovered in 

time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; 

(d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) 

the judgment is void, or has been satisfied, released, or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise vacated, or it is 

no longer equitable that the judgment should have prospective application; or (f) 

any other reason of an extraordinary nature justifying relief. The motion shall be 

made within a reasonable time, and on grounds (a), (b), and (c) not more than one 

year after the judgment, order, or proceeding was entered or taken. A motion 

under this rule does not affect the finality of a judgment or suspend its operation.
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applied the 425-week duration of benefits limitation to the claim. Id. The ALJ 

subsequently amended the order to reflect that benefits would continue for so long 

as Wheatley was disabled, as provided by the statute in effect at the time of injury. 

Id. 

The employer appealed to the Board, arguing that the ALJ erred in 

reopening the case. Id. In considering the litigants’ arguments, the Supreme Court 

recognized that applying the laws, as they were interpreted at the time, could end 

in injustice for the employee: 

Apparently, the seminal case in Kentucky 

establishing that the reopening statute (then Kentucky 

Statutes § 4902) for workers’ compensation claims may 

be invoked for mistakes of law as well as fact is Stearns

Coal & Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d 

518 (1936). There we said, at 519:

Clearly, if a mistake of law is “good cause” 

for review of an order or decision of the 

board, it is not perceived why our statute 

authorizing a review on the ground of 

mistake should not include mistakes of law 

as well as fact. Indeed, the plain purpose of 

the statute is to enable the board to deal with 

the situation in such a way as to prevent an

injustice being done. We therefore conclude 

that, unless the case has been passed on by 

the court on appeal, the board may at any 

time within the period for which 

compensation is allowed change or revoke 

any order on the ground of mistake of law. 

(Emphasis added.)

. . . . 
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Here we believe that the ALJ was acting properly 

and in the interest of justice when he availed himself of 

the statutory remedy set out in KRS 342.125 to correct 

his admitted mistake in applying the law in this

compensation proceeding, just as could have been done 

under CR 60.02 had it been a civil proceeding. Since the 

authority for correcting this mistake was statutory, there 

was no prohibition by reason of the finality of the 

decision against making the correction, such as there 

would be had there been a court decision where finality 

had attached. Accordingly, the decisions of the Court of 

Appeals and the Board holding otherwise are reversed, 

and the Order of the ALJ reinstated.

Id. at 768-69. 

Wheatley is easily distinguishable from the case sub judice in that the 

mistake in Wheatley was a mistake of the ALJ on the application of the law, not a 

mistake, as here, by the claimant. We find no law extending the application of 

“mistake” to actions on the part of a claimant that might be otherwise forgiven as 

“excusable neglect” under CR 60.02. 

Moreover, the Supreme Court noted in an opinion rendered 

subsequent to Wheatley that “[a]lthough the regulations that govern workers’

compensation proceedings have adopted several of the Rules of Civil Procedure, 

they have not adopted CR 60.01 or CR 60.02. KRS 342.125(1) states the only 

grounds for reopening a final workers’ compensation award.” Burroughs v.

Martco, 339 S.W.3d 461, 465 (Ky. 2011). 
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Had the legislature wanted to include “excusable neglect” on the part 

of a claimant as valid grounds to reopen a claim, it would have promulgated a 

regulation identical to CR 60.02 allowing it. Without clear direction from the 

Supreme Court or amendment of KRS 342.125, we cannot apply “excusable 

neglect” as grounds for reversal in the case sub judice. 

CONCLUSION

For the foregoing reasons, we affirm the Board’s opinion.

ALL CONCUR.

BRIEF FOR APPELLANT:

Edwin A. Jones

Jared K. Holt

Paducah, Kentucky

BRIEF FOR APPELLEES:

R. Christion Hutson

Paducah, Kentucky