DONALD MORRISON

APPEAL FROM COURT OF APPEALS

V. 05-CA-0324-WC

WORKERS' COMPENSATION NO. 02-70313

(910urf laf

2005-SC-0719-WC

CORRECTED: AUGUST 29, 2006

MODIFIED: AUGUST 24, 2006

RENDERED: MAY 18, 2006

TO BE PUBLISHED

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APPELLANT

THE HOME DEPOT; SEDGWICK CLAIMS

MANAGEMENT SERVICES; WORKERS'

COMPENSATION BOARD; AND HON. JOHN B.

COLEMAN, ADMINISTRATIVE LAW JUDGE APPELLEES

OPINION OF THE COURT

REVERSING AND REMANDING

This appeal concerns the report of a medical evaluation that was ordered under

KRS 342 .315 and performed by a physician who was not employed by the University of

Kentucky or University of Louisville medical school. An Administrative Law Judge (ALJ)

overruled the claimant's motion to strike, rejecting an assertion that the physician was

not a university evaluator within the meaning of KRS 342.315. Affirming, the Workers'

Compensation Board and Court of Appeals reasoned that the statute required the

commissioner (now executive director) to contract with the universities "to evaluate

workers," that it required "physicians and institutions performing evaluations" to submit

reports, but that it did not require the universities to select physicians who were

university employees. The claimant asserts that they misconstrued KRS 342.315. We
agree; therefore, we reverse and remand this claim for further proceedings .

On June 24, 2002, the claimant fell backward from the bed of a truck while

working for Home Depot in Florence, Kentucky. He completed his shift and then sought

chiropractic treatment from Dr. Skinner for neck, shoulder, and back injuries. Dr.

Skinner provided most of his treatment.

Based on subsequent medical evidence, disputes arose over whether or when

the claimant reached maximum medical improvement (MMI) regarding the shoulder

condition and over the impairment due to all conditions. Although acknowledging the

employer's right to require continued medical examinations, the claimant objected to

having to travel to examinations by physicians in the vicinity of Lexington rather than the

greater Cincinnati area where he lived. As a consequence, the ALJ ordered the

claimant to undergo an evaluation "by a physician at the assigned university medical

school" and to address the disputed issues. A March 1, 2004, letter from the Office of

Workers' Claims advised the claimant that the evaluation was scheduled with Dr.

Martyn Goldman for March 29, 2004, at 12:15 p.m., at the Medical Assessment Clinic

on Dutchman's Parkway in Louisville, and indicated that a map of the site within the

university facility was enclosed . The claimant reported for the evaluation, and Dr.

Goldman submitted both a report and a supplemental report containing his clinical

findings and opinions. The employer also filed Dr. Goldman's initial report into evidence

but does not assert presently that it was admissible except under KRS 342 .315.

The May 27, 2004, hearing order indicates that a ruling on a motion to strike the

report was reserved. On June 1, 2004, the claimant filed a motion to strike Dr.

Goldman's report, asserting that he was not a university evaluator as contemplated by

KRS 342 .315 and that his opinions were neither fair nor unbiased. Although the motion
was filed beyond the 10 days the regulations prescribe, the employer failed to assert

that the motion was untimely or that the claimant waived any right to object to the

report. Therefore, arguments to that effect were not preserved for appeal and will not

be considered. Relying on the plain language of KRS 342 .315, the ALJ overruled the

motion to strike Dr. Goldman's report. After his petition for reconsideration was

overruled, the claimant appealed .

Dr. Goldman is a board-certified orthopedic surgeon whose qualifications were

on file with the Department of Workers' Claims (now Office of Workers' Claims) when

the evaluation was performed. The claimant does not challenge his expertise . He

argues that Dr. Goldman was not a university evaluator within the meaning of KRS

342 .315 because he was not employed by one of the university medical schools ;

therefore, his report was inadmissible . The claimant maintains that he objected as

soon as he learned that Dr. Goldman was not a university employee whose clinical

findings and opinions could be presumed to be unbiased . See Magic Coal Co. v. Fox,

19 S.W .3d 88 (Ky. 2000). He explains that Dr. Goldman is not a teacher of medicine.

He limits his practice to performing medical evaluations and works for a corporation

whose business is to provide expert medical witnesses, largely for employers and

insurance companies .

Arguing that KRS 342 .315 contemplated evaluators who were university

employees, the claimant relies on various documents, including the ALJ's February 17,

2004, order to undergo the evaluation; a 1998 Board opinion; materials from the 1998

University of Kentucky Workers' Compensation Institute ; a February 16, 2000,

statement by former governor Patton regarding university evaluators; the decision in

Magic Coal Co . v. Fox, supra ; and an article regarding expert witnesses in workers'

-3-
compensation claims (90 Ky. L.J . 891 (200112002)). Although he acknowledges that

the statute gives the Department of Workers' Claims (now Office of Workers' Claims)

authority to contract with the universities to evaluate injured workers, he asserts that it

does not give the Department authority to permit a university to select a private

physician to perform the evaluation. Flying J Travel Plaza v. Com ., Transp. Cab., Dept.

of Highways, 928 S .W.2d 344 (Ky. 1996); Public Service Commission of Kentucky v.

Attorney General of the Commonwealth , 860 S .W .2d 296 (Ky. App. 1993).

The ALJ decided this claim on July 7, 2004, at which time KRS 342 .315

provided, in pertinent part, as follows :

(1) The commissioner shall contract with the University of Kentucky

and the University of Louisville medical schools to evaluate workers

who have had injuries or become affected by occupational

diseases covered by this chapter. Referral for evaluation may be

made to one (1) of the medical schools whenever a medical

question is at issue.

(2) The physicians and institutions performing evaluations pursuant

to this section shall render reports encompassing their findings and

opinions in the form prescribed by the commissioner . Except as

otherwise provided in KRS 342.316, the clinical findings and

opinions of the designated evaluator shall be afforded presumptive

weight by administrative law judges and the burden to overcome

such findings and opinions shall fall on the opponent of that

evidence . When administrative law judges reject the clinical

findings and opinions of the designated evaluator, they shall

specifically state in the order the reasons for rejecting that

evidence .

(3) The executive director or an administrative law judge may, upon

the application of any party or upon his own motion, direct

appointment by the commissioner, pursuant to subsection (1) of

this section, of a medical evaluator to make any necessary medical

examination of the employee . Such medical evaluator shall file with

the commissioner within fifteen (15) days after such examination a

written report. The medical evaluator appointed may charge a

reasonable fee not exceeding fees established by the

commissioner for those services.
Magic Coal Co. v. Fox, supra, involved claims by three coal workers for retraining

incentive benefits under KRS 342 .732(1)(a). In all three claims, the last exposure to

coal dust occurred before December 12, 1996. At issue was whether KRS 342.315

governed claims that arose before it was enacted and, if so, the meaning and legal

effect of the term "presumptive weight."

The court determined that the university evaluation provision enacted on

December 12, 1996, was procedural and governed all claims pending before an AU on

or after its effective date . Addressing the term "presumptive weight," the court

determined that KRS 342.315(2) created a rebuttable presumption governed by KRE

301 . Id . at 95-98 . The proven fact supporting the presumption was that evaluating

physicians would be provided under contracts between the Department of Workers'

Claims (now Office of Workers' Claims) and the university medical schools . Noting that.

vast differences frequently existed in the opinions of the parties' medical experts, the

court determined that clinical findings and opinions from an unbiased medical expert

would reasonably be expected to assist the fact-finder and that KRS 342 .315 assured

sufficient numbers of such experts. Moreover, it was reasonable to infer that physicians

affiliated with a medical school were experts in their fields and less likely to have a

preconceived bias favoring the plaintiff or the defense than experts the parties hired.

Therefore, it was neither unreasonable nor irrational to presume that their clinical

findings and opinions would accurately reflect the claimant's medical condition absent

evidence to the contrary. The court determined that KRS 342 .315(2) neither shifted the

risk of non-persuasion to the defendant nor raised the bar regarding the claimant's

burden of persuasion. It did not restrict the ALJ's authority to weigh conflicting evidence

but simply required the ALJ to state a specific basis for disregarding a university
evaluator's testimony. In other words, a university evaluator's testimony constituted

substantial evidence*that the ALJ could not disregard absent evidence to the contrary.

The purpose of KRS 342 .315 is to obtain clinical findings and opinions from

unbiased medical experts and to assure sufficient numbers of such experts. Id. KRS

342 .315 does not authorize the university medical schools to subcontract with private

physicians to perform evaluations . Nor does it imply a legislative intent to grant such

authority. The rationale for our conclusions in Magic Coal Co . v. Fox, supra, was that

physicians who performed evaluations under KRS 342.315 would be "affiliated with,"

i .e . , employed by or on the staff of, one of the designated medical schools . Id . at 95-

96. A physician who is not affiliated with a university medical school is not a proper

evaluator under KRS 342 .315. Therefore, reports from such a physician are not

admissible for the purposes of KRS 342.315 .

The decision of the Court of Appeals is reversed, and this claim is remanded to

the ALJ for further proceedings.

Lambert, C.J ., and Cooper, Graves, Scott, and Wintersheimer, JJ ., concur.

Roach, J ., dissents by separate opinion in which Johnstone, J ., joins .
COUNSEL FOR APPELLANT:

Otto Daniel Wolff

McMurtry & Wolff

" 405 Garrard Street

Covington, Kentucky 41011

COUNSEL FOR APPELLEE,

THE HOME DEPOT

Kamp T . Purdy

Ferreri & Fogle

300 East Main Street, Suite 400

Lexington, Kentucky 40507
DONALD MORRISON

would affirm .

in his Opinion and Award :

2005-SC-0719-WC

APPEAL FROM COURT OF APPEALS

2005-CA-0324-WC

WORKERS' COMPENSATION NO. 02-70313

THE HOME DEPOT; SEDGWICK CLAIMS

MANAGEMENT SERVICES; WORKERS'

COMPENSATION BOARD ; AND HON. JOHN B.

COLEMAN, ADMINISTRATIVE LAW JUDGE

DISSENTING OPINION BY JUSTICE ROACH

RENDERED : MAY 18, 2006

TO BE PUBLISHED'

The Administrative Law Judge, the Workers' Compensation Board, and the Court

of Appeals correctly construed KRS 342.315 as imposing no requirement that medical

evaluations described in the statute be performed by university employees. Therefore, I

I would first note that the physician in question, Dr. Martyn Goldman, was not just

a random person chosen to evaluate Appellant . As the Administrative Law Judge noted

[1] ordered a university evaluation pursuant to [KRS 342.315] as there was

a medical question in regards to the plaintiff's shoulder condition . The

Office of Workers' Claim made the referral to the University of Louisville

who scheduled the evaluation with Dr. Goldman. There is nothing in the

statute which prevents the university medical schools from contracting

with duly qualified physicians . . . .

Though the ALJ's characterization of the relationship between Dr. Goldman and the

University of Louisville is not explicit, it clearly states that the university had chosen Dr.
Goldman as its agent in performing the evaluation and strongly implies that Dr.

Goldman did so as a subcontractor. The ALJ also arrived at what I think is the correct

construction of KRS 342.315.

KRS 342.315 provides, in relevant part, as follows:

(1) The commissioner shall contract with the University of Kentucky and

the University of Louisville medical schools to evaluate workers who have

had injuries or become affected by occupational diseases covered by this

chapter. Referral for evaluation may be made to one (1) of the medical

schools whenever a medical question is at issue.

(2) The physicians and institutions performing evaluations pursuant to this

section shall render reports encompassing their findings and opinions in

the form prescribed by the commissioner. Except as otherwise provided in

KRS 342.316, the clinical findings and opinions of the designated

evaluator shall be afforded presumptive weight by administrative law

judges and the burden to overcome such findings and opinions shall fall

on the opponent of that evidence . When administrative law judges reject

the clinical findings and opinions of the designated evaluator, they shall

specifically state in the order the reasons for rejecting that evidence .

In construing statutes, we have consistently employed the following rules of

statutory construction :

The best way in most cases to ascertain such intent or to determine the

meaning of a statute is to look to the language used, but no intention

must be read into the statute not justified by the language. The primary

rule is to ascertain the intention from the words employed in enacting the

statute and not to guess what the Legislature may have intended but did

not express. Resort must be had first to the words, which are decisive if

they are clear, The words of the statute are to be given their usual,

ordinary, and everyday meaning.

Gateway Const. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)(citations omitted) .

In light of these principles, the statute is clear-it does not require the physicians

to be university employees or, in the words of the majority opinion, "affiliated with" the

medical schools. These requirements simply are not present in the statute. Rather, the

statute simply requires the commissioner to contract with the university medical schools
to evaluate workers and that the "physicians and institutions performing evaluations"

render reports on a prescribed form . KRS 342.315(2) contains no requirement that the

physicians who perform the evaluations be university employees or otherwise "affiliated

with" the university. Absent such a requirement, nothing in the statute prevents the

universities from selecting physicians who are not university employees to perform the

evaluations .

Moreover, the statute's use of the language "[t]he physicians and institutions"

clearly contemplates two separate sets of entities who can perform the evaluations. But

by requiring that the universities themselves, or at least their direct employees, perform

the evaluations, the majority opinion renders the words "physicians and" superfluous .

However, "[i]t is a cardinal principle of statutory construction that a statute ought, upon

the whole, to be so construed that, if it can be prevented, no clause, sentence, or word

shall be superfluous, void, or insignificant." Brooks v. Lexington-Fayette Urban County

Housing Authority, 132 S.W.3d 790, 811 n .4 (Ky. 2004) (quoting TRW Inca v Andrews,

534 U .S . 19, 31, 122 S.Ct. 441, 449,151 L.Ed.2d 339 (2001)) (internal quotation marks

omitted).

The General Assembly could easily have specified that evaluators must be

university employees or "affiliated with" the institutions, but it did not. Moreover, nothing

in the language of the statute implies such intent. It is not this Court's role to speculate

what the legislature may have intended but failed to express . Commonwealth v. Allen,

980 S.W.2d 278, 280 (Ky. 1998). Yet, that is precisely what the majority has done .

respectfully dissent.

Johnstone, J ., joins this dissenting opinion.
2005-SC-0719-WC

CORRECTED: AUGUST 29, 2006

ularmt Iffourf of ~ruturkV

DONALD MORRISON APPELLANT

APPEAL FROM COURT OF APPEALS

V. 2005-CA-0324-WC

WORKERS' COMPENSATION NO. 02-70313

THE HOME DEPOT; SEDGWICK

CLAIMS MANAGEMENT SERVICES;

WORKERS' COMPENSATION BOARD;

AND HON. JOHN B. COLEMAN,

ADMINISTRATIVE LAW JUDGE APPELLEES

ORDER DENYING REHEARING AND MODIFYING OPINION

The petition for rehearing filed by appellant is DENIED. The Opinion is modified

on page 6 to reflect the following change beginning with "Therefore, a report from such

a physician is not admissible for the purposes of KRS 342.315." This change does not

affect the holding of the Court.

All concur except Roach, J., who would grant rehearing.

Entered : August 24, 2006
DONALD MORRISON APPELLANT

APPEAL FROM COURT OF APPEALS

V. 05-CA-0324-WC

WORKERS' COMPENSATION NO. 02-70313

THE HOME DEPOT; SEDGWICK CLAIMS

MANAGEMENT SERVICES; WORKERS'

COMPENSATION BOARD; AND HON. JOHN B .

COLEMAN, ADMINISTRATIVE LAW JUDGE APPELLEES

~uyrmr dourf. of Arufurkg

ORDER CORRECTING

The order denying rehearing and modifying the opinion rendered August 24,

2006, and page 1 of the original opinion modified August 24, 2006, are corrected to

show the Court of Appeals case No. as 2005-CA-0324-WC in the captions.

Entered August 29th , 2006

2005-SC-0719-WC