# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANTTO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENTTO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: MARCH 23, 2017 NOT TO BE PUBLISHED 

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LANDY MILLS APPELLANT
ON APPEAL FROM COURT OFAPPEALS V. CASE NO. 2015-CA-001168-WC WORKERS' COMPENSATION BOARD NO. 13-WC-00153
NALLY AND HAMILTON ENTERPRISES, HONORABLEJ. GREGORYALLEN, ADMINISTRATIVE LAW JUDGEAND WORKER'S COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT AFFIRMING
I. FACTUAL AND PROCEDURAL BACKGROUND.APPELLEES

Landy Mills filed a workers'compensation claim against Nally and Hamilton (Nally) when he was injured during the course ofhis employment. Mills claimed to have injured his back, his right leg, and his right foot. At the hearing, Mills and Nally agreed to a $40,000 lump-sum agreement that included interest, attorney's fees, vocational rehabilitation, temporary total disability, permanenttotal disability, permanentpartial disability, a 

### waiverof the right to reopen, and a waiver ofmedical expenses. This settlement agreement acted as a total dismissal ofthe claim with prejudice. The agreement contained, in pertinentpart, the following key terms and conditions:In consideration ofthe lump sum payment setforth above, the Plaintiffand the Defendanthereby agree that the Plaintiff. completelyreleases and forever discharges the Defendantfrom any and all liability for further reopeningfor income benefits pursuant to KRS 342.125 based on an increase in occupational disability, statutory disability, or any other theory ofrecovery which the Plaintiffnow has, orwhich mayhereafter accrue or otherwise be acquired, on account of, orwhich may in any way grow out ofthe alleged work-related injury and that the Plaintiffs claim for benefits shall be dismissed with prejudice. 

### Plaintiffshallhave no right

### to reopen for increasedoccupationaldisabilitybenefits inconsiderationof theamountspaidpursuantto 

### this agreement. $8,000.00of the lump sumsettlement

### to the Plaintiffconstitutesconsideration for the waiverofthe right 

### to reopen. $8,000.00 ofthe lump sum constitutes consideration for the waiver ofall past, present, and future medical expenses. No past orfuture medical bills will be paid by the DefendantEmployer. $500.00 ofthe lump sum is specifically paid as consideration for the waiver ofall claims for vocational rehabilitation. The remainder ofthe settlementproceeds constitutes consideration for the waiver ofall claims for income benefits including temporary total disability; permanentpartial disability; permanenttotal disability; interest and attorney fees. The agreement also recognized that Mills was apprised to the terms and conditions and fully understood he was dismissing future benefits with prejudice. The ChiefAdministrative LawJudge (CAW) approved the settlement agreement on.August 27, 2013. In the time leadingup to approvingthe agreement, Mills had received an MRI ofhis lumbar spine and was referred to Dr. Bean for surgical intervention onAugust 26, 2013-the day before the CAW approved the settlement. Accordingly, on September 6, 2013, Mills filed a "Motion to SetAside Proposed Settlement," asserting his need for surgery as the basis for setting aside the agreement. Nally objected to both Mills's characterization ofthe motion and the merits ofhis petition. In Nally's view,

2the motion was, by its terms, a motion to reopen the case, that the express terms ofthe agreement prevented Mills from pursuing. The CAW granted Mills's motion. But on appeal, the Board dismissed the appeal after determining that the CAW treated the motion to set aside the settlement as a motion to reopen Mills's claim. Under Kentucky Rules ofCivil Procedure (CR) 54.02(1) and (2), an orderis only appealable ifit terminates the action itself, acts to decide all matters litigated by the parties, determines all the rights ofthe parties, and divests theAW ofhis orher authority. The Board then reasoned thatbecause the CAW's order only determined that Mills made
a primafacie showing that he may prevail under evidence proffered in favor of reopening, the orderwas not final and appealable. The order failed to show a change in disability caused by the injury and there was no final award. So the Board dismissed and the case was then reassigned to anAW. The AW then ordered that the settlement agreementwas valid and enforceable under KRS 342.265 and that Mills's motion to set aside the agreement did not comportwith Kentucky administrative regulations. Under KRS 325.265, a reopening may bejustified through evidence the agreement
was procured by fraud, mistake, or newly-discovered evidence that could not have been discovered by due diligence. Mills's referral to Dr. Bean occurred before the agreement, so the AW concluded his new need for surgery did not amount to newly-discovered evidence. Mills acknowledged that he fully understood and consented to the terms ofthe agreement, so theAW concluded that the plain language waived Mills's ability to reopen the claim.

3Mills then filed a motion for reconsideration with the AW. Specifically, Mills asserted that he had not filed a motion to reopen under the terms ofKRS 325.265 and insisted his motion was in fact a motion to set aside the agreement. The AW denied the petition for reconsideration. In his order, the AW reiterated that the Board determined that though Mills did not label his original motion as such, itwas in fact a motion to reopen to be considered under the provisions ofKRS 325.265. Mills appealed to the Board again. The Board affirmed the AW. In reachingits decision, the Board again found there was no basis for setting aside the previously approved settlement. KRS 325.265(4) provides that the onlyremedy once an agreement has been approved by anAW is for a party to move to reopen under KRS 342.125. And this process involves two steps: (1) a claimantfiles a primafacie motion providing sufficient information to demonstrate a substantial possibility of success; and (2) ifhe succeeds in demonstrating a primafacie case, the matter is assigned to anAW to set additional prooftime to fully adjudicate the merits ofreopening. The Board held that the CAW's original order setting aside the agreementwas not controllingbecause it amounted to making a ruling prior to taking proofon the questions offraud, mistake, or newly discovered evidence. Mills then appealed to the Kentucky Court ofAppeals. The Court ofAppeals 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, thepanel concluded the CAW's

4order settingaside the agreement should have stated itwas reopening the claim-in essence, determining that Mills established a prima facie case. The courtthen ruled that the agreementwas valid and supported by substantial evidence, with Mills acknowledging that he entered into the agreement knowingly and received monetary consideration in exchange for waiving his right to reopen. Because Mills failed to prove the existence offraud, mistake, or newly discovered evidence, the Court ofAppeals ruled that theAW had no basis for reopeningthe claim. Mills appealed to this Court.
II. 

### ANALYSIS. Standard ofReview. On appellate review ofthe Board's decision in a workers'compensation appeal, ourrole "is to correct the Board onlywhere the
...Court believes the Board has overlooked or misconstrued controlling statutes or precedent, or committed an errorin assessing the evidence so flagrant as to cause gross injustice."1 This is a highly deferential standard and we will only displace the Board'sjudgmentwith our own upon a finding ofgrave error. As such, Mills faces an uphill battle to succeeding on appeal. 

### The Board's Opinion was Supportedby Substantial Evidence. Mills's essential argument on appeal is that the Board failed to apply the doctrine ofresjudicatain rendering its decision. He correctlyhighlights that the doctrine indeed does apply to workers'compensation claims. 2 In this

1 Weste~BaptistHosp. v. Kelly, 827 S.W.2d 685,687 (Ky. 1992). 2 See Whittaker v. Cecil, 69 S.W.3d 69, 72 (Ky. 2002).
5context, the CAW to set aside the agreement. So accordingto Mills, the AW ignored resjudicatawhen he ruled that the settlement agreement is enforceable. Nally alternatively argues, as both the Board and the Court ofAppeals agreed, that an approved settlement agreement carries the same full force and effect as an award from ajudge. 3 Additionally, Nally reminds us that a claimant maywaive his right to reopen his claim as part ofa settlement agreement.4 And indeed, we have recognized that settlement agreements are favored and should be enforced whenever possible.s Nally contends that once the settlementwas approved, Mill's only avenue for reliefwas a motion to re-open the claim under the strictures ofKRS 342.125. We agree. KRS 342.265(4) provides .that "Ifthe parties have previously filed an agreementwhich has been approved by the administrative lawjudge, and compensation has been paid or is due in accordance therewith and the parties thereafter disagree, eitherparty may invoke the provisions ofKRS 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 agreementwas approved by anAW, 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 SeeBell 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)).
4 SeeRichey v. PerryArnold, Inc., 391 S.W.3d 705, 710 (Ky. 2012). s SeeBeale v. FaultlessHardware, 837 S.W.2d 893 (Ky. 1992).
6this statute, Mills's onlyway to alter the approved agreement is to invoke the terms ofKRS 342.125. And he did not move the Board on those grounds. But moreover, Mills's settlement agreement expresslycontracted away his right to reopen this claim. In 

### Whittaker 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 ofthe underlying agreement.6 Here, there are no allegations offraud orbad faith in entering the settlement agreement. Mills received a lump sum of$8,000 in exchange for vacating his statutoryright to reopen his claim. To us, it seems clear that the Board was correctin rejecting his attempts to continue this workers'compensation claim
once the agreement had been approved.
III. CONCLUSION. For 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.3d 466 (Ky. 2000).
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