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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 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: MARCH 17, 2016 

NOTTO BE PUBLISHED 

,Suprrnir Court off rtii i ituid 

2015-SC-000299-WC 

AT -EL1 -1-16 imok ev-cb4.; ev4si-b.• 

CROSS MAINTENANCE, LLC APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NOS. 2014-CA-001485-WC AND 2014-CA-001593-WC 

WORKERS' COMPENSATION BOARD NO. 12-70373 

MARK R. RIDDLE; 

HONORABLE WILLIAM J. RUDLOFF, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

AND 2015-SC-000306-WC 

MARK RIDDLE CROSS-APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NOS. 2014-CA-001485-WC AND 2014-CA-001593-WC 

WORKERS' COMPENSATION BOARD NO. 12-70373 

CROSS MAINTENANCE, LLC; 

HONORABLE WILLIAM J. RUDLOFF, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD CROSS-APPELLEES 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Cross Maintenance, LLC, appeals a Court of Appeals decision 

regarding an alleged settlement agreement between itself and Appellee, Mark R. 
Riddle. Cross argues that there was not an enforceable settlement agreement 

because: 1) the Administrative Law Judge ("ALJ") rendered an opinion and 

award before the parties reached an agreement and thus KRS 342.285(1) made 

his findings binding on the parties; 2) the ALJ's opinion and award was 

unbeknownst to the parties while the negotiations were ongoing creating a 

mutual mistake of fact which prevents enforcement of the settlement; and 3) 

the parties' failure to negotiate when the weekly payments would commence 

shows the settlement agreement was incomplete and therefore unenforceable. 

Riddle cross-appeals from the Court of Appeals decision arguing that it was 

error to remand the matter to the ALJ to determine if the settlement agreement 

reached between the parties was for a complete dismissal of all rights. For the 

below stated reasons, we affirm the Court of Appeals. 

Riddle filed a workers' compensation claim on May 9, 2013, following a 

work-related accident which caused him to lose range of motion and grip 

strength in his left hand. In the days surrounding the October 23, 2013 

evidentiary hearing, the parties engaged in ongoing settlement negotiations. 

Riddle was represented by Chris Evensen and Cross by Douglas U'Sellis. 

On October 24, 2013, Jason Swinney from U'Sellis's office, sent the 

following e-mail to Evensen: 

Chris, 

I received authority from [Cross] to offer Mr. Riddle a lump sum of 

$25,000 plus weekly benefits of $150 to be paid for 425 weeks. I 

know [the ALJ] is deciding the claim, but I think we can make a 

strong argument that Bilkey's rating is not accurate. Specifially, 

Dr. Bilkey rated Mr. Riddle for an impairment for the fifth digit 

despite Mr. Riddle's testimony that he does not even experience 

symptoms in the fifth digit. His overall rating is also higher than 

2 
the rating that would be appropriate if your client actually had 

amputations at the PIP joint for the third and forth digits. 

This settlement offer gives your guy a lump sum with the 

security of additional income to compensate him for any lost 

earning capacity. This also does not appear to be the type of injury 

that would require any type of ongoing medical treatment, so it 

seems mutually beneficial to buy the claim out in its entirety. If 

[the ALJ] awards benefits based on Dr. DuBou's 5% impairment, 

than your guy is going to be receiving $10 to $40 per week after 

deducting for fees and costs, so there is certainly plenty for him to 

lose. 

Let me know what your guy thinks. 

Evensen quickly responded with the following e-mail: 

Just so I understand the terms, is this with all rights open? Or is 

this for a complete dismissal? Or, something else? 

Swinney responded that the offer "would be for a complete dismissal." 

That same day, Evensen made a counter offer by the following e-mail: 

Counter demand: 

(1) $50,000.00 up front 

(2) $200.00 per week for 425 weeks 

(3) Complete dismissal of all future rights (assuming all medical 

expenses to date have been paid - I think they have, but don't 

want some bill popping up). 

Total Pay-out over time is $135,000.00 

If we proceed to the Judge, Mr. Riddle is going to get an award as 

follows: 

22% IMPAIRMENT WITH THE (3.4) FACTOR 

$406.56 X 22% x (1.15) x 3.4 = $349.72 per week for 425 weeks, 

which would be a total pay-out of $148,631.00 

Thus, my demand provides your client a reduction in the amount 

of indemnity benefits it will have to pay and it lets them off the 

hook for medical coverage. 

I expect a quick opinion, so please provide a response as soon as 

possible. 

Evensen did not receive the requested quick response to his counter 

demand because the next correspondence between the parties occurred by the 

following e-mail on November 22, 2013 written by U'Sellis: 

3 
Hi Chris 

We haven't yet received an e-mail today, but I am assuming that 

the [ALJ] has not yet issued a decision on this claim. My last offer 

had been for a lump sum of $25,000, plus $150 per week for 425 

weeks. Your last demand had been for a lump sum of $50,000, 

plus $200 per week for 425 weeks. I have spoken further with my 

client. They have authorized me to offer $40,000, plus $175 per 

week as a compromise. Please discuss that with your client as 

soon as possible, and let me know if she [sic] is agreeable. Thank 

you. 

Doug 

U'Sellis later wrote the following on a print out of that e-mail, "Past meds open 

through 11-22-13, all other rights waived." After that e-mail was sent, U'Sellis 

and Evensen had a telephone conversation in which Evensen stated he was 

going to recommend Riddle accept the settlement. Later that day, U'Sellis sent 

an e-mail to the ALJ asking that he delay the rendition of his decision because 

he thought a settlement could be reached. 

Also on November 22, 2013, Evensen sent U'Sellis and the Al.,J the 

following e-mail: 

Dear Judge Rudloff and Doug, 

I am writing to advise [Riddle] has accepted [Cross's] offer and this 

claim is settled. Therefore, there will not be a need for Judge 

Rudloff to issue an opinion. Form 110 to follow. 

Chris Evensen. 

Evensen then sent the following e-mail to U'Sellis: 

Dear Doug, 

I am writing to advise we accept your offer and this claim is settled. 

I attempted to 'reply to all' from your e-mail to the judge advising 

we are settled. However, I am working off of a cell phone and am 

not positive it went through. Accordingly, I request you e-mail the 

judge's office advising we are settled. 

4 
Unbeknownst to either party or their attorneys, the AU actually 

rendered his opinion and award on November 21, 2013, a day before 

U'Sellis's e-mail was sent. 

On November 25, 2013, Evensen sent U'Sellis the following e-mail: 

Dear Doug, 

I trust you received the two e-mails I sent out on Friday 11/22/13 

in which I (a) advised you we accepted your offer and the claim was 

settled and (b) 'Replied to all' in response to your e-mail to Judge 

Rudloff and his staff (cc'd to me) wherein you advised Judge 

Rudloff and his staff we were negotiating. In my responsive e-mail, 

I advised the Judge and you we had accepted your offer and the 

claim was settled. I informed a Form 110 settlement agreement 

would follow. 

Today's mail contained the Opinion. Obviously, it is my position 

we had all the material terms in writing (string of e-mails), a valid 

offer, and a valid acceptance before either of us were aware of the 

Judge's ruling. Therefore, I believe under controlling contract law 

and applicable precedent, Coalfield Tel. Co. v. Thompson, 113 

S.W.3d 178 (Ky. 2003), we have an enforceable agreement. I am 

attaching a draft of a Form 110 settlement agreement. I request 

you review the Form 110 and advise if any changes need to be 

made. If it meets with your approval, please advise and I suggest 

we file the Form 110 along with a Joint Motion to Vacate/Set aside 

the Opinion. 

Please let me know. 

Later that day, U'Sellis responded via the following e-mail: 

Chris, 

I haven't seen the decision. I agree that we had a valid settlement. 

What did he rule? 

Doug 

Evensen sent U'Sellis a completed Form 110 Agreement. The form stated 

that this was a compromise settlement of a disputed claim. The following 

monetary amounts were provided as consideration for the following waivers: 

Waiver or buyout of past medical benefits -- $5,000.00; Waiver or buyout of 

5 
future medical benefits -- $25,000.00; Waiver of vocational rehabilitation --

$5,000.00; Waiver of the right to reopen -- $5,000.00. The form also contained 

the following language: 

In an effort to resolve the claim, [Riddle] and [Cross] have each 

compromised their respective positions and have agreed to enter 

into this Settlement Agreement. [Riddle] is agreeing to accept 

$40,000.00 payable in a lump sum and $175.00 per week for 425 

weeks, beginning the date this Form 110 is approved, in exchange 

for a complete dismissal of his claim for indemnity benefits (TTD, 

PPD, PTD and/or death benefits), medical expenses/benefits, right 

to reopen and vocational rehabilitation, with prejudice. 

The Employer will pay Riddle and his attorney $40,000.00 in a 

lump sum and $175.00 per week for 425 weeks in exchange for a 

complete dismissal of this claim and all rights under the Workers' 

Compensation Act. 

U'Sellis sent an e-mail to Evensen on December 4, 2013, stating that he 

was no longer authorized by Cross to sign the Form 110. By this time, U'Sellis 

had reconsidered his position that the parties had an enforceable settlement 

because the agreement was partially negotiated and finalized after the ALJ's 

opinion and award had been rendered. Evenson filed a motion to enforce the 

settlement. ' The ALJ subsequently reopened proof, limiting the evidence to be 

"solely to the question of whether a meeting of the minds in regard to all terms 

of the alleged settlement arose, thus rendering the alleged settlement 

agreement enforceable." 

At a hearing held by the ALJ, U'Sellis provided the following answers to 

questions on why he changed his mind about the agreement's enforceability: 

Question: Now, on your e-mail of November 25th, where you 

indicated that you thought you had a valid settlement, 

at that time were you aware that a decision had been 

rendered? 

6 
U'Sellis: I was aware that a decision had been rendered. I 

didn't know when. 

Question: And after you had indicated that there was a valid 

agreement, what caused you to change your mind 

about having a valid agreement? 

U'Sellis: A couple of things; primarily the fact that the decision 

from the Judge was actually rendered before we 

started our settlement negotiations and then looking 

at the case law dealing with enforceability of 

settlements, I questioned whether we had enough 

detail, although admittedly we had all the detail of the 

payments, but whether under the case law if there was 

enough detail that there was a valid agreement, if you 

put aside the issue of the timing of the [ALJ's] 

decision. 

. . . 

I do have one additional item to bring up. In terms of 

[Evensen] having asked whether I had authority from 

my client, I did have the authority that I extended. 

Had my client known that the case had already been 

decided, I don't know if I would have had the same 

authority. I was dealing with - sort of, a conflict 

between an adjuster and a supervisor - a supervisor 

who didn't want to settle the case and an adjuster who 

did. Had they known that a decision had already been 

rendered that might have changed the authority I 

would have been extended. 

The AL1 entered an opinion and order sustaining the motion to enforce 

the settlement. Relying on Coalfield Tel. Co., 113 S.W.3d 178, the ALJ found 

that the parties had a meeting of the minds and reached an agreement to settle 

the case for a lump sum of $40,000 plus $175.00 per week for 425 weeks. 

Cross filed a petition for reconsideration arguing that the ALJ failed to address 

several of his arguments in favor of not enforcing the settlement. The petition 

was denied. 

7 
Cross appealed to the Board arguing that there was not a meeting of the 

minds between the parties because certain details of the settlement were not 

included in their correspondence and that the ALJ failed to make rulings on 

material terms of the agreement. Specifically, Cross argued that there was no 

ruling as to whether: medical benefits would remain open until the day the 

settlement was reached; the parties agreed that a complete dismissal of 

Riddle's claim would occur upon approval of the settlement; the parties' failure 

to set a starting date for the weekly payments invalidates the settlement; and. 

KRS 342.285(1) bars enforcement of the settlement. The Board found that KRS 

342.285(1) and the failure to select a starting date for the payments did not bar 

enforcement of the settlement. However, the Board agreed with Cross that the 

Al..J did not make a finding that the parties intended there to be a complete 

dismissal of Riddle's claim in exchange for the settlement. The Board noted 

that while the Form 110 listed monetary amounts to be given for the waiver of 

certain benefits and stated that the claim was to be dismissed upon settling, 

there was no finding that said terms were included in the correspondence. The 

Board also found the ALj did not determine whether the parties agreed to what 

period of time medical benefits were to remain open. Therefore, the Board 

vacated and remanded the ALJ's opinion and order for further fact finding. 

The Board's instructions on remand included: 

Accordingly, the March 20, 2014, Opinion and Order finding the 

parties reached a settlement agreement, sustaining Riddle's motion 

to enforce the settlement agreement, and overruling Cross's 

objection and response and the April 10, 2014, Opinion and Order 

on Reconsideration affirming the decision are VACATED. This 

matter is REMANDED to the ALJ for a determination of whether 

8 
the parties' correspondence memorializes all of the terms of the 

settlement agreement. If the ALJ determines the correspondence 

establishes the parties reached a full and complete agreement, he 

shall enter specific findings of fact setting forth the essential terms 

of the agreement. However, if the ALJ determines the parties did 

not reach a full and final resolution of all disputed issues, he shall 

provide the findings of fact in support of his decision. Further, he 

shall then deny Riddle's motion and reinstate the provisions of his 

November 21, 2013, Opinion and Order and rule upon Riddle's 

petition for reconsideration which he held in abeyance. 

Cross appealed and Riddle cross-appealed to the Court of Appeals who 

affirmed. This appeal followed. 

The Board's review in this matter was limited to determining whether the 

evidence is sufficient to support the ALJ's findings, or if the evidence compels a 

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992). 

Further, the function of the Court of Appeals is to "correct the 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." Id. at 687-88. Finally, review 

by this 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." Id. The ALJ, as fact-finder, has the sole 

discretion to judge the credibility of testimony and weight of evidence. 

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). 

Settlement agreements which have not been reduced to a final form can 

be found to be enforceable if correspondence between the parties indicate they 

agreed on the material terms. Hudson v. Cave Hill Cemetery, 331 S.W.3d 267 

9 
(Ky. 2011) (holding that correspondences between parties can constitute a valid 

agreement); Coalfield Tel. Co., 113 S.W.3d 178 (Ky. 2003) (holding that letters 

from both parties to a workers' compensation settlement negotiation are 

evidence that the parties reached mutual agreement); Skaggs v. Wood Mosaic 

Corp., 428 S.W.2d 617, 619 (Ky. 1968) (holding that KRS 342.265 does not 

require a settlement agreement to be in a final written form if there is written 

evidence of the terms of the agreement). 

I. KRS 342.285(1) DID NOT BIND THE PARTIES TO ADHERE TO 

THE ALJ'S ORIGINAL OPINION AND ORDER 

Cross first argues that the Board and Court of Appeals erred by finding 

KRS.342.285(1) did not bind the parties to adhere to the ALJ's original opinion 

and order. KRS 342.285(1) states: 

An award or order of the [ALJ] as provided in KRS 342.275, if 

petition for reconsideration is not filed as provided for in KRS 

342.281, shall be conclusive and binding as to all questions of fact, 

but either party may in accordance with administrative regulations 

promulgated by the commissioner appeal to the [Board] for review 

of the order or award. 

Cross argues that since the parties were unaware of the terms of the ALJ's 

opinion and order before they entered into a settlement, the opinion and order 

became binding upon them, and prevented the settlement agreement from 

being enforceable. We disagree. KRS 342.285(1) does not prevent the parties 

from entering into a settlement agreement after the ALJ has ruled. Cross 

acknowledges in his brief that workers' compensation claims may be settled 

after the entry of an ALJ's opinion and order. KRS 342.285(1) only stands for 

the proposition that a party must file a petition for reconsideration to later 

10 
appeal to the Board a factual finding made by the ALJ. This does not prohibit 

the parties from making,a motion to enforce a later negotiated settlement. The 

fact that the parties were unaware of the terms of the ALJ's ruling while 

negotiating goes to the merits of Cross's second argument, whether there was a 

mutual mistake of fact which prevents enforcement of the settlement. 

II. THERE IS INSUFFICIENT EVIDENCE AT THIS TIME TO SHOW 

A MUTUAL MISTAKE OF FACT OCCURRED 

Cross's second argument is that there was a mutual mistake of fact 

between the parties because the settlement negotiations were based on their 

common belief that the ALJ had not rendered an opinion and order. Cross 

argues that if the parties knew the Al.,J had rendered an opinion and order, one 

or both of them might have withdrawn from settlement negotiations. Cross 

analogizes this situation to the "barren cow" scenario as outlined in Sherwood 

v. Walker, 66 Mich. 568, 22 N.W.919, 923 (1887) (holding that a sale of a 

supposedly barren cow could be rescinded when it was discovered the cow was 

actually pregnant). Again, we must disagree. 

To prove that a mutual mistake of fact occurred, which caused the 

parties to not have a meeting of the minds, Cross must prove that: 1) the 

mistake was mutual, not unilateral; 2) the mutual mistake is proven in the 

record by clear and convincing evidence; and 3) the parties had actually agreed 

upon terms different from those expressed in the written instrument. See 

Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 704 (Ky. 2006). In this 

matter, while it is clear that both parties were mutually unaware of the ALJ's 

11 
opinion and order while negotiating the settlement, it cannot be said at this 

time that Cross is being held to terms different from those expressed in the 

correspondence between the parties. The lump sum amount, weekly payment, 

and duration of payments are all identical to what was negotiated for in the 

settlement. We do note, however, that this matter is being remanded to the 

ALO for further findings of fact regarding if the parties agreed how long medical 

benefits were to remain open and if the settlement was in exchange for a full 

waiver of Riddle's rights. If there is insufficient correspondence for the ALJ to 

make findings regarding those elements of the settlement agreement and those 

terms are material to the agreement, the Board has instructed the original 

opinion and award of the ALJ to be reinstated and the motion to enforce the 

settlement to be dismissed. We agree with the Board that remand for further 

fact finding is appropriate. 1 

III. THE FAILURE TO SET A DEFINITE DATE WHEN WEEKLY 

PAYMENTS ARE TO BEGIN DOES NOT RENDER THE 

SETTLEMENT AGREEMENT UNENFORCEABLE 

Cross's final argument is that the parties' failure to negotiate a starting 

date for the payment of the weekly benefits makes the settlement incomplete 

and unenforceable. The Board and Court of Appeals both held that the failure 

to select a date was inconsequential and not fatal to the settlement agreement. 

1 This matter does not fall within the above mentioned "barren cow" scenario because 

the parties in that case bargained for the cow based on an understanding that she 

could not have calves. In this matter, the parties knew the actual value of Riddle's 

workers' compensation claim could vary and their attempt to settle was a gamble of 

sorts. 

12 
Cross disagrees, arguing that if the starting date for the payments is set by the 

ALJ as the date of the injury, then it would be liable to pay past due benefits in 

addition to the lump sum amount already negotiated and thus would suffer 

greater liability. 

However, the date for commencement of Riddle's weekly payments was 

not a term material or essential to the parties' agreement. In fact, without a 

specific negotiated starting date between the parties it can be presumed the 

payments will start once the settlement is approved by the ALJ. On remand, 

we trust that the ALJ will review the record and determine if the parties came 

to an agreement on what date payments should commence. If there is no such 

correspondence we trust the ALJ will select a date without altering the 

agreement terms or adversely affecting the rights of the parties. 

IV. THE BOARD CORRECTLY REMANDED THE MATTER FOR 

FACT FINDING ON WHETHER THE PARTIES ENTERED INTO THE 

SETTLEMENT FOR A COMPLETE DISMISSAL OF THE CLAIM 

Riddle has cross appealed arguing that the Board erred by vacating and 

remanding this matter because by agreeing to enforce the settlement, the ALJ 

made an implied finding that the parties agreed the settlement would be 

entered into in exchange for a complete dismissal of the claim. Riddle argues 

that his tendered Form 110 stated that there would be a complete dismissal of 

the claim and that Cross never made a settlement offer that did not include 

that term. However, while the record may ultimately show that Riddle is 

correct, the fact remains that the ALJ did not make such a determination when 

originally adjudicating this claim. The matter needs to be remanded to the ALJ 

13 
for proper fact finding and a final determination of whether the parties 

negotiated for a complete dismissal of the claim in exchange for the settlement. 

For the above stated reasons, we affirm the decision of the Court of 

Appeals. 

All sitting. All concur. 

COUNSEL FOR APPELLANT/CROSS-APPELLEE, 

CROSS MAINTENANCE, LLC: 

Douglas Anthony U'Sellis 

COUNSEL FOR APPELLEE/CROSS-APPELLANT, 

MARK R. RIDDLE: 

Christopher P. Evensen 

14