WORKERS COMP: BASHAM V. RUSSELLVILLE WAREHOUSING (COA 11/17/2006)

BASHAM V. RUSSELLVILLE WAREHOUSING
WORKERS COMP:  Reopening for "mistake" per KRS 342.125(1)(c)
PUBLISHED: REVERSING; KNOPF
2006-CA-001224

The issue presented in this appeal is whether a post-award change of opinion by a medical expert constitutes a “mistake” sufficient to warrant re-opening of a claim under KRS 342.125(1)(c).

The Workers’ Compensation Board concluded that a prima facie case for reopening had been established by submission of evidence that a medical witness, whose testimony was relied upon in the original ruling of the Administrative Law Judge, had reversed his opinion as to causation based upon examination of autopsy data unavailable at the time the award was rendered.

COA reversed agreeing with the opinion of the dissenting board member Gardner that evidence of the expert’s recantation, submitted more than one year after the award had become final, did not constitute a “mistake” authorizing a de novo review of the issue of causation. Because the Board’s expansive construction of what constitutes “mistake” undermines the
doctrine of res judicata, COA reversed the WCB’s decision that the employer had set out a prima facie case for reopening.

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