WORKERS COMPENSATION: Admissions; Reopening and worsening condition
DATE RENDERED: 12/15/2006

Two issues are raised in this workers’ compensation claim: (1) whether a factual statement in a brief submitted to the ALJ can be deemed an admission; and (2) whether prior to filing a motion to reopen, the claimant is required to give notice of a worsening of a condition.

COA affirmed the Workers’ Compensation Board holding that admissions are not a part of a workers’ compensation proceeding and that notice is not required.

On January 18, 2005, Turpen filed a motion to reopen alleging a worsening of her condition and seeking increased benefits.  General Electric argued before the ALJ that Turpen’s psychological claim was barred because she failed to provide timely notice of her injury.  The ALJ agreed, stating that Turpen was first informed of her work-related depression in January 2004, but did not give notice of her condition until she filed her motion to amend in May 2005.

Denying the petition, the ALJ recited a portion of Turpen’s brief stating that the notice provision was triggered on January 5, 2004. That statement, the ALJ held, was a judicial admission requiring that the petition be denied.

The ALJ’s application of the rule of judicial admissions was error.

Although the Workers’ Compensation Board has adopted certain of the Kentucky Rules of Civil Procedure, Rule 36 entitled “Requests for Admission” is specifically excluded. See 803 KAR 25:010; Wadlington v. Sextet Mining Co., 878 S.W.2d 814 (Ky.App. 1994).

Instead, when facts are undisputed the parties are required to enter into agreed stipulations. 803 KAR 25:010. The parties did not stipulate when Turpen was first informed by a physician that her depression was work-related and, in fact, listed notice as a contested issue.

The Board properly found that the ALJ’s finding was clearly erroneous.

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