author: Opinion By Justice RICHTER.

text:
    Kelvin MALONE, Appellant, v. Roderick HAMPTON, Appellee.
    No. 05-04-01724-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 18, 2006.

      Richard K. Malone, Dallas, for Appellant.
    William Randall Ackerman, Ackerman & Savage, L.L.P., Dallas, for Appellee.
    Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion By Justice RICHTER.

Kelvin Malone appeals the trial court’s “amended order on October 22, 2004 hearing” imposing $800 in sanctions against him for filing a motion for new trial the court found to be “frivolous” and brought “for the purposes of harassment.” Malone asserts in one issue that the court’s order is void because the court had lost jurisdiction. In three additional issues, Malone asserts the court abused its discretion in sanctioning him because he had a right as a matter of law to file the motion, no evidence exists to support the imposition of sanctions, and the court incorrectly applied the procedures for sanctions. Agreeing with Malone that the court had lost jurisdiction, we conclude the order is void and dismiss this appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 485-86 (Tex.1995) (per curiam) (on appeal from trial court order entered after expiration of trial court’s plenary jurisdiction, court of appeals should declare order void and dismiss appeal).

Background

Malone represented Markita Evans-Hampton in a divorce proceeding against Roderick Hampton, but moved to withdraw as counsel after Evans-Hampton entered into an agreement with Hampton without Malone’s knowledge. Malone’s motion to withdraw was set for hearing August 16, 2004 at 9:00 a.m., the same day and time as Hampton’s motion for judgment.

The trial judge heard Malone’s motion first and allowed him to withdraw. Then, before the judge could hear Hampton’s motion for judgment, Malone moved for a continuance so that he could “file an intervention for [his] attorney’s fees.” Noting that Evans-Hampton had failed to return his calls, would not acknowledge his correspondence to her, and had failed to pay him $4,500 in fees, Malone argued that because his fees arose from the divorce and the court was familiar with the case, it would be “judicially efficient” for the court to hear the matter. The trial judge denied Malone’s request and, without hearing supporting evidence, granted Hampton’s motion for judgment and signed the final decree of divorce the day of the hearing. A few minutes later, Malone filed his petition in intervention. Neither the parties nor the court acted on Malone’s petition and, on September 15, 2004, the thirtieth day from judgment, Malone filed a motion for new trial. In the motion, which was set for hearing October 22, 2004, Malone noted his petition in intervention had not been heard and no evidence regarding the liabilities of the marital property community estate had been presented prior to the court’s entry of the decree. Malone also stated that, if he could not intervene and seek his fees in the divorce proceeding, he would have “no adequate remedy at law.”

Evans-Hampton did not respond to Malone’s motion, but on October 14, Hampton filed a written response seeking sanctions against Malone pursuant to Texas Rules of Civil Procedure 13 and 215 and chapters 9 and 10 of the Texas Civil Practice and Remedies Code. In support of his request for sanctions, Hampton argued that Malone, having withdrawn as counsel prior to entry of the decree, had no standing to bring the motion for new trial and further that the motion was “unsupportable in law, frivolous, groundless, and brought in bad faith” and for the “purpose of causing needless increase in the costs of litigation” and “harassment.” Hampton also argued that Malone’s statement in his motion that he had “no [other] adequate remedy at law” was an “attempt[] to perpetrate a fraud on and mislead the Court” because Malone could file an original lawsuit against Evans-Hampton to obtain a judgment for his attorney’s fees. For reasons unclear from the record, Malone was not served a copy of this response until October 20, two days before the hearing.

At the hearing, Malone moved to withdraw his motion for new trial and objected to proceeding on Hampton’s request for sanctions because of inadequate notice. In reply, Hampton reiterated the arguments made in his written response to Malone’s motion and offered into evidence a copy of an October 11 letter "he sent to Malone stating he found the motion “without merit and frivolous” and that, unless Malone “removed” his motion “from the docket” by October 13, he would “be left with no choice but to file a motion for sanctions.” Malone objected to the letter, but the court overruled his objection and, after hearing brief argument, granted Hampton’s request for sanctions.

Discussion

A trial court may impose sanctions after a judgment is entered so long as it retains plenary jurisdiction. Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.1996) (per curiam); In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (op. on reh’g). Generally, a court retains jurisdiction over a case for thirty days after entry of judgment. Tex.R. Crv. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.2000). This period is extended, however, upon the timely filing of a motion for new trial or motion to correct, modify, or reform the judgment. Lane Bank, 10 S.W.3d at 310. If one of these motions is filed by a party to the suit within thirty days from judgment, the court’s plenary power is extended up to an additional seventy-five days. Id. A non-party may not move for a new trial or file a post-judgment motion to extend the court’s plenary jurisdiction unless the non-party successfully intervenes. State & County Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224, 227 (Tex.App.-Austin 1996, no writ). A non-party successfully intervenes if he files a plea in intervention prior to entry of judgment and the court does not strike the plea on motion of a party. In re Barrett, 149 S.W.3d 275, 279 (Tex.App.-Tyler 2004, orig. proceeding). A non-party may also successfully intervene post-judgment provided that both the plea is filed and the judgment is set aside within thirty days from judgment. Id.; see also First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (orig.proceeding) (per curiam) (“[a] plea in intervention comes too late if filed after judgment and may not be considered unless and until the judgment has been set aside”). Judicial action taken after the expiration of the court’s jurisdiction is a nullity, and any orders signed outside the court’s plenary jurisdiction are void. Latty, 907 S.W.2d at 486.

Here, having signed the final decree of divorce on August 16, 2004, the trial court retained jurisdiction over the case until at least September 15, 2004, the thirtieth day from judgment. Tex.R. Civ. P. 329b(d). Although Evans-Hampton and Hampton, as parties to the divorce, could have extended this period up to an additional seventy-five days by timely filing a motion for new trial or to correct, modify, or reform the judgment, neither did. The only motion for new trial filed was that of Malone who filed as intervenor. However, to have successfully intervened and been effective in extending the court’s plenary jurisdiction, Malone had to have filed his petition in intervention prior to the entry of the divorce decree or had the decree set aside within thirty days from judgment. See Barrett, 149 S.W.3d at 279. Neither occurred. Accordingly, Malone’s motion for new trial did not extend the court’s plenary jurisdiction beyond September 15 and the court’s sanction order, entered in October, is void.

In reaching this conclusion, we necessarily reject Hampton’s arguments that the court’s sanction orders are not void. Specifically, Hampton argues that (1) Malone’s post-judgment plea in intervention was timely because it “did not attack the substance, validity, or enforceability of the underlying judgment itself’; (2) even if the court’s plenary jurisdiction had expired, the court retained jurisdiction to award sanctions because it was a “collateral matter”; and (3) declaring the ordér void “does not serve sound judicial policy.”

In making his first argument, that Malone’s plea in intervention was timely, Hampton relies on Breazeale v. Casteel, 4 S.W.3d 434 (Tex.App.-Austin 1999, pet. denied). Breazeale involved a turnover motion. Id. at 435. Lorie Breazeale filed the motion six years after obtaining a judgment against William Casteel and a year after Casteel obtained a judgment in an unrelated lawsuit against Crown Life Insurance Company. Id. Casteel, however, had earlier assigned portions of his interest in the Crown judgment to four other parties. Id. To protect their interests, each of these parties filed a plea in intervention in Breazeale’s action. Id. Breaz-eale moved to strike the pleas, arguing they were untimely because the original lawsuit had ended and the judgment had been obtained six years earlier. Id. The trial court overruled Breazeale’s motion and on appeal, the court of appeals affirmed that ruling. Id. at 435-36. In affirming the ruling, the court recognized the longstanding principle that intervention is not permitted after a final judgment has been entered. Id. at 436. The court noted, however, that because the very nature of a turnover proceeding requires a final judgment, it would be impossible to intervene before rendition of judgment. Id. at 437. The court concluded that because the intervenors did not seek to alter or nullify the judgment Breazeale had obtained against Casteel, but sought only to protect their own interests in Casteel’s lawsuit against Crown — the basis for Breazeale’s turnover motion — them interventions were not untimely. Id.

Breazeale is inapposite to the facts before us. Unlike the intervenors in Breazeale, and contrary to Hampton’s argument, Malone sought to alter the underlying judgment in this case by seeking a specific award of attorney’s fees for services rendered, a matter properly part of the divorce suit. Moreover, unlike the Breazeale intervenors whose basis for intervening stemmed not from Breazeale’s original suit against Casteele but from their assignment of portions of interest in Casteele’s judgment in an unrelated suit after Breazeale had obtained a judgment from Casteele, Malone’s basis for intervening stemmed from his representation in the divorce itself. We find no merit to Hampton’s reliance on Breaz-eale.

We also find no merit to Hampton’s argument that even if Malone’s plea in intervention was untimely, the court nonetheless retained jurisdiction to order sanctions. In making this argument, Hampton relies on Wolma v. Gonzalez, 822 S.W.2d 302, 302 (Tex.App.-San Antonio 1991, orig. proceeding). In Wolma, the trial court signed an order granting a motion for sanctions after its plenary jurisdiction had expired. Wolma, 822 S.W.2d at 303. The motion had been filed after the court signed the final judgment but before the court’s plenary jurisdiction expired. Id. Finding sanctions to be “collateral matters unrelated to the merits of the case out of which they arise” and relying on federal authorities, the San Antonio Court of Appeals affirmed the award. Id. However, in Jobe v. Lapidus, 874 S.W.2d 764 (Tex.App.-Dallas 1994, writ denied), this Court specifically declined to follow Wolma, and Hampton has provided us no argument, nor do we find any basis, to disavow Jobe and follow Wolma. Moreover, the facts in Wolma are distinguishable from the facts before us. Unlike the Wolma motion which was filed prior to the expiration of the court’s plenary power, the motion here was filed after the court’s plenary power had expired.

Finally, we find no merit to Hampton’s argument that declaring the order void “does not serve sound judicial policy.” Hampton notes that “[t]he filing of papers with trial courts and service of papers on litigants causes litigants additional and unnecessary expense along with the additional and unnecessary stress of having been served” and argues that “[i]f one takes [Malone’s] argument seriously, the necessary consequence would be that thirty-one days after the entry of any judgment, any person could file any frivolous and harassing document that he chose without the threat of sanction.” We disagree that a person choosing to file a document after the court’s plenary jurisdiction has expired simply to harass another party would be “the necessary consequence” of our concluding that in this case, the court’s order, having been signed after the expiration of its plenary jurisdiction, is void. Any document, other than a motion to enforce or clarify, filed after the expiration of the trial court’s plenary jurisdiction, would be a nullity as a suit ends when the trial court’s plenary power over the proceeding ends. See Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.1995); Jobe, 874 S.W.2d at 767. The very purpose of limiting a trial court’s plenary power over a proceeding is to foreclose the possibility of a suit continuing indefinitely even though a final judgment has been obtained.

We resolve Malone’s first issue in his favor, and because this issue is dispositive of the appeal, we do not address Malone’s other three issues. We conclude the “amended order on October 22, 2004 hearing” is void and dismiss the appeal.


source: Caselaw Access Project

author: Opinion by Justice WHITTINGTON.

license: Public Domain

text:
    In the Interest of L.N.M., M.N.M., A.J.M., A.P. M., T.M., Sa.M., D.S.M., A.F.M., and Se.M., Children.
    No. 05-05-00708-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 18, 2006.

      Celeste Delorge Flippen, Plano, Suzanne Hansen Wooten, McKinney, John J. Pfis-ter, Pfister & Associates, Frisco, for Appellant.
    Shawn Richards, Rockwall, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and BRIDGES.
   OPINION

Opinion by Justice WHITTINGTON.

In this case, we must determine whether the trial judge erred in denying Miriam and Ronald Miller’s March 7, 2005 bill of review. Because we conclude the trial judge did not err, we affirm the trial court’s April 7, 2005 order denying the Millers’ bill of review.

Background

The Millers are the parents of nine children who were the subjects of a termination suit filed by the Texas Department of Protective and Regulatory Services. In an order dated February 20, 2004, the trial judge dismissed three of the children (L.N.M., M.N.M., and A.J.M.) from the suit and terminated the Millers’ parental rights to A.P.M., Sa.M., and A.F.M. Regarding the remaining three children, T.M., D.S.M., and Se.M., the judge appointed the TDPRS permanent managing conservator. The judge found the Millers had “executed unrevoked or irrevocable affidavits of relinquishment of parental rights” as to T.M., D.S.M., and Se.M. and ordered the affidavits be held under seal by the court until August 2, 2004 at which time the therapists for the children and for the parents would issue a recommendation regarding the return of the children to the parents.

Following a hearing on September 1, 2004, the trial judge signed an order, dated September 16, 2004. The order states that, after examining the record and hearing evidence and argument of counsel, the trial judge terminated the Millers’ parental rights as to T.M., D.M., and Se.M. The order also states the parents and the attorney ad litem “were properly cited” but did not appear.

On March 7, 2005, the Millers filed an original petition for bill of review of the trial court’s September 16, 2004 order. In the petition, the Millers allege (i) they executed the relinquishment affidavits based on fraudulent statements made to them by TDPRS, and (ii) at the time of the September 16, 2004 termination order, no trials were set and neither the Millers nor the attorney ad litem had been given notice of the hearing. Attached to the bill of review are the Millers’ affidavits that support their bill-of-review claims.

On March 21, 2005, the trial judge held a hearing on the attorney ad litem’s motion to dismiss and request for temporary injunction. Throughout the hearing, counsel for TDPRS objected to the Millers’ attorney’s attempts to participate, arguing that the Millers “don’t have a voice in this motion to vacate” and that they “can’t be a party to a cause of action in which [their] parental rights were terminated.” The trial judge did not allow the Miller’s counsel to participate in the hearing. At the conclusion of the hearing, the judge stated she would read the entire file and

[t]he question as to whether I’ll hear or accept this bill of review will also be taken under advisement and heard at a future date if it is determined necessary after my findings and rulings on this other matter.

On April 7, 2005, the trial judge signed an order denying the Millers’ bill of review. This appeal ensued.

Jurisdiction

Initially, we must determine whether we have jurisdiction over this appeal. In their first issue, the Millers claim they are properly before this Court because their notice of appeal and motion to extend time to file notice of appeal were timely filed. The TDPRS and CASA of Collin County argue this Court lacks jurisdiction because section 109.002(a) of the Texas Family Code “provides the exclusive method by which an appeal involving the termination of parental rights may be filed, and that is by accelerated appeal.” See Tex. Fam.Code Ann. § 109.002(a) (Vernon 2002). The TDPRS and CASA argue the Millers had twenty days after the trial court’s September 16, 2004 order in which to appeal and that, because the Millers failed to file a notice of appeal by October 6, 2004, this Court lacks jurisdiction over this appeal. We disagree.

Section 109.002 provides:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination of the parent-child relationship is in issue.

Tex. Fam.Code Ann. § 109.002(a). Thus, if a party files a direct appeal of a parental rights termination order, the appeal is accelerated and follows the procedures for accelerated appeals set out in the Texas Rules of Appellate Procedure. See Tex. RApp. P. 26.1(b), 35.1(b), 38.6(a) & (b). However, contrary to the argument made by the TDPRS and CASA, nothing in section 109.002 states that an accelerated appeal is the exclusive method of appeal. In fact, the family code contemplates at least one other method of contesting a termination order. See Tex. Fam.Code Ann. § 161.211(a) (Vernon 2002) (“Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject to collateral or direct attack after the sixth month after the date the order was signed”) (emphasis added).

In this case, the Millers did not file a notice of appeal from the September 16, 2004 order. Rather, they filed a bill of review on March 7, 2005, within the six-month time frame contemplated by section 161.211. Because the March 7 bill of review was timely under section 161.211 of the family code, we conclude the TDPRS’s and CASA’s argument that the Millers’ exclusive remedy lay with fifing a timely accelerated appeal of the termination order lacks merit.

The TDPRS and CASA also argue that, even if we calculate the appellate timetable from the date of the April 7, 2005 order, the Millers nevertheless failed to timely appeal because the notice of appeal was due April 27, 2005, within twenty days of the date of the order, or with a timely filed motion to extend time, no later than May 12, 2005. Again, we disagree. The Millers filed a notice of appeal of the trial court’s denial of their bill of review, not of the termination order. Because the Millers are appealing the order denying their bill of review, the appeal is not an accelerated appeal under section 109.002 of the family code or the rules of appellate procedure. Thus, the notice of appeal was due May 7, 2005, thirty days after the date the judgment being appealed was filed. The Millers filed their notice of appeal and a timely motion to extend on May 23, 2005. See Tex.R.App. P. 4.1, 26.1, and 26.3. Because the Millers’ notice of appeal was timely under the rules of appellate procedure, we conclude we have jurisdiction over this appeal. We sustain the Millers’ first issue.

Bill of Review

In their second issue, the Millers contend the trial judge erred in denying their bill of review. Under this issue, the Millers claim they presented prima facie evidence of a meritorious defense and were entitled to a trial on the merits of the bill of review. The Millers also argue (i) they were entitled to notice of a preliminary hearing on whether they presented prima facie evidence of a meritorious defense, and (ii) the trial judge failed to conduct a preliminary hearing as required. For the reasons that follow, we disagree.

A bill of review complainant must file a petition alleging “factually and with particularity that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence.” Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex.1979). The complainant must also allege, “with particularity, sworn facts sufficient to constitute defense and, as a pretrial matter, present prima facie proof to support the contention.” Baker, 582 S.W.2d at 408. The determination of whether “a prima facie meritorious defense is made out” is a question of law for the trial judge. Baker, 582 S.W.2d at 408-09. The trial judge may hold a preliminary hearing to determine whether the bill-of-review complainant has presented prima facie proof of a meritorious defense. Boateng v. Trailblazer Health Enter., 171 S.W.3d 481, 488 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (citing Baker, 582 S.W.2d at 409) If a prima facie meritorious defense is shown, the judge then conducts a trial on the merits of the bill of review. Baker, 582 S.W.2d at 409. If, however, a “prima facie meritorious defense has not been made out, the proceeding terminates and the trial court shall dismiss the case.” Baker, 582 S.W.2d at 409.

If a trial judge holds a preliminary hearing, as authorized by Baker, to determine whether a prima facie meritorious defense has been shown, the possibility exists that the hearing may result in dismissal of the complainant’s case. See Baker, 582 S.W.2d at 409. Because the complainant’s case may be dismissed, it follows that the complainant must receive, at a minimum, notice of the hearing. See Harris v. Moore, 912 S.W.2d 860, 868 (Tex.App.-Austin 1995, no writ) (holding that trial court erred in dismissing bill of review when court gave no notice that scope of hearing had changed from temporary injunction hearing to bill-of-review preliminary hearing). However, nothing in Baker requires that the trial judge hold a hearing on the initial determination of whether the bill-of-review complainant has shown a pri-ma facie meritorious defense. See Baker, 582 S.W.2d at 408-09. It then follows that a bill-of-review complainant is not entitled to notice if the trial judge does not hold a preliminary hearing.

The Millers filed their bill of review March 7, 2005. The March 21, 2005 hearing was not a hearing on the bill of review; rather, it was a hearing on the attorney ad litem’s motion to dismiss and request for temporary injunction. The record shows the trial judge did not have a preliminary hearing to determine whether a prima fa-cie meritorious defense was made out. Thus, the Millers were not entitled to notice. We reject their first two arguments under their second issue.

We next address whether the trial judge erred in failing to find that the Millers presented prima facie evidence of a meritorious defense. The Millers state the termination of their parental rights was based on the affidavits of relinquishment signed by them. In their brief, the Millers claim their affidavits, attached to the bill of review, establish that they executed the relinquishment affidavits in reliance “on statements from CPS that [the relinquishment affidavits] would not be used and that they would be getting their children back.” However, each of the Millers’ affidavits attached in support of the bill states:

On January 30, 2004, at the bequest of the Texas Department of Protective and Regulatory Services (hereinafter “CPS”) and upon the advice of counsel I executed the relinquishment of parental rights which has been filed in [this cause]. At the time I executed this document I was informed by my attorney ... that Gretchen Fehrm (a representative of CPS) had indicated that the relinquishment would be “sealed” until such time as the therapists for the children and myself made a recommendation that it was not in the children’s best interest that they be returned to my care. This matter was subsequently scheduled for a hearing to get the therapists recommendations on August 15, 2004.
Additionally, I believe that CPS intentionally mislead us prior to signing the relinquishment documents. As previously stated, we were informed that the children would be returned to us if the therapist recommended their return. At the time that we signed the relinquishment documents and the Final Order we understood that Purnell Ryan was the therapist for the boys. It was not until later, at least one month, that I was informed that the boys had been switched from Purnell Ryan to Jeffrey Anderson. It is my understanding that at no time during their therapy with Jeffrey Anderson were the boys being “counseled” to prepare them for their return or possible return to our home. Suzanne Wooten later confirmed for me that Jeffrey Anderson was instructed to prepare the boys for termination.

Contrary to the statements made in their brief, the Millers’ affidavits do not state that TDPRS represented to them, or that they relied on any such statements, that “the relinquishment affidavits ... would not be used and that they would be getting their children back.” Rather, the Millers’ affidavits state it was the Millers’ understanding that the relinquishment affidavits would be sealed until the therapists made their recommendations. According to the affidavits, the children would be returned “if the therapist recommended their return.”

The trial court’s February 20, 2004 order contains similar language. In the order, the trial judge found the Millers had executed “unrevoked or irrevocable affidavits of relinquishment of parental rights” as to T.M., D.M., and Se.M. and ordered the relinquishment affidavits sealed until the therapists issued a recommendation regarding the return of the children. The judge ordered that (i) the affidavits be unsealed and accepted if the therapists did not mutually recommend a plan to return the children to the parents or (ii) the affidavits be destroyed and “orders consistent with the therapists’ recommendation regarding the return” of the children be entered if the therapists mutually recommended the return of the children.

The bill-of-review affidavits do not support the claims made in the Millers’ appellate brief, nor do they establish a prima facie meritorious defense. We further note that during the hearing on the attorney ad litem’s motion for temporary injunction, the trial judge heard undisputed evidence that the children’s therapist recommended they not be returned to the Millers. Because the Millers did not establish a prima facie meritorious defense, we cannot conclude the trial judge erred in denying their bill of review. We overrule the Millers’ second issue.

We affirm the trial court’s order denying the Millers’ bill of review.


text:
    Barbara HODGES, Appellant, v. SAGER CORPORATION; Hon. Richard Joiner, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2005-SC-0066-WC.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    As Modified on Denial of Rehearing Feb. 23, 2006.

      Jeffery Roberts, Murray, Counsel for Appellant.
    Carl Martin Brashear, Hoskins Law Offices, PLLC, Lexington, Counsel for Ap-pellee.
   OPINION OF THE COURT

This workers’ compensation appeal concerns the type of prima facie showing that KRS 342.125(l)(d) requires in order to grant a motion to reopen and order further proof to be taken. The Court of Appeals determined that the claimant failed to make an adequate prima fade showing; that it was erroneous to grant her motion and subsequently increase her award; and that the error was unfairly prejudicial to the employer because KRS 342.125(8) barred a subsequent motion to reopen. On that basis, the court reversed a two-to-one decision of the Workers’ Compensation Board (Board), which held that the Administrative Law Judge (ALJ) erred by granting the motion but that the error was harmless. We affirm.

The claimant injured her back while working for the defendant-employer on December 31, 1984. The parties later agreed to settle the claim for a lump sum that represented a 35% permanent partial disability, apportioned 2/3 to the employer and 1/3 to the Special Fund. On June 30, 1987, an ALJ approved the agreement, which described the nature of the claimant’s injury as being a herniated disc at L4 on the left.

On December 12, 2000, the claimant filed a pro-se motion to reopen in which she alleged a “change of disability shown by objective medical evidence.” Accompanying the motion were various documents, including the claimant’s affidavit and a copy of the settlement agreement. She averred that her condition had worsened, that she now experienced numbness in her left leg and foot, that her ankle and knee hurt more than previously and would “give way,” and that she anticipated “the Doctor will increase my disability rating when he examines me on my next appointment.” Appended to the motion to reopen was a motion to hold the case in abeyance. As grounds for this second motion, the claimant stated that her condition had worsened, that she continued to require medical attention and that she anticipated that her doctor would increase her disability rating based on her worsening condition.

A May 24, 1999, report from Dr. Davies indicated that a recent MRI revealed what appeared to be a small fragment of recurrent disc at L4-5 on the left as well as scarring that indented the cal sac at that level. Although there was less pain than on a previous visit, there was still some numbness and bilateral weakness of dorsi-flexion; positive straight leg raising on the left (about 30 degrees); unrestricted straight leg raising on the right; forward flexion of 20-30 degrees. Dr. Davies prescribed a dose pack and physical therapy, “to try to avoid repeat surgery if possible.”

Also submitted with the motion was a radiologist’s report, which indicated that a May 17, 1999, MRI revealed a disc fragment at L4-5. Another radiology report indicated that a lumbar spine x-ray revealed degenerative disc disease at L4-5. Finally, an emergency room admission report from April 17,1999, indicated that the claimant complained of low back pain and had a history of such pain since 1985.

On January 19, 2001, the employer filed an objection to the motion to reopen on the ground that it failed to make the ’prima facie showing required by KRS 342.125(l)(d). Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681 (Ky.1972). The employer asserted that there was no objective medical evidence the claimant’s condition had worsened since her award or that it resulted in a greater impairment or restrictions. On January 26, 2001, an ALJ amended a previous order abating the claim, granted the motion to reopen, and ordered the claim to be held in abeyance “until such time as the plaintiff attains maximum medical improvement and/or until one of the parties requests that it be removed.”

On March 25, 2002, the employer renewed its motion to dismiss, stating that the claimant had failed to submit any evidence although more than a year had passed since the claim was placed in abeyance. In the alternative, the employer requested an order requiring the claimant to show cause why her motion to reopen should not be dismissed for failure to submit objective medical evidence to support it. On April 15, 2002, the Chief ALJ gave the claimant 30 days to show cause why the motion should not be dismissed for failure to submit any objective evidence in support of her position. Again acting prose, the claimant filed numerous bills pertaining to medical treatment she received between 1999 and 2001 and ■ also some medical records pertaining to the treatment. The Chief ALJ noted the filing, removed the claim from abeyance on May 24, 2002, and overruled the motion to dismiss. A subsequent order scheduled the taking of further proof. Sometime thereafter, the claimant obtained counsel.

In resisting the claim for additional benefits, the employer asserted among other things that the motion to reopen failed to show the requisite change of condition and that reopening was barred by limitations. An ALJ determined, however, that the claimant experienced a post-settlement change of condition and an increased impairment due to her injury. Furthermore, the changes resulted in total disability and occurred before the period of limitations expired. See KRS 342.125(8).

Workers’ compensation is statutory. Although the principles of the finality of judgments apply to final workers’ compensation awards, KRS 342.125 permits an award to be amended prospectively due to certain post-award changes. Beale v. Faultless Hardware, 837 S.W.2d 893 (Ky.1992). A motion to reopen is the procedural device for doing so. As enacted effective December 12, 1996, KRS 342.125(1) permits an ALJ to reopen and review a final award. upon specified grounds, among which is:

(d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.

KRS 342.125(8) limits the period for reopening a claim that was decided before December 12, 1996, to within four years after December 12,1996.

In Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 370 (Ky.2004), the court noted that changes in the law between the date of injury and the date of a motion to reopen sometimes create inconsistencies between the grounds for granting the motion and the standards for awarding increased benefits when the merits of the claim for increased benefits are considered. See also, Peabody Coal Co. v. Gossett, 819 S.W.2d 33 (Ky.1991). Relying on KRS 342.125(6) and on Garrett Mining Co. v. Nye, 122 S.W.3d 513 (Ky.2003), the court explained that although the version of KRS 342.730 that was effective on the date of the injury governs the worker’s entitlement to additional benefits in a reopened claim, the amended version of KRS 342.125(l)(d) sets forth the grounds for reopening to which Stambaugh v. Cedar Creek Mining Co., supra, refers.

The Stambaugh court described what it envisioned as being “a reasonable prima facie preliminary showing of the existence of a substantial possibility of the presence of one or more of the prescribed conditions ” from KRS 342.125 before an adversary would be put to the expense of re-litigation. Id., 488 S.W.2d at 682 (emphasis added). It directed the fact-finder to “formulate reasonable standards for the form and content of such a preliminary showing.” Id. Moreover, it left to the fact-finder’s “reasonable discretion” to determine whether the showing in a particular case was sufficient to warrant the taking of evidence. Id. Nothing in the decision expressed the intent to require that the pri-ma facie showing be sufficient to support a finding for the movant on the merits of the claim for additional benefits in the event that the employer failed to go forward with evidence to the contrary. Nor does any subsequent amendment to KRS 342.125; therefore, the applicable standard for review is whether a decision to grant or deny a motion to reopen was an abuse of the ALJ’s discretion.

A worker’s right to increased benefits at reopening vests on the date that a motion to reopen is filed. ' Johnson v. Gans Furniture Industries, Inc., 114 S.W.3d 850, 855 (Ky.2003); Rex Coal Co. v. Campbell, 213 Ky. 636, 281 S.W. 1039 (1926). Therefore, when the premise for a motion to reopen is a post-award change of disability, the change must exist when the motion is filed and the motion must be supported by the prima facie showing that KRS 342.125(l)(d) specifies. The claimant filed her motion on December 12, 2000, the day on which the period of limitations expired. Under the circumstances, an abuse of discretion in granting the motion would have been prejudicial to the employer.

The claimant filed her motion to reopen on December 12, 2000. On January 18, 2001, the ALJ placed the matter in abeyance. On January 19, 2001, the employer filed its response to the motion, without objection. On January 26, 2001, the ALJ amended the previous order, granted the motion to reopen, and placed the reopened claim in abeyance. In the subsequent proceeding on the merits, the employer continued to assert that the claimant’s motion failed to make the neees-sary prima facie showing. Although she asserted, among other things, that the employer’s January 19, 2001, response to her motion was untimely, she failed to raise the argument subsequently when defending the award before the Board. Under the circumstance, it is not preserved for our review. Smith v. Dixie Fuel Co., 900 S.W.2d 609, 612-13 (Ky.1995) (error in workers’ compensation decision which has not been preserved before the Board may not be the subject of judicial review).

The claimant’s motion was premised on an allegation that she experienced a post-award change of disability as shown by objective medical evidence of a worsening of impairment. KRS 342.125(l)(d). Evidence of a worsening of impairment requires that there be a comparison of impairment at two points in time. The record before the ALJ on January 26, 2001, included medical evidence that addressed the claimant’s condition in May, 1999, when Dr. Davies began treating her. That evidence did not permit her impairment in 1987 to be compared with her impairment in December, 2000, when she filed her motion to reopen. Under the circumstances, it was an abuse of discretion to grant the motion. Furthermore, the decision was prejudicial to the employer because KRS 342.125(8) would have barred a subsequent motion to reopen.

The decision of the Court of Appeals is affirmed.

All concur.

      . It was later shown that Dr. Davies began treating the claimant in May, 1999.

      . The applicable version of KRS 342.125 listed change of conditions, mistake, and fraud as being the grounds for reopening.

      . In deciding that the ALJ erred in granting the motion to reopen but that the error was harmless, the Board relied upon an unpublished Supreme Court decision. The Court of Appeals later distinguished the decision, pointing out that the employer failed to raise a limitations argument. CR 76.28(4)(c) prohibits unpublished decisions from being “cited or used as authority in any other case in any court of this state.” For that reason, we have disregarded those portions of the parties’ briefs and the Court of Appeals' opinion that cite an unpublished decision or use it as authority.


text:
    Douglas W. LANE, (Deceased) and Priscilla J. Lane (Administratrix) Appellants, v. S & S TIRE, INC., # 15; Hon. J. Kevin King, Administrative Law Judge; and Workers’ Compensation Board Appellees
    No. 2005-SC-0141-WC.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    As Modified on Denial of Rehearing Feb. 23, 2006.

      Diana Beard Cowden, Lexington, Counsel for Appellant.
    Ronald J. Pohl, Picklesimer, Pohl, Kiser & Aubrey, P.S.C., Lexington, Counsel for Appellee.
   OPINION OF THE COURT

Douglas Lane sustained a work-related injury on July 28, 2000, and died of a self-inflicted gunshot wound in March, 2001. Priscilla Lane filed an application for benefits as his surviving spouse and the admin-istratrix of his estate. An Administrative Law Judge (ALJ) rejected her allegation that Douglas’s suicide was work-related and awarded Priscilla survivors’ benefits under KRS 342.730(3) rather than the death benefits she sought under KRS 342.750. The ALJ refused to increase the income benefit by a factor of 0.02 on the ground that Douglas had a GED diploma and also rejected a request for sanctions under KRS 342.040 and KRS 342.310 on the ground that the employer’s insurance carrier had a reasonable basis for refusing to pay temporary total disability (TTD) and medical benefits voluntarily. The Workers’ Compensation Board (Board) and the Court of Appeals affirmed, and we affirm. The claimant began living with Douglas Lane in September, 1999, shortly before his sixteen-year marriage ended in a tumultuous divorce. Douglas began working for the defendant-employer in April, 2000, as a mechanic. It required regular lifting of up to 75 pounds and long periods of reaching overhead. The claimant testified that on July 28, 2000, Douglas experienced a sharp pain in his right shoulder while hammering and that he notified his supervisor before taking the rest of the day off. She testified that he continued to work thereafter but that he experienced increasingly severe pain in his shoulder, neck, and back, and co-workers had to help him.

The claimant testified that Douglas’s health insurance had not become effective at the time of his injury because he had not been employed for six months. In early August she contacted the employer’s workers’ compensation carrier. She stated that she was told the claim would be investigated and that the carrier instructed her to submit Douglas’s medical bills to his supervisor. She stated that she did so, but they were not paid. She stated that she contacted the carrier again in October and was told that it had not received the bills. She stated that Douglas’s pain became so severe that he quit working altogether on November 13, 2000, and that the employer failed to file an injury report until then. At that point, the carrier’s representative began to investigate the claim. Douglas completed a questionnaire, and the claimant requested a report from Dr. Alvarado, who had provided the initial treatment after the injury.

Based on Dr. Alvarado’s notes and statements by Douglas’s supervisor regarding a pre-existing shoulder problem, the carrier denied the claim and notified Douglas on December 4, 2000. The claimant testified that she contacted Dr. Alvarado immediately about his failure to include the work-related incident in Douglas’s history and requested a corrected report, but his subsequent letter reiterated only that Douglas reported a 1995 accident. She testified that she also informed the carrier that the report was inaccurate but was told that the previous decision was final, a position that the carrier continued to maintain even after she submitted reports from Drs. Tutt and Kibler stating that the July 28, 2000, work-related incident had exacerbated preexisting neck and shoulder conditions.

The claimant testified that Douglas was in constant pain, had difficulty sleeping, and had difficulty bathing or dressing without assistance. By mid-February, 2001, he had used the entire month’s supply of prescription pain medication and had no income or health insurance to pay for more. He had also been ordered to appear in court on March 1 for non-payment of child support. She testified that when she was unable to rouse him that morning, she went to court on his behalf but was accused of being intoxicated and jailed overnight. That evening, Douglas’s daughter visited him and informed him of the claimant’s whereabouts. The claimant returned the next day and found him in bed, dead from a self-inflicted shotgun wound. She stated that amongst the sheets were Lortab and Klonopin pills that she had received for a work-related injury.

Dr. Alvarado’s treatment notes indicated that he first saw Douglas on August 24, 2000, complaining of back, shoulder, and head pain. He reported that he had been involved in a 1995 automobile accident and that a physician in Michigan had prescribed Fioricet, Vicodin, and Soma. Douglas had since moved to Kentucky and relied on various over-the-counter medications. Dr. Alvarado ordered MRI imaging of the thoracic spine and right shoulder. The notes did not mention a recent injury or Douglas’s work. As pertinent to this claim, Dr. Alvarado’s assessment on October 9, 2000, included: cervical degenerative disc disease, spinal canal stenosis, and partial rotator cuff tear. He prescribed Lortab and recommended orthopedic and neurosurgical evaluations, noting that Douglas had assured him that he would have insurance coverage at the end of the month and would see the specialists then. In a letter dated December 7, 2000, and addressed “To Whom It May Concern,” Dr. Alvarado reiterated the history he had noted on August 24, 2000. Based on that history, he did not believe that Douglas’s back, shoulder, and head pain were caused by a work-related injury. Dr. Alvarado also indicated that he had dismissed Douglas as a patient and that any farther statement would have to come either from him or his new physician.

Douglas first saw Dr. Tutt, a neurosurgeon, on December 28, 2000. He complained of neck and right shoulder pain and of numbness in his right arm since a work-related incident on July 28, 2000. Dr. Tutt noted significant cervical spondy-losis and possible mechanical problems in the shoulder for which he referred Douglas to Dr. Kibler. In a letter dated June 4, 2001, Dr. Tutt stated that the July, 28, 2000, incident caused a pre-existing cervical arthritic condition to become disabling. In a subsequent letter, he stated that the cervical condition caused a 15% impairment and that the claimant was unable to work when he last saw him. After reviewing Dr. Alvarado’s notes at the employer’s request, he stated that if the history Dr. Alvarado recorded was correct, his own opinions regarding the cause of Douglas’s cervical complaints would not be correct.

Dr. Kibler diagnosed a torn rotator cuff and concluded that the work-related incident had exacerbated a previous condition. He explained subsequently that he did not know precisely when “the full clinical expression” of the rotator cuff tear occurred but that “obviously there was something going on before his injury but the clinical extent was not as bad as after the injury.” In his opinion the resulting impairment was 4% and would have been 5% after surgery. As of January 9, 2001, he would have limited pushing and pulling and would have limited lifting to no more than 20 pounds regularly.

Among other things, the employer maintained that no work-related injury occurred on July 28, 2000; that Douglas failed to give timely notice of such an injury; and that his death was not work-related. An ALJ determined subsequently that Douglas did sustain the alleged neck and shoulder injuries, that he gave timely notice, and that his estate was entitled to his TTD benefits of $275.69 per week from November 14, 2000, until the date of his death. The ALJ concluded that Douglas would have been partially disabled had he not died. Income benefits of $157.14 per week were based on a 19% impairment and a finding that he would have lacked the physical capacity to return to the type of work he performed at the time of his injury. Noting the conflicting psychiatric testimony, the numerous factors that contributed to Douglas’s mental state, the inability of the experts to state with reasonable medical certainty the reason for suicide, and Dr. Weitzel’s testimony that it did not appear to be premeditated, the ALJ determined that it did not result from the work-related injury. As Douglas’s surviving spouse, the claimant received 40% of his partial disability benefit ($62.86 per week) for 425 weeks under KRS 342.730(3).

In a subsequent proceeding, the claimant requested the imposition of sanctions against the employer under KRS 342.040 and KRS 342.310 on the ground that it delayed unreasonably in paying TTD and medical benefits. The ALJ noted testimony by Tony Charles, the company’s manager, that Douglas informed him of preexisting shoulder problems when he was hired. He stated that Douglas’s file contained nothing to indicate that he reported a work-related injury in July, 2000. Convinced that the testimony together with Dr. Alvarado’s report and letter provided a reasonable basis for the employer to refuse to pay voluntary benefits and to defend against the claim, the ALJ denied the request. Finally, the ALJ determined that an argument that the claims adjuster failed to perform a timely or thorough investigation was a matter to be referred to the commissioner under KRS 342.267.

As amended effective December 12, 1996, KRS 342.0011(1) provides that an injury is a work-related traumatic event that is “the proximate cause producing a harmful change in the human organism.” All of the harmful changes in the human organism that result from a work-related injury and that are not attributable to an independent, intervening cause are com-pensable. See B0eech Creek Coal Co. v. Cox, 314 Ky. 743, 237 S.W.2d 56 (1951); Elizabethtown Sportswear v. Stice, 720 S.W.2d 732 (Ky.App.1986). The claimant alleged that Douglas’s injury caused a number of harmful changes. Among them was his death.

The claimant bears the burden of proving every element of a workers’ compensation claim, including causation. See Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky.2000). Even when a worker’s death occurs on the employer’s premises, the burden is on one who seeks compensation to establish that the death was connected to the individual’s work in order for it to be compensable. See Stapleton v. Fork Junction Coal Co., 247 S.W.2d 372 (Ky.1952); Harlan Collieries v. Shell, 239 S.W.2d 923 (Ky.1951); and Bluegrass Pastureland Dairies v. Meeker, 268 Ky. 722, 105 S.W.2d 611 (1937). KRS 342.0011(1) required the claimant to prove that the work-related traumatic event was the proximate cause of Douglas’s death in order for her to qualify for death benefits rather than survivors’ benefits.

KRS 342.610(3) generally bars compensation when a worker’s death results from a willful intention to injure or kill himself or another; however, a suicide is compensable under KRS 342.750 if a work-related injury caused the individual to develop a mental disorder that impaired his normal and rational judgment and caused him to commit suicide. Advance Aluminum v. Leslie, 869 S.W.2d 39, 41 (Ky.1994); Wells v. Harrell, 714 S.W.2d 498, 501-02 (Ky.App.1986). KRS 342.680 addresses the problem of proving work-relatedness in instances where the injured worker dies and, therefore, is unable to testify. It authorizes a rebuttable presumption that the death was work-related if there is prima facie evidence that the death was work-related and no substantial evidence to the contrary. As we explained recently in Williams v. White Castle Systems, Inc., 173 S.W.3d 231 (Ky.2005), the presumption shifts to the employer the burden of going forward with substantial evidence that the death was not work-related, but the burden of proving causation remains on the claimant. If the employer fails to meet its burden, the claimant is entitled to the presumption and prevails on the issue of causation. If the employer meets its burden, the claimant is not entitled to the presumption and must go forward with evidence persuasive enough to convince the AL J that the death was work-related.

Dr. Shraberg and Dr. Weitzel, both of whom are psychiatrists, interviewed the claimant and reviewed Douglas’s medical records. Testifying for the claimant, Dr. Shraberg stated that he did not know what Douglas’s mental state was at the time of his death. He noted that a number of problems contributed to the ■ suicide, including a difficult childhood, family relationship problems, an ongoing dispute over child support, and the effects of the injury. He thought that the claimant’s description of Douglas’s pain was consistent with the medical records and noted that her credibility was enhanced by the absence of any evidence that Douglas had been treated for mental problems before his injury. In his opinion, Douglas took an undetermined quantity of Lortab and Klonopin on the night before his death. He stated that depression was a possible side effect of those drugs and that the combination of pain and financial difficulties also would increase the risk for. depression. Furthermore, the risk of committing suicide would have been increased greatly by “the assumption that he was in severe pain and treatment was [being] withheld.” In his opinion, Douglas would not have committed suicide had he not sustained the work-related injury.

Dr. Weitzel reviewed depositions and reports from Douglas’s co-workers and from Dr. Shraberg, records from the carrier, treatment notes from Douglas’s medical providers, the claimant’s deposition and handwritten journal, and various records regarding Douglas’s divorce. His conclusion was that there was insufficient evidence of a causal link between the injury, by itself, and the subsequent suicide. Although he thought that Douglas warranted a diagnosis of depression, he noted that Douglas had not complained of suicidal or homicidal thoughts. Like Dr. Shraberg, he thought that many factors led to the suicide. In addition to pain from the injury, stressors included a lack of health care, the claimant’s incarceration, a perceived rejection and betrayal by Dr. Alvarado, and a history of abandonment in childhood. Dr. Weitzel thought that Douglas might have consumed some of the claimant’s medication which caused him to become delirious, confused, and impulsive, making the suicide an impulsive rather than a premeditated act. Nonetheless, his opinion was that “none of the informed speculation that [he] or other physicians could offer in this matter rises to the level of reasonable medical probability.”

When cross-examined by the claimant, Dr. Weitzel reiterated his opinion that Douglas committed suicide for a number of reasons and that eight to ten stressors contributed to causing it. Although Dr. Weitzel thought that the injury, inability to work, and financial pressures contributed to Douglas’s depression, he refused to state that they were substantial factors in causing it. He also noted that Douglas might well have had financial difficulties even had there been no injury. He thought that the numerous stressors, particularly the claimant’s incarceration, might have led to an impulsive act- of suicide. There were no signs that it was premeditated.

The ALJ determined that Douglas’s death was not work-related. Therefore, the claimant’s burden on appeal is to show that the favorable evidence was so overwhelming that it compelled a favorable finding as a matter of law or that the ALJ applied an incorrect legal standard when considering the evidence. Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky.1992); Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986). Focusing on Dr. Weitzel’s written report and relying on common law negligence cases and workers’ compensation cases that predate the 1996 amendments, she continues to maintain that the ALJ relied on Dr. Weitzel under the mistaken belief that “proximate cause” means “the only cause” rather than “a substantial cause.”

We are not convinced that the ALJ applied an incorrect standard to the evidence of causation. The standard for proving causation in a common-law. negligence action is not the standard applicable to workers’ compensation cases. Workers’ compensation is statutory, and the applicable version of KRS 342.0011(1) requires that work-related trauma must be “the proximate cause producing a harmful change in the human organism.” (emphasis added). Under the amended definition, a harmful change with multiple causes is work-related if work is the proximate cause producing it (ie., the direct cause rather than merely a contributing cause). See McNutt Const./First Gen. Services v. Scott, 40 S.W.3d 854, 859 (Ky.2001); compare Beth-Elkhorn Coal Corp. v. Dotson, 428 S.W.2d 32 (Ky.1968).

Dr. Weitzel made it clear that he thought it impossible to be reasonably certain what had caused the suicide. Even Dr. Shraberg testified that he did not know what Douglas’s mental state was at the time of his death and acknowledged that a number of factors probably contributed to it. There was substantial evidence from which the ALJ could reasonably conclude that the work-related traumatic event and its subsequent effects were not the proximate cause producing Douglas’s impaired judgment and consequent suicide, and the evidence in the claimant’s favor was not so overwhelming as to compel a finding to the contrary. Therefore, the claimant failed to establish that she was entitled to death benefits under KRS 342.750.

As amended effective July 15, 2000, KRS 342.730(l)(e)3 permits an income benefit to be enhanced based on age and education. It provides, in pertinent part, as follows:

Recognizing that limited education and advancing age impact an employee’s post-injury earning capacity, an education and age factor, when applicable, shall be added to the income benefit multiplier set forth in paragraph (c)l of this subsection. If at the time of injury, the employee has less than eight (8) years of formal education, the multiplier shall be increased by four-tenths (0.4); if the employee had less than twelve (12) years of education or a high school General Educational Development diploma, the multiplier shall be increased by two-tenths (0.2).

The claimant asserts that the ALJ erred by refusing to enhance Douglas’s award by two-tenths because although he had a GED, he had only nine years of education. She argues that the statute permits the enhancement if the injured worker has less than 12 years of education, has a GED, or has both. In contrast, the ALJ, Board, and Court of Appeals were convinced that the words “had less than” were meant to be applied to both of the phrases that followed, meaning that a worker entitled to the enhancement must have less than 12 years of education or less than a GED. Although we acknowledge that either interpretation is grammatically correct, we are convinced that the legislature is not likely to have intended to equate a GED with less than 12 years of education. Mindful that a GED certificate is widely-viewed as being the equivalent of a twelfth-grade education, we agree with the Court of Appeals’interpretation.

Based on Dr. Alvarado’s report and letter, which indicated that Douglas attributed his neck and shoulder symptoms to a 1995 automobile accident and failed to mention a work-related injury, the employer’s carrier refused to pay voluntary TTD or medical benefits. KRS 342.267 permits the commissioner of the Department of Workers’ Claims to penalize an insurer or self-insurer for a bad-faith refusal to settle a workers’ compensation, claim or to pay voluntary benefits. The Travelers Indemnity Company v. Reker, 100 S.W.3d 756 (Ky.2003). Although KRS 342.267 does not provide a civil remedy for a worker subjected to such conduct, KRS Chapter 342 does provide remedies within the workers’ compensation litigation. Id. KRS 342.040 imposes an 18% interest rate rather than the usual 12% if a delay, denial, or termination of income benefits was “without reasonable foundation.” KRS 342.310(1) permits costs and attorney fees to be assessed against a party who has “brought, prosecuted, or defended a claim without reasonable ground.” The claimant sought and was denied those remedies. Appealing, she asserts that the insurer would have known that the claim was legitimate had it conducted a reasonable investigation and that its refusal to pay voluntary benefits was unreasonable in light of the evidence that ultimately convinced the ALJ to award them.

Upon notice of a work-related injury, 803 KAR 25:240, § 4 requires an insurer to “diligently investigate a claim for facts warranting the extension or denial of benefits.” KRS 342.267 empowers the commissioner (now, the director) to fine an insurance carrier for a failure to investigate that is so unreasonable as to constitute an unfair claims settlement practice under Chapter 342 or under KRS 304.12-230. The Board and the Court of Appeals correctly noted, however, that whether the carrier conducted a diligent investigation is also a factor affecting the reasonableness of its decision to deny benefits or defend a claim. Nonetheless, a more thorough investigation in the present case would not have changed the fact that Dr. Alvarado’s notes from Douglas’s first visit on August 24, 2000, did not mention a July 28, 2000, work-related injury but did refer to a 1995 automobile accident. Nor would it have changed Dr. Alvarado’s refusal to amend his notes when the claimant contacted him. The first medical evidence that Douglas attributed his present neck and shoulder symptoms to a work-related accident was found in Dr. Tutt’s notes from December 28, 2000, after the carrier denied coverage. Under circumstances where another ALJ might have concluded reasonably that a work-related injury was not what caused Douglas’s neck and shoulder problems, it could not be said that the carrier lacked reasonable grounds to refuse to pay voluntary benefits and to defend the claim.

The decision of the Court of Appeals is affirmed.

All concur.

      . Workers’ Compensation claims are administered presently by the Office of Workers’ Claims, the head of which is the executive director.


author: Justice ROACH.

text:
    DOUBLE L CONSTRUCTION, INC. Appellant, v. Earl D. MITCHELL; Hon. Roger D. Riggs, Administrative Law Judge; and Workers’ Compensation Board Appellees
    No. 2005-SC-0036-WC.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    Rehearing Denied Feb. 23, 2006.

      Douglas A. U’Sellis, U’Sellis & Kitchen, PSC, Louisville, Counsel for Appellant.
    Robert L. Catlett, Jr., Louisville, Counsel for Appellee.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) determined that an injury to the claimant’s eye while performing carpentry resulted in a period of temporary total disability (TTD) that ended when he was released to return to his usual job as a carpenter. The Workers’ Compensation Board (Board) reversed the award on the ground that the claimant continued performing his concurrent, part-time janitorial job without interruption. Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky.2001). Convinced that the Board misconstrued Robertson, the Court of Appeals determined that Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky.2000), controlled and reinstated the award. Although we agree that the claimant was entitled to TTD based on his temporary inability to perform carpentry and affirm in that regard, our reasoning is different.

The claimant was born in 1951 and was a high school graduate. He had spent his entire career as a carpenter in the construction business. In 2001, he began working for the defendant-employer. His injury occurred on January 6, 2003, when a nail struck by a co-worker flew up and hit the claimant in his left eye, lacerating the cornea and causing various complications. The claimant underwent three surgeries, the last of which was the implantation of a permanent acrylic intraocular lens. His physician prescribed corrective lenses and released him to return to work on August 18, 2003.

In addition to his full-time work as a carpenter, the claimant worked fifteen hours per week as a janitor. He had done so for Sky-Brite Corp. and its predecessor since 1995. The job involved emptying trash cans throughout Kroger’s corporate headquarters. He explained that he took the second job to be certain that he could pay child support because construction work is seasonal. He testified that child support was deducted from his earnings with Sky-Brite; therefore, he did not take time off from the job when he injured his eye.

Medical evidence indicated that Dr. Karp performed the two initial surgeries and released the claimant to return to light-duty work on March 3, 2003. Concerned about the stitches that remained in his eye, the lifting required in the carpentry job, and effects of exposure to dust, the claimant did not return to carpentry. Dr. Karp’s records indicate that the claimant telephoned on the following day to report that he had sought treatment elsewhere.

On March 4, 2003, the claimant sought treatment with Dr. Meyer, who noted that although the eye appeared to be healing well, some sutures were loose and some of the knots were exposed. He removed the loose sutures and over several weeks removed those that remained. On March 25, he took the claimant off work altogether. He performed the lens implant on May 5. When deposed on June 18, he stated that he thought the claimant had reached MMI, but he did not release him to return to work until August 18, 2003.

Dr. Meyer assigned a 8% AMA impairment, attributing a 1% impairment to loss of vision and a 7% impairment to difficulty with loss of contrast sensitivity, glare, and difficulty with vision in certain lighting. Like Dr. Meyer, Dr. Eiferman assigned a 1% AMA impairment for loss of vision. He added an additional 3% impairment for other factors such as those described by Dr. Meyer.

The parties stipulated that the claimant’s average weekly wage from carpentry was $536.00. Taking into account concurrent earnings of $107.31 per week for the janitorial work, they stipulated that his combined average weekly wage was $643.31. They also stipulated that the employer paid voluntary TTD benefits at the rate of $357.35 per week from January 8, 2003, through March 3, 2003, for a total of $2,807.75. Among the contested issues was whether the employer overpaid or underpaid TTD.

When testifying at the hearing on September 25, 2003, the claimant stated that he had not returned to carpentry. He explained that he had refrained from doing so “to let my eye have plenty of time to heal” and that he continued to have increased sensitivity to sunlight, cold temperatures, and dust. He stated that the employer paid TTD benefits in the amount of $357.35 “every Friday afternoon” until March 3, 2003. He also stated that it made two subsequent benefit payments, on March 14 and 21, 2003, but that the total payments were not more than $2,800.00.

The employer asserted that it did not owe additional TTD. Furthermore, it relied on Robertson v. United Parcel Service, supra, in asserting that the claimant was not entitled to the TTD he received because he had worked continuously for Sky-Brite after his injury. It argued that Robertson stands for the principle that Chapter 342 views concurrent employments as though they are parts of one job. Thus, a worker whose injury temporarily prevents him from working a full day has only a temporary partial disability, which is not compensable. On that basis, the employer asserted that it was entitled to credit its voluntary TTD payments against the claimant’s permanent partial disability award.

The ALJ acknowledged that the claimant continued to perform janitorial work despite his injury but noted that Dr. Meyer did not release him to return to work until August 18, 2003. Concluding that the injury prevented him from performing his usual work as a construction carpenter until that time, the ALJ awarded TTD at the rate of $428.87 per week from the date of the injury until August 18, 2003, followed by permanent income benefits that were based on the 3% impairment Dr. Eiferman assigned. In a petition for reconsideration, the claimant pointed out that Dr. Eiferman had actually assigned a 4% impairment, consequently the ALJ granted the petition and amended the award. ■

Until December 12, 1996, Chapter 342 did not define temporary total disability. Addressing the absence of a statutory definition, the court explained in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202 (Ky.App.1993), that temporary benefits are appropriate until the worker’s condition has stabilized and is not expected to improve with further treatment. At that point, any fingering disability may be viewed as being permanent. Noting that Kentucky did not recognize the concept of temporary partial disability,'the court determined that TTD benefits are appropriate until further medical treatment will not improve the worker’s condition or until the worker is able to return to some type of work.

The employer bases its arguments on two statutes. As enacted effective December 12, 1996, KRS 342.0011(ll)(a) governs the duration of a TTD award. It provides as follows:

“Temporary total disability” means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.

KRS 342.140(5) provides that a worker’s earnings from a concurrent employment of which the employer has knowledge “shall be considered as if earned from the employer liable for compensation.” As such, they are included when determining the average weekly wage for the purpose of awarding income benefits.

In Central Kentucky Steel v. Wise, supra, the court was called upon to interpret KRS 342.0011(ll)(a) when determining whether the duration of a steelworker’s TTD award was proper under the evidence. The employer asserted that TTD benefits should have terminated when Wise was released to return to work with a five-pound lifting restriction. Rejecting the argument, the court determined that “[i]t would not be reasonable to terminate the benefits of an employee when he was released to perform minimal work but not the type that is customary or that he was performing at the time of his injury.” Id. at 659. Noting that the ALJ awarded TTD until Wise returned to work and that he did not reach MMI until about a month later, the court determined that substantial evidence supported the award. Id.

Robertson v. United Parcel Service, supra, involved TTD in the context of concurrent employments. Robertson’s injury occurred while working for UPS. It caused him to miss only two days’ work for UPS but to be unable to perform masonry work for about three months. The ALJ awarded medical expenses for a temporary flareup of symptoms from Robertson’s non-work-related back condition but no TTD or permanent income benefits. Among other things, Robertson argued on appeal that he had not reached MMI and that he was entitled to TTD benefits based on his average weekly wage in the masonry job. Although the court noted that KRS 342.730(1) authorized benefits for temporary total disability but not for temporary partial disability, it determined only that the evidence did not compel a TTD award. Id., 64 S.W.3d at 287.

In the present case, the claimant was injured while working as a construction carpenter. The ALJ acknowledged that the claimant continued to perform janitorial work without interruption. Noting that Dr. Meyer thought he had reached MMI by June 18, 2003, but did not release him to return to work until August 18, 2003, the ALJ awarded TTD from the date of injury until August 18, 2003, giving the employer credit for “for any of such benefits heretofore paid.”

As defined by KRS 342.0011(ll)(a), there are two requirements for TTD: 1.) that the worker must not have reached MMI; and 2.) that the worker must not have reached a level of improvement that would permit a return to employment. See Magellan Behavioral Health v. Helms, 140 S.W.3d 579, 581 (Ky.App.2004). In the present case, the employer has made an “all or nothing” argument that is based entirely on the second requirement. Yet, implicit in the Central Kentucky Steel v. Wise, supra, decision is that, unlike the definition of permanent total disability, the definition of TTD does not require a temporary inability to perform “any type of work.” See KRS 342.0011(ll)(c).

Two aspects of the philosophy underlying workers’ compensation acts are: 1.) that injured workers are to be compensated for a loss of the ability to earn a living without regard to fault; and 2.) that the cost of an industrial injury should be borne by the employment in which the injury occurred, thereby encouraging the employer to promote workplace safety. The Board was not convinced that factual differences between Robertson v. UPS, supra, and the present case were significant under KRS 342.0011(11). Although that view is not without logic, we are convinced that it is too restrictive when viewed in light of Central Kentucky Steel v. Wise, supra. When reinstating the claimant’s award, the Court of Appeals reasoned that a worker should not be ineligible for TTD simply because his restrictions enabled him to perform menial work if they prevented him from returning to his “primary, pre-injury employment,” later equating it to his “normal and customary employment.” We have concluded, however, that Wise speaks only to TTD regarding the employment in which the injury occurred and makes no reference to menial work. Furthermore, Robertson makes no distinction based on primary or secondary employment.

Central Kentucky Steel v. Wise, supra, stands for the principle that if a worker has not reached MMI, a release to perform minimal work rather than “the type that is customary or that he was performing at the time of his injury” does not constitute “a level of improvement that would permit a return to employment” for the purposes of KRS 342.0011(ll)(a). 19 S.W.3d at 659. The case did not involve concurrent employments and referred only to Wise’s job as a steelworker. We have concluded, therefore, that when the decision is applied to a case in which a worker is injured in one concurrent employment but is unable temporarily to perform another, both the customary type of work and the work the individual was performing at the time of the injury refer to work performed in the employment in which the injury occurred. We reach this conclusion, in part, because we are convinced that a worker whose injury renders him temporarily unable to perform the work in which the injury occurred should not be penalized for performing what work he is able to do.. Nor are we convinced that his employer should be absolved from liability for TTD benefits. The claimant’s injury occurred in his employment as a construction carpenter; therefore, his customary work for , the purposes of KRS 342.0011(ll)(a) was construction carpentry, including the duties that he was performing at the time he was injured. It is undisputed that the injury rendered him unable temporarily to perform his customary work until August 18, 2003; therefore, he did not reach a level of improvement that would permit a return to employment until August 18, 2003.

The purpose for awarding income benefits such as TTD is to compensate workers for income that is lost due to an injury, thereby enabling them to provide the necessities of life for themselves and their dependents. Consistent with the purpose of the benefit and workers’ compensation philosophy, income benefits are paid by the employer in whose employment the injury occurs. KRS 342.730 and KRS 342.140 base the benefit on the worker’s earnings in the employment and in any concurrent employment of which the employer has knowledge.

Since December 12, 1996, permanent disability awards have been based on findings of AMA impairment or of impairment together with a complete inability to perform any type of work. KRS 342.0011(ll)(b) and (c); KRS 342.730(l)(a) and (b). Therefore, an injury that causes a permanent disability regarding the job in which it occurred necessarily causes a permanent disability regarding a concurrent job as well. KRS 342.140(5) takes this into account by compensating a worker for a reductiofi in the ability to perform both the job in which the injury occurred and a concurrent job.

As defined in KRS 342.0011(ll)(a), temporary total disability is not based on a finding of AMA impairment. Nor, as determined in Central Kentucky Steel v. Wise, supra, is it based on an inability to perform any type of work. As the present case illustrates, an injury causing only a temporary loss of the worker’s ability to perform the job in which it occurred does not necessarily affect the individual’s ability to perform a concurrent job. When it does not, KRS 342.140(5) is inapplicable.

Having considered the relevant statutes, we conclude that a worker is entitled to TTD benefits if a work-related injury results in a temporary inability to perform the job in which it occurred. If the injury also causes an inability to perform a concurrent job of which the employer has knowledge, income benefits are based on the wages from both employments by operation of KRS 342.140(5). If the injury does not cause an inability to perform a concurrent job, KRS 342.140(5) is inapplicable and income benefits are based solely on the wages from the job in which the injury occurred. In contrast, if a work-related injury does not prevent the worker from performing the job in which it occurred, the worker is not entitled to TTD despite an inability to perform a concurrent job. Robertson v. UPS, supra.

The decision to award TTD until the claimant was able to return to construction carpentry was supported by both lay and medical evidence and was consistent with our interpretation of the relevant statutes. Furthermore, the employer has failed to show that the findings upon which it was based were unreasonable. Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986). Although the ALJ appears to have awarded TTD on the basis of the claimant’s combined earnings, any error in that regard is not preserved for our review.

The decision of the Court of Appeals is affirmed.

LAMBERT, C.J.; and COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., concur.

ROACH, J., dissents by separate opinion.

Dissenting opinion by

Justice ROACH.

The Workers’ Compensation Board was correct and properly construed KRS 342.0011(ll)(a) and KRS 342.140(5) in light of Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky.2000), and Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky.2001). Therefore, I would reverse.

Workers’ compensation is statutory. KRS 342.0011(ll)(a) provides that:

“Temporary total disability” means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.

KRS 342.140(5) is mandatory and makes no exceptions. It provides:

When the employee is working under concurrent contracts with two (2) or more employers and the defendant employer has knowledge of the employment prior to the injury, his wages from all the employers shall be considered as if earned from the employer liable for compensation.

Nothing in either statute implies a legislative intent to authorize temporary total disability (TTD) benefits based on a worker’s inability to perform one of two concurrent jobs. An individual who continues to perform one of two concurrent jobs after an injury clearly is able to “return to employment.” The majority opinion is simply awarding benefits for temporary partial disability, which are not available under KRS Chapter 342. Robertson, 64 S.W.3d at 287.

The majority relies upon Wise for the principle that if a worker has not reached maximum medical improvement, TTD is not precluded by a release to return to something less than the individual’s customary work or the work performed at the time of the injury. What the majority overlooks is that Wise did not involve concurrent employments and that the injured worker did not work during the disputed period. In the present ease, as in Robertson, the claimant’s injury did not prevent him from continuing to perform one of his concurrent jobs. Therefore, Appellee Mitchell was not entitled to TTD because his post-injury condition permitted a return to employment. The majority has chosen to ignore the clear language of KRS 342.140(5) and, in doing so, has effectively amended the statute without a vote of the General Assembly. I respectfully dissent.

      . When reciting the evidence, the ALJ failed to mention the claimant’s testimony that the employer made two additional payments after March 3, 2003, but that he received no more than a total of $2,800.00. In any event, the employer did not file a petition for reconsideration or request any specific findings in that regard. Nor has it asserted that it is entitled to credit for paying TTD that exceeded the parties’ stipulation.

      . In the present case, the employer paid TTD benefits of $357.35 per week based upon the claimant’s earnings in his carpentry job. Yet, when contesting his entitlement to TTD, the employer made an "all or nothing argument” and failed to assert that if he were entitled to TTD, his average weekly wage must be limited to his earnings from carpentry. Although the TTD award of $428.87 per week appears to have been based upon his earnings from both of his jobs, the employer failed to petition for reconsideration or to assert that there was a patent error in calculating the benefit. Under the circumstances, it waived any assertion at this time that the ALJ erred by including the janitorial earnings when calculating the benefit.


author: SCOTT, Justice.

text:
    Dejuan STRATTON, Administrator for the Estate of Sabrina Felts, Appellant, v. COMMONWEALTH of Kentucky, Cabinet for Families and Children, Appellee.
    No. 2003-SC-000580-DG.
    Supreme Court of Kentucky.
    Jan. 19, 2006.

      Carl D. Frederick, C. Shawn Fox, Christopher A. Bates, Paul J. Hershberg, Seiller & Handmaker, LLP, Louisville, Counsel for Appellant.
    Johann F. Herklotz, Brian C. Baugh, Cabinet for Health and Family Services, OfBce of Legal Services, Frankfort, Counsel for Appellee.
   SCOTT, Justice.

This case comes to us on discretionary review of the Court of Appeals’ opinion, which held the actions taken by agents of the Cabinet for Families and Children (“Cabinet”) were discretionary in nature, and thus, rendered the Cabinet immune from claims of negligence under the Board of Claims Act. We originally granted review of this case to hopefully provide further guidance on the issue of governmental immunity, but after further review of the record, we have determined the actions in this case were simply discretionary and therefore, there was no waiver of immunity, and the decision of the Court of Appeals is affirmed.

I. Facts

Sabrina Destiny Felts Stratton died May 21,1994, from injuries inflicted by her mother’s live-in boyfriend, Sherman De-juan Davis. Davis has been found guilty of Murder and Criminal Abuse in the First Degree by the Jefferson Circuit Court.

The Cabinet for Families and Children was first notified of possible physical abuse of the deceased minor by her maternal grandmother, Deborah Thompson, on February 11, 1994. Ms. Thompson called Child Protective Services (“CPS”), a division of the Cabinet, stating Sabrina had injuries that suggested physical abuse.

That same day, Sabrina and her grandmother were interviewed by Amy Lombard, a case worker for CPS, and Detective Randy Meurer. CPS also investigated by speaking with Melissa Felts, Sabrina’s mother, and Davis. Ms. Felts tried to explain away Sabrina’s injuries by saying she frequently fell. When Davis was interviewed by Lorn-’ bard, he denied any allegations of abuse. The doctor who examined Sabrina, however, observed her injuries were too severe to have resulted from innocent falls.

Based on her investigation, Lombard was able to substantiate the allegations of abuse, but could not ascertain the identity of the perpetrator. On February 16, 1994, Lombard filed a petition with the Jefferson Family Court, alleging physical abuse of the child, naming Davis and Melissa Felts, Sabrina’s mother, as the alleged perpetrators. The case was set for an emergency hearing on February 16,1994.

The hearing was attended by Felts, Davis, Sabrina’s natural father, Dejuan Stratton (Appellant herein), both sets of grandparents, the prosecutor, and Sabrina’s guardian ad litem. At the hearing, Melissa Felts and Mr. Stratton agreed that he should be granted temporary custody of Sabrina while Ms. Felts attended court ordered parenting classes.

Having completed her investigation and secured a temporary change of custody, Lombard then transferred the case to what was known as an “ongoing” case worker. The “ongoing” case worker in Sabrina’s case was Jeff Murphy. Mr. Murphy testified that his role was not to perform further investigation, but to ensure Ms. Felts attended the mandatory parenting classes, and to “set up services for the family.”

When the parties returned to court on March 23, 1994, Sabrina’s mother alleged it was Ms. Thompson who was hitting the child, which was mimicked in the statement of Sabrina’s paternal grandmother to Mr. Murphy. Thompson was thereafter limited to supervised visitation once a month.

Mr. Murphy contacted Ms. Felts by phone several times to follow up on the case and met with Stratton and Sabrina in his office on April 4, 1994, followed by a home visit to Ms. Felts’ house the following day.

On April 27, 1994, Judge Mary Corey, based upon the agreement of the parents, returned Sabrina to the custody of her mother. The court accordingly entered an order indicating a “disposition by agreement” which, while it included an admission of physical, abuse, stated “perpetrator unknown, although mother and father believe it was [the maternal grandmother].” Judge Corey’s belief at the time was not inconsistent with Mr. Murphy’s.

On May 15, 1994, a call was made to the abuse hotline by Sabrina’s paternal grandmother, Jeanette Johnson. She stated she had picked Sabrina up for a visit and observed noticeable facial injuries. Ms. Johnson also stated Sabrina explained away the bruises by claiming she had fallen. Jane Kemp, the CPS employee who took the report, concluded there was “no information that would indicate. anything but accidental injury.”

Murphy had already scheduled a home visit for May 17th; he followed up on the phone call during his visit. Sabrina’s mother explained Sabrina was playing with a neighbor’s child and had fallen, causing the injuries. Sabrina confirmed her mother’s account of the injury. Four days later, Sabrina died as a result of injuries later proven to have been inflicted by Davis.

Dejuan Stratton, administrator for the estate of Sabrina Felts, initiated an action against the Cabinet in the Board of Claims. Stratton alleged the Cabinet’s negligence contributed to the death of Sabrina Felts. He argued that if the CPS workers had followed mandatory regulations requiring them to interview certain witnesses, they would have discovered and substantiated Davis as the abuser.

On May 11, 1999, the Cabinet moved to dismiss the case based on governmental immunity and failure to state a claim. The Board of Claims granted the Cabinet’s motion, holding the interviews were not ministerial or discretionary, but rather fell within the categories set forth in KRS 44.073(13)(d) and (e): “[a]ctions in the performance of obligations running to the public as a whole” and “[g]overnmental performance of a self-imposed protective function to the public or citizens.” The Board also found the Cabinet could not be hable under traditional negligence theories.

On Stratton’s appeal, the Franklin Circuit Court held the Board of Claims had erred as to the applicable law, citing this Court’s decision in Collins v. Commonwealth of Kentucky Natural Resources and, Environmental Protection Cabinet, 10 S.W.3d 122 (Ky.1999), and rejecting the Board’s interpretations of KRS 44.073(13). Under the Franklin Circuit Court’s reading of Collins, the Cabinet’s acts were ministerial, and governmental immunity was therefore waived.

The Cabinet appealed to the Court of Appeals, who reversed the Franklin Circuit Court, finding the addition of the terms “if possible” to Section Seven (7) of 905 KAR 1:330 made the Cabinet’s acts discretionary. The Court of Appeals did not address KRS 44.073.

II. Governmental Immunity

Governmental immunity is a doctrine of law created by section 231 of the Constitution of Kentucky. As an agency operating under the direction and control of the central state government, the Cabinet for Families and Children is entitled to the protections of governmental immunity unless that immunity has been explicitly waived. See Withers v. University of Kentucky, 939 S.W.2d 340 (Ky.1997).

The Board of Claims Act offers a limited waiver of governmental immunity with regard to negligence claims filed with the Board. The waiver extends only to negligence claims involving the performance of ministerial acts. KRS 44.073(2). A “ministerial” act is one in which the agency has no discretion; non-ministerial, or discretionary, acts cannot be a basis for recovery under the Board of Claims Act.

To decide whether the case workers of the CPS division of the Cabinet for Families and Children were performing ministerial or discretionary acts in this case, it is necessary to determine whether the acts involved policy-making decisions and significant judgment, or were merely routine duties. Collins v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 126 (Ky.2000).

In Collins, the mother of a deceased child filed suit against the Natural Resources and Environmental Protection Cabinet, asserting negligence concerning issuance of mine permits, inspection, and failure to require removal of a culvert in which her child drowned. The child was riding his bike near a creek, which ran underneath an access road to a strip mine and was covered by a 48-inch corrugated metal drainage culvert. The boy slid off the road and into the creek on the upstream side of the flooded drainage culvert and drowned. The upstream side of the creek had flooded because the drainage culvert was too small to handle the expected rain run-off.

This Court noted the Kentucky statutes governing coal mining are straightforward.

The Cabinet’s surface coal mining Inspectors are required to conduct inspections of coal mining operations and determine the existence of violations.... At the time of the accident, the acts required to be performed by the Cabinet with regard to the drainage culvert were specifically defined by regulation.... The regulations specifically required that water control structures for the roads be designed with a discharge capacity capable of passing the peak runoff from a 10-year, 24-hour precipitation event. Id.

The majority in Collins held inspecting drainage culverts to assure they conform to the regulations does not require any “significant judgment, statutory interpretation, or policy-making decisions” and the regulations could be enforced in a “routine, ministerial manner.” In fact, it would only require mathematical engineering calculations to determine if a culvert met the noted “peak run off” standard. Thus, the Cabinet’s negligent performance was actionable under the Board of Claims Act.

We believe the facts in this case are distinguishable from those rendering the Natural Resources and Environmental Protection Cabinet liable in Collins.

The applicable regulations in this case are found in section Seven (7) of 905 KAR 1:380, which states in pertinent part:

Information necessary for determining the validity of the report, and if valid, the existence of imminent danger and risk to the child shall be obtained during the investigation. Investigations shall entail face-to-face contact with the alleged victim. Victims, if of appropriate age, and if possible, parents or caretakers, appropriate household and family members, and alleged perpetrators shall be interviewed_
(4) Collateral contacts shall be interviewed if the validity or severity of the report cannot be determined from the interviews. Collateral sources may include: (a) Officers of the Court; (b) School personnel; (c) Neighbors; (d) Medical personnel; (e) Law Enforcement officers; and (f) Personnel of other agencies.

Looking first at the February 11th call by Sabrina’s paternal grandmother, Ms. Thompson, it is clear the CPS case worker did interview the caller, the alleged victim, the victim’s mother and the caregiver, Mr. Davis. From these interviews and further investigation, including a physical examination, the abuse was substantiated, though the perpetrator could not be identified.

The CPS employee who answered the May 1994 hotline phone call reported there was “no information that, would indicate anything but accidental injury” given by the caller. Mr. Murphy had already scheduled a home visit to the Felts’ home before this phone call was placed, and followed through with his visit two days after the call was received. He observed Sabrina and spoke to her and her mother, who both indicated her injuries resulted from an accident occurring while Sabrina was playing with a neighbor’s child.

The ministerial duties mandated by the regulations in this case were satisfied by the CPS case workers. As indicated above, all relevant parties were interviewed regarding the first allegation of abuse and the Cabinet was able to substantiate the allegations and file an action in the Jefferson County Family Court naming Melissa Felts and Mr. Davis as the possible perpetrators. Performing collateral interviews of individuals not mandated by the regulations regarding this abuse allegation would have been in the discretion of the case workers, and thus, then-decisions as to these matters are not actionable.

During the course of the court case and continuing investigation by CPS, information was obtained tending to place blame on the maternal grandmother. No information was ever conveyed identifying Mr. Davis as the abuser. The mother complied with the court orders and all parties to the case agreed to return Sabrina to her mother’s custody.

The second call to the abuse hotline was not an official “abuse report” as an accidental excuse was given for the injuries, and the phone call alone did not trigger a duty by the Cabinet to investigate all caregivers. There were no alleged perpetrators in this report. Nonetheless, Mr. Murphy did follow up on this phone call during his scheduled home visit and determined, in his discretion, that Sabrina’s injuries were accidentally inflicted by the neighbor child.

Unlike in Collins, where the applicable statutes mandate the water structures for the roads be designed in a certain way, and negligence by the Natural Resources and Environmental Protection Cabinet can be easily identified by the mere fact that the structures were not designed in the manner proscribed by statute, in this instance, the CPS case workers are investigating allegations of abuse. Such investigations do have certain mandated statutory requirements as to who shall be interviewed, etc., but they also involve discretionary decisions by the case workers, just as in police investigations. After performing their ministerial duties, the case workers must determine what action, if any, should be taken to resolve each claim — which in this case was to remove the child from a potentially dangerous environment — which they did, even though they could not identify the perpetrator. All such discretionary functions are protected by the doctrine of governmental immunity and do not fall under the waiver outlined by the Board of Claims Act.

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

LAMBERT, C.J.; GRAVES, and WINTERSHEIMER, JJ., concur.

COOPER, JOHNSTONE and ROACH, JJ., concur in result only.

      . Another call was made on May 18, 2004 relating to this same event.

      . The Child Protective Services Regulations today (2005) are found in 922 KAR 1:330.