No. 4-91042. FORREST JOEY GADBURY PETITIONER VS. UNITED PARCEL SERVICE and HON. CHRIS DAVIS.

• Court: Kentucky

Kentucky Workers Compensation 2010. No. 4-91042. FORREST JOEY GADBURY PETITIONER VS. UNITED PARCEL SERVICE and HON. CHRIS DAVIS FORREST JOEY GADBURY PETITIONER VS. UNITED PARCEL SERVICE and HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE RESPONDENTS.OPINION ENTERED: MAY 11, 2010CLAIM NO. 4-91042APPEAL FROM HON. CHRIS DAVIS,ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING * * * * * *BEFORE: ALVEY, Chairman; COWDEN and STIVERS, Members. ALVEY, Chairman. Forrest Joey Gadbury ("Gadbury") seeks review of a decision rendered January 7, 2010 by Hon. Chris Davis, Administrative Law Judge ("ALJ") resolving a post-award medical dispute concerning ongoing treatment provided by Dr. George Chaney, Dr. Shawn Hudson and Dr. Phillip Tibbs filed by United Parcel Service, Inc. ("UPS") in Gadbury's favor. Gadbury also appeals from an order issued February 1, 2010 denying his petition for reconsideration. On appeal, Gadbury argues the ALJ erred by failing to award an additional period of temporary total disability benefits ("TTD") for the period spanning May 1, 2009 through May 28, 2009. Gadbury acknowledges that at no time prior to the petition for reconsideration did he raise the issue of TTD before the ALJ. Nevertheless, Gadbury argues his entitlement to TTD during this period was apparent based on the evidence submitted, and as such there was no reason for him "to be forced to file an additional clam since all the necessary evidence was before [the ALJ] to make this decision." We affirm. It is undisputed that on March 10, 2004, Gadbury suffered a work-related injury to his lumbar spine while working at UPS. Thereafter, Gadbury and UPS entered into a settlement agreement based upon a 5.1% disability rating approved by an ALJ on August 30, 2005. Gadbury's right to receive future medical benefits pursuant to KRS 342.020 was preserved under the terms of the agreement. On May 11, 2009, UPS filed a Form 112 Medical Dispute and motion to reopen challenging its liability for treatment of the lumbar spine being provided to Gadbury by Drs. Chaney, Hudson and Tibbs. On May 21, 2009, Gadbury filed a response to the medical dispute. Therein, TTD was not raised as an issue. On July 20, 2009, the matter was assigned to ALJ Davis for resolution. Following the submission of evidence, both parties filed witness lists. TTD was not mentioned in the pleading filed by...