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March 19, 2026 Get Citation Alerts Download PDF Add Note

Tamala Harris v. Mercy Home Health

Kentucky Supreme Court

• Citations: None known
• Docket Number: 2025-SC-0421
• Precedential Status: Non-Precedential
• Judges: Nickell

• Disposition: OPINION OF THE COURT

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (47.5K)

• PDF

Disposition

OPINION OF THE COURT

Combined Opinion

RENDERED: MARCH 19, 2026
TO BE PUBLISHED

Supreme Court of Kentucky
2025-SC-0421-WC

TAMALA HARRIS APPELLANT

ON APPEAL FROM COURT OF APPEALS
V. NO. 2025-CA-0073
WORKERS’ COMPENSATION BOARD
NO. WC-23-91685

MERCY HOME HEALTH; HONORABLE APPELLEES
PETER J. NAAKE, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD OF
KENTUCKY

OPINION OF THE COURT BY JUSTICE NICKELL

AFFIRMING IN PART AND REVERSING IN PART

Tamala Harris appeals from an opinion of the Court of Appeals affirming

a decision of the Workers’ Compensation Board (“Board”) which, in turn,

affirmed the opinion, award, and order of the Administrative Law Judge (“ALJ”).

She contends: (1) the ALJ erred by excluding mileage reimbursements from

the calculation of her average weekly wage; (2) the Court of Appeals erred by

dismissing her appeal in part as moot; (3) the ALJ erred by declining to award

benefits relative to an unpaid medical bill; and (4) the Court of Appeals erred by

rejecting a motion for leave to file an amicus curiae brief as an unauthorized

filing. Having carefully reviewed the record, law, and briefs, we affirm in part
and reverse in part. Remand for further proceedings is unnecessary, however,

due to the unique circumstances of this appeal.

FACTS AND PROCEDURAL HISTORY

Harris was employed as a certified nursing assistant for Mercy Home

Health (“Mercy”), providing daily in-home health and hospice care to 4 or 5

patients in the area surrounding Paducah, Kentucky. She worked 30 to 40

hours per week at an hourly wage. Harris also received mileage

reimbursement for travel in between patient visits.

On April 27, 2022, Harris strained her right shoulder while repositioning

a patient. Later that day, she also injured her lower back while assisting

another patient in and out of the shower. She sought medical attention for her

work-related complaints from Cody Sexton, APRN, at Harness Health Partners

on May 2, 2022, and was advised to remain off work. Eventually, she was

referred to Dr. Spencer Romine at The Orthopedic Institute of Western

Kentucky, who limited his treatment to the shoulder injury while referring

Harris to his associate, Dr. K. Brandon Strenge, for treatment of the lower back

injury. She was also treated by Dr. Ferdinand Salvacion, a pain management

specialist. Over the course of her treatment, Harris received medication,

injections, and physical therapy.

On January 27, 2023, Dr. Darshan Shah performed an independent

medical evaluation of Harris’s right shoulder and lower back at the behest of

Mercy’s insurance carrier, CompMC/CCMSI. Based on physical findings and

review of Harris’s medical history and records, Dr. Shah opined Harris’s work-

2
related trauma had caused a mere temporary aggravation of a pre-existing

degenerative back condition. He also concluded that the injury to Harris’s

right shoulder was temporary and had fully resolved. Dr. Shah further opined

Harris required no further medical treatment and concluded she was capable

of returning to regular work duties without restrictions.

Shortly thereafter, Mercy’s carrier terminated further payment of any

additional temporary total disability (“TTD”) income benefits or medical

expenses. Relevant to the present appeal, the carrier specifically denied

payment of an outstanding medical bill submitted by Dr. Strenge’s office in the

amount of $294.75.

Mercy ultimately terminated Harris’s employment, and in May 2023, she

began working for Shawnee Senior Living, assisting residents perform daily

activities. Harris earned more per week working at Shawnee Senior Living

compared to her prior employment with Mercy.

On October 17, 2023, Harris filed her Form 101 application for workers’

compensation benefits for the injuries to her right shoulder and lower back.

Mercy filed a timely response denying liability.

On February 8, 2024, Dr. Jeffrey N. Fadel performed an independent

medical examination upon Harris. He opined she had sustained work-related

right shoulder and lower back injuries and had remained temporarily totally

disabled from May 2, 2022, until reaching maximum medical improvement on

April 23, 2023. He assigned a 12% impairment rating relative to both her right

shoulder and lower back conditions pursuant to the AMA Guides. Dr. Fadel

3
also recommended several permanent restrictions including no standing in one

location for more than 30 minutes at a time; no walking continuously for more

than 15 minutes before a 5-minute sit-down recovery time; no repetitive stair

climbing at all; no lifting more than 20 pounds from floor to waist and that only

occasionally; no carrying more than 25 pounds for short distances and that

again only occasionally; no climbing ladders; no crawling or stooping; no

pushing or pulling more than 40 pounds and that only occasionally.

On March 23, 2024, Dr. Austin Nadet performed an independent medical

examination upon Harris. He concluded her alleged work-related injuries

qualified for no permanent impairment rating under the AMA Guides and

would assign no restrictions upon her return to regular work activities.

The ALJ conducted a benefit review conference on June 18, 2024, and a

final hearing on July 17, 2024. After reviewing the lay and medical evidence,

the ALJ entered an opinion, award, and order on September 11, 2024. The

ALJ dismissed Harris’s claim for further income or medical benefits relative to

her right shoulder injury, but determined she qualified for a 12% whole body

impairment rating relative to her work-related lower back injury. The ALJ

proceeded to award TTD benefits, permanent partial disability benefits based

upon an average weekly wage of $422.66, and medical benefits. The ALJ

declined to award benefits for the unpaid medical bill upon a finding that it

was untimely under KRS 1 342.020(4).

1 Kentucky Revised Statutes.

4
Harris filed a petition for reconsideration arguing the ALJ erred by failing

to include mileage reimbursements in the calculation of her average weekly

wage. She also argued the ALJ erred in denying payment of Dr. Strenge’s

medical bill, asserting the 45-day rule contained in KRS 342.020(4) does not

apply when the carrier rejects its liability for an injured worker’s claim.

The ALJ denied the petition for reconsideration on September 17, 2024,

and Harris appealed to the Board which affirmed in an opinion entered on

December 20, 2024. On January 21, 2025, she filed a petition for review in the

Court of Appeals, and Mercy filed its response to Harris’s petition on February

7, 2025.

On February 4, 2025, Kentucky Employers’ Mutual Insurance (“KEMI”)

tendered a motion for leave to file an amicus brief by registered mail, but the

Court of Appeals rejected the motion on February 10, 2025, refusing to

consider its merits, asserting it represented an unauthorized filing.

Even so, after KEMI had tendered its motion for leave, which supported

Harris’s position on the inapplicability of the 45-day rule to her unpaid medical

bills, Mercy voluntarily paid the outstanding bill to the provider and then filed

a motion to dismiss the portion of Harris’s appeal relative to this issue.

On March 21, 2025, the Court of Appeals entered an order passing the

motion to dismiss to the panel considering the merits of the appeal. An opinion

and order was thereafter rendered which affirmed the ALJ and Board relative to

Harris’s travel reimbursements not being included in the calculation of her

5
average weekly wage, but dismissed her appeal regarding nonpayment of Dr.

Strenge’s outstanding medical bill as moot. This appeal followed.

LAW AND ANALYSIS

A. Standard of Review.

The standard of review in workers’ compensation matters is well-

established. An injured worker “bears the burden of proof and the risk of

nonpersuasion before the fact-finder with regard to every element of a workers’

compensation claim.” Lexington Fayette Urban Cnty Gov’t v. Gosper, 671

S.W.3d 184, 198 (Ky. 2023). The ALJ functions “the same as a trial court

trying the case without a jury.” Id. (quoting W. Baptist Hosp. v. Kelly, 827

S.W.2d 685, 687 (Ky. 1992)).

As the finder of fact, the ALJ, “and not the reviewing court, has the

authority to determine the quality, character and substance of the evidence

presented.” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky.

1985). “Moreover, an ALJ has sole discretion to decide whom and what to

believe, and may reject any testimony and believe or disbelieve various parts of

the evidence, regardless of whether it comes from the same witness or the same

adversary party’s total proof.” Gosper, 671 S.W.3d at 198 (quoting Bowerman

v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)).

We will not disturb the ALJ’s findings of fact unless they are clearly

erroneous, but this Court is bound by neither the ALJ’s decisions on questions

of law nor the ALJ’s interpretation and application of the law to the facts. Id. at

1. On such matters, our review proceeds under the de novo standard. Id.

6
B. ALJ properly excluded mileage reimbursements
from average weekly wage computation.

Harris first argues the ALJ erred by excluding mileage reimbursements

from the calculation of her average weekly wage. We disagree.

The issue of whether the computation of average weekly wages includes

mileage reimbursements is a matter of statutory interpretation and the

application of law to facts. Therefore, our review is de novo. Gosper, 671

S.W.3d at 198.

KRS 342.140(6) defines “wages” as follows:

The term “wages” as used in this section and KRS 342.143 means, in
addition to money payments for services rendered, the reasonable value
of board, rent, housing, lodging, and fuel or similar advantage received
from the employer, and gratuities received in the course of employment
from others than the employer to the extent the gratuities are reported
for income tax purposes.

Similarly, KRS 342.0011(17) defines “wages” in general terms as follows:

“Wages” means, in addition to money payments for services
rendered, the reasonable value of board, rent, housing, lodging,
fuel, or similar advantages received from the employer, and
gratuities received in the course of employment from persons other
than the employer as evidenced by the employee’s federal and state
tax returns[.]

This Court has interpreted the definition of “wages” under both KRS 342.140(6)

and KRS 342.0011(17) to exclude “payment[s] that amount[] to a mere

reimbursement of expenses[.]” Anderson v. Homeless & Hous. COA, 135

S.W.3d 405, 413 (Ky. 2004). Our holding in Anderson tracks Professor

Larson’s treatment of the wage calculation analysis:

In computing actual earnings as the beginning point of wage-basis
calculations, there should be included not only wages and salary
but any thing of value received as consideration for the work, as,
7
for example, tips, bonuses, commissions and room and board,
constituting real economic gain to the employee. A car
allowance is includable as wage only if it exceeds actual truck,
or travel expenses.

Arthur Larson & Lex K. Larson, 8 Larson’s Workers’ Comp. Law § 93.01[2][a]

(2025) (emphasis added) (footnotes omitted).

We conclude the reasoning of Anderson applies with equal force to the

present appeal. Here, there is no evidence the mileage payments constituted a

fixed amount, stipend, performance bonus, or anything other than

reimbursements for Harris’s actual accrued employment-related travel

expenses incurred for driving to and from each patient’s residence. Thus, the

payments were based on the actual mileage required for the employment-

related visits, represented no additional economic gain to Harris, and were

properly excluded from calculation of wages as defined under KRS 342.140(6)

and KRS 342.0011(17). The ALJ committed no error.

C. Court of Appeals erred by dismissing
appeal in part as moot.

Harris next argues the Court of Appeals erred by dismissing her appeal

in part as moot. We agree.

It is well established that “a ‘moot case’ is one which seeks to get a

judgment . . . upon some matter which, when rendered, for any reason, cannot

have any practical legal effect upon a then existing controversy.” Morgan v.

Getter, 441 S.W.3d 94, 98-99 (Ky. 2014) (quoting Benton v. Clay, 233 S.W.

1041, 1042 (Ky. 1921)). “The general rule is, and has long been, that ‘where,

pending an appeal, an event occurs which makes a determination of the

8
question unnecessary or which would render the judgment that might be

pronounced ineffectual, the appeal should be dismissed.’” Id. at 99.

However, this Court has recognized the “voluntary cessation” exception

to the mootness rule and explained:

Under that exception, an appeal may proceed notwithstanding the
defendant’s voluntary cessation of the challenged action, a primary
concern being that a dismissal in those circumstances leaves the
defendant “free to return to his old ways.” 345 U.S. at 632[.] See
also Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty.,
301 S.W.3d 196 (Tenn. 2009) (collecting state cases applying or
considering the voluntary cessation exception). A related concern
is that parties should not be free to manipulate mootness so as to
frustrate, after the investment of significant judicial resources, the
“public interest in having the legality of the[ir] practices settled.”
W.T. Grant, 345 U.S. at 632[.] See also Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d
610 (2000); City of Erie v. Pap’s A.M., 529 U.S. 277 [.] And see,
Matthew I. Hall, The Partially Prudential Doctrine Of Mootness, 77
Geo. Wash. L.Rev. 562, 596–98 (2009) (discussing this aspect of
the voluntary cessation exception). In light of this concern, this
Court has issued opinions notwithstanding eleventh-hour
settlements rendering, and often deliberately meant to render, the
cases moot.

Id. at 99-100. The voluntary cessation exception is the converse of the

longstanding voluntary dismissal rule which permits an appellant to

“voluntarily dismiss his appeal if it does not adversely affect the rights of other

parties.” Bd. of Ed. of Berea v. Muncy, 239 S.W.2d 471, 473 (Ky. 1951); see

also Smith v. Jones, 11 S.W.2d 937, 939 (Ky. 1928); 5 C.J.S. Appeal & Error §

750 (2025).

For a defendant’s voluntary conduct to moot a case, it must be

“absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Beshear v. Goodwood Brewing Co., LLC, 635 S.W.3d 788,

9
800 (Ky. 2021) (quoting Friends of the Earth, 528 U.S. at 189). This stringent

standard places a heavy burden on the party asserting mootness to persuade

“the court that the challenged conduct cannot reasonably be expected to start

up again[.]” Id. (quoting Friends of the Earth, 528 U.S. at 189).

Here, Mercy disputed the compensability of the medical bill from the

outset and prevailed on this issue before the ALJ and the Board. Mercy

continued to dispute the compensability of the medical bill in its responsive

brief before the Court of Appeals. Mercy’s voluntary payment of the bill to the

medical provider occurred only after KEMI tendered an amicus brief in support

of Harris’s position. Harris had no control over the timing of Mercy’s decision

to make a voluntary payment to a nonparty and further responded in

opposition to Mercy’s motion for partial dismissal of her appeal.

The intent of KRS 342.020 is to “provide[] for the prompt payment of

medical bills.” Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 168 (Ky. 1993)

(emphasis added). Thus, we cannot conclude Mercy’s eleventh-hour voluntary

payment fully resolved the dispute over Harris’s entitlement to prompt

payment.

Moreover, on these facts, we perceive no assurance that the allegedly

wrongful practice of denying claims for unpaid medical benefits will

discontinue. This Court cannot countenance a party’s unilateral action to

evade appellate review in these circumstances because such an imprimatur

would be tantamount to carte blanche approval for other employers to pursue

similar tactics with other claims, causing unnecessary waste of judicial

10
resources, strain upon the health insurance system, and most importantly

potential mistreatment of injured employees who may have been wrongfully

deprived of workers’ compensation benefits. Therefore, we conclude the

voluntary cessation exception to the mootness doctrine applies relative to the

current controversy and turn to the merits of Harris’s appeal on this issue.

D. ALJ erred by declining to award benefits
for the unpaid medical bill.

Harris next argues the ALJ erred by declining to award benefits relative

to the unpaid medical bill. We agree.

KRS 342.020(4) states:

In the absence of designation of a managed health care system by
the employer, the employee may select medical providers to treat
his injury or occupational disease. Even if the employer has
designated a managed health care system, the injured employee
may elect to continue treating with a physician who provided
emergency medical care or treatment to the employee. The
employer, insurer, or payment obligor acting on behalf of the
employer, shall make all payments for services rendered to an
employee directly to the provider of the services within thirty (30)
days of receipt of a statement for services. The commissioner shall
promulgate administrative regulations establishing conditions
under which the thirty (30) day period for payment may be tolled.
The provider of medical services shall submit the statement
for services within forty-five (45) days of the day treatment is
initiated and every forty-five (45) days thereafter, if
appropriate, as long as medical services are rendered. Except
as provided in subsection (7) of this section, in no event shall a
medical fee exceed the limitations of an adopted medical fee
schedule or other limitations contained in KRS 342.035, whichever
is lower. The commissioner may promulgate administrative
regulations establishing the form and content of a statement for
services and procedures by which disputes relative to the
necessity, effectiveness, frequency, and cost of services may be
resolved.

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(Emphasis added). The above-emphasized provision of KRS 342.020(4) is

commonly referred to as “the 45-day rule.” Farley v. P&P Construction, Inc.,

677 S.W.3d 415, 419 (Ky. 2023).

In Farley, we held the 45-day rule

is unambiguous and requires a provider to submit billing
statements within 45 days after treatment has been provided. The
mandate to providers is unmistakable in its clarity. The plain and
forthright language of the statute affords no other construction but
that the provider “shall” submit the statement for services within
forty-five days of the day treatment.

Id. at 420. “[T]he date of treatment is the determinative factor and is this date

that triggers the start of the 45-day period for a provider to submit its billing to

the employer or insurer.” Id. Thus, “medical providers are required to submit

their billings within 45-days of service, regardless of whether a determination

of liability has been made, and employers and their insurance carriers are not

responsible for payment of billings submitted to them after the 45-day period.”

Id. at 417.

However, Farley explicitly refrained from addressing “the applicability or

potential implementation of 803 KAR 2 25:096 § 6[.]” Id. at 423. This

administrative regulation provides, “[i]f the medical services provider fails to

submit a statement for services as required by KRS 342.020(4) without

reasonable grounds, the medical bills shall not be compensable.”

2 Kentucky Administrative Regulations.

12
In an unpublished decision, 3 we have previously examined 803 KAR

25:096 § 6 and held the denial of a claim for medical benefits constituted

reasonable grounds to excuse noncompliance with the 45-day rule. Wolford &

Wethington Lumber v. Derringer, 2009–SC–000620–WC, 2010 WL 3377731, at

*6 (Ky. Aug. 26, 2010). The Court succinctly explained, “[k]nowledge of an

employer’s assertion that the condition being treated is non-work-related

constitutes reasonable grounds for failing to direct a provider to submit bills for

treating the condition to the employer or for failing to seek reimbursement for

bills paid personally.” Id.

The reasoning of Wolford is sound, and we adopt its analysis of 803 KAR

25:096 § 6 here. Mercy and its carrier denied Harris’s claim for benefits. The

denial of Harris’s claim distinguishes the present appeal from Farley wherein

the employer and its carrier accepted the injured worker’s claim. Farley, 677

S.W.3d at 417. Moreover, the denial of a claim constitutes a reasonable

ground for noncompliance because such denial clearly signals the employer

will not voluntarily pay any statement for services that it receives whether they

are submitted within 45 days or not until an ALJ makes an award of benefits to

the injured worker. In other words, the submission of a statement for services

by a medical provider within 45 days from the date of treatment is an exercise

3 We acknowledge that “unpublished cases as a rule are not meant to be cited

as official pronouncements of what the law is[;]” however, “it would be disingenuous to
say that this Court is not bound by oath and fidelity to consistently apply the law in
both published and unpublished decisions.” Taylor v. Commonwealth, 671 S.W.3d 36,
42 (Ky. 2023). Here, our research has not uncovered any published decisions of this
Court dealing with 803 KAR 25:096 § 6.

13
in futility where the employer denies the compensability of the claim and

denies liability for the alleged work-related injury.

We further observe the application of the Wolford rationale does not

result in prejudice to the employer in contested cases because

Chapter 342 does provide a deadline for submitting pre-award
medical expenses. KRS 342.270(1) requires a worker to raise all
known causes of action against the employer during the pendency
of the application for benefits. It would bar compensation for
outstanding medical expenses that a worker failed to raise during
the pendency of the underlying claim.

Wolford, 2010 WL 3377731, at *7. Based on the foregoing, we conclude the

ALJ erred by failing to award benefits for the unpaid medical bill. Remand is

unnecessary, however, because the bill has since been paid.

E. Court of Appeals erred by rejecting
motion for leave to file amicus brief
as an unauthorized filing.

Finally, Harris argues the Court of Appeals erred by rejecting KEMI’s

motion for leave to file an amicus brief as an unauthorized filing. At the outset,

we perceive no basis for Harris to assert standing to litigate KEMI’s entitlement

to file its motion. However, KEMI has raised the issue in its amicus brief before

this Court. Moreover, the allegation that the Court of Appeals is improperly

refusing to file amicus briefs in workers’ compensation appeals implicates the

supervisory authority of this Court in matters affecting the orderly and effective

administration of justice. See Ex parte Farley, 570 S.W.2d 617, 621 (Ky. 1978).

The Court of Appeals rejected KEMI’s attempt to file a motion for leave to

file an amicus brief in a document styled “NOTICE OF UNAUTHORIZED

DOCUMENT” which was signed by the Clerk of the Court. The notice stated:
14
PER RAP 4 34(A), AMICUS CURIAE MAY PARTICIPATE IN APPEALS
ONLY AS SET FORTH IN THIS RULE. RAP 34(B)(2) DIRECTS THAT
A MOTION FOR LEAVE TO FILE AN AMICUS BRIEF SHALL BE
FILED WITHIN FIFTEEN (15) DAYS OF THE FILING OF THE
APPELLANT’S BRIEF. NO APPELLANT’S BRIEF HAS BEEN FILED
IN THE ABOVE-STYLED CASE. AS SUCH, A MOTION FOR LEAVE
TO FILE AN AMICUS BRIEF IS UNAUTHORIZED.

KEMI represents that it attempted to clarify the matter with the Court of

Appeals over the telephone and was informed by an unnamed clerk that the

Court of Appeals does not accept amicus briefs in workers’ compensation

appeals because the workers’ compensation appellants file a “petition for

review” and not a “brief.” The Court of Appeals’ interpretation of the appellate

rules is erroneous.

RAP 34(A) states, “[a]micus curiae may participate in appeals only as set

forth in this rule[.]” RAP 34(B)(2) further provides, “[a] motion to file an amicus

curiae brief must be filed no later than 15 days from the date on which the

appellant’s brief is filed, or due to be filed, whichever is later, regardless of

whether the amicus curiae advocates the position of the appellant or appellee.”

The term “brief” is not specifically defined by our appellate rules or

caselaw. While a petition for review in a workers’ compensation appeal under

RAP 49 is not interchangeable with ordinary appellate briefs under RAP 30-32,

they are functionally equivalent. The differences between petitions for review

and ordinary appellate briefs merely pertain to the contingent properties of

4 Kentucky Rules of Appellate Procedure.

15
format, content, and organization. They do not denominate the essential

nature of a brief as an operative legal document.

For example, in ordinary legal parlance, a “brief” is understood to mean:

A written statement setting out the legal contentions of a party in
litigation, esp. on appeal; a document prepared by counsel as the
basis for arguing a case, consisting of legal and factual arguments
and the authorities in support of them. — Also termed legal brief;
brief of argument.

Brief, Black’s Law Dictionary (12th ed. 2024). Thus, a petition for review is

clearly a “brief” within the meaning of RAP 34: it is simply a particular type of

brief commensurate with the unique administrative context of workers’

compensation appeals. Thus, the Court of Appeals erred by rejecting KEMI’s

motion for leave to file its amicus brief as an unauthorized filing. We express

no opinion on whether such leave should have ultimately been granted.

CONCLUSION

For the foregoing reasons, the decision of the Court of Appeals is hereby

affirmed in part and reversed in part.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Wayne C. Daub

COUNSEL FOR APPELLEE:

Jeremy D. McGraw
Pohl Aubrey Gray, P.S.C.

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COUNSEL FOR AMICUS CURIAE, KENTUCKY
EMPLOYERS’ MUTUAL INSURANCE:

Brent E. Dye
O’Bryan, Brown & Toner, PLLC

ADMINISTRATIVE LAW JUDGE:

Hon. Peter J. Naake

WORKERS COMPENSATION BOARD:

Michael Wayne Alvey
Chairman

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