NOT TO BE PUBLISHED

OPINION

VANMETER, JUDGE.

The Uninsured Employers' Fund ("UEF") petitions for review of an opinion of the Workers' Compensation Board ("Board") affirming in part, vacating in part, and remanding an opinion of an Administrative Law Judge ("ALJ") awarding permanent total disability benefits to Christopher Allen following his motion to re-open an award for a work-related injury. For the following reasons, we affirm the opinion of the Board.

Allen filed an application for resolution of injury claim on March 20, 2003, alleging that he sustained injuries lifting a kettle off a stove while working for Sam An Tonio's, a former restaurant located in Prestonsburg, Kentucky.1 Allen gained employment with Sam An Tonio's via TMG Staffing Services ("TMG"), a staff leasing company. In correspondence with the ALJ, the custodian of the records of the Office of Workers' Claims certified that neither Sam An Tonio's nor TMG had workers' compensation coverage on the date of Allen's injury. Consequently, the UEF was joined as a party to this action.

Sam An Tonio's filed a notice of claim denial, contesting that Allen suffered a permanent injury or impairment. The notice lists Crawford and Company ("Crawford") as Sam An Tonio's insurance carrier, and indicates that $5,299.77 in voluntary income benefits was paid to Allen to cover a period from March 22, 2003 through August 31, 2003.

The UEF moved the ALJ to dismiss it as a party on the basis that TMG and Sam An Tonio's were insured at the time of Allen's injury. In support of its motion, the UEF filed a report with the ALJ which included two certificates of insurance allegedly covering TMG and Sam An Tonio's: one covering a period from August 1, 2002 through July 31, 2003, listing Trans Pacific Insurance Company ("Trans Pacific") as the date of injury insurance carrier; the second covering a period from February 10, 2003 through February 10, 2004, issued by Providence Property & Casualty Insurance Company ("Providence"). Both certificates indicate TMG was the insured party, and Sam An Tonio's was the certificate holder. Based on the production of the certificates, the ALJ dismissed the UEF as a party.

Allen provided the medical records of an examination conducted by Dr. Ira Potter, who diagnosed Allen with a disc bulge with central spinal canal stenosis, degenerative disc disease, chronic lumbosacral strain/sprain, and chronic bilater radiculitis and assessed a 12% whole person impairment. Dr. Potter indicated that Allen could return to work as a cook, if he observed restrictions of not lifting more than 25 pounds occasionally and 15 pounds frequently; did not continuously sit, stand, or walk for more than 60 minutes; and did not repeatedly stoop, bend, crouch, or squat.

Allen was also examined by Dr. Gregory Snider, who diagnosed Allen with chronic thoracic strain and chronic lumbar strain. Dr. Snider assessed a 10% whole person impairment, 5% for his thoracic spine and 5% for his lumbar spine. Due to Allen's condition, Dr. Snider recommended work restrictions of lifting no more than 40 pounds. Additionally, the medical records were introduced of Dr. William Lester, who also conducted an independent medical evaluation ("IME") of Allen and diagnosed a lumbar sprain, but assigned no impairment.

Thereafter, Allen agreed to a settlement of his claim with Crawford. The agreement provided for a lump sum payment of $10,000 to Allen, listing the diagnoses as a "low back strain," and stating that Crawford was the insurer. TMG issued a $10,000 check, and Crawford delivered it to Allen.

In 2006, Allen moved to re-open the workers' compensation award, alleging that his condition had worsened and, as a result, he was unable to find suitable employment. In support of his motion, Allen submitted the medical records of Dr. Laura Hazeltine, Allen's treating physician since February 2006. The records indicated Allen complained of increased pain that began radiating to his legs. An MRI dated February 3, 2006, showed Allen had muscle spasms and a loss of some lordosis. Dr. Hazeltine opined that Allen's condition had worsened since 2005, assessed a 12% whole person impairment, and stated that Allen was now 100% occupationally disabled. She advised Allen to not lift more than ten pounds, sit or stand in same position for more than an hour, or repeatedly bend or stoop. Based on a review of this evidence, the ALJ re-opened the award.

Subsequently, Allen moved to join the UEF as a party, asserting that Sam An Tonio's and TMG were no longer available to pay for his continuing medical expenses. The Department of Workers' Claims ("Department") issued a notice of citation and penalty against TMG, in which it stated that TMG misrepresented facts regarding its insurance coverage, and then failed to pay medical bills submitted by Allen. Providence filed a notice of contest in response, denying that it issued any certificates of insurance for TMG or Sam An Tonio's. Crawford argued that it was a third-party adjustor for TMG, it ended its contractual relationship with TMG in 2008, and was led to believe that TMG was insured by Trans Pacific. The ALJ dismissed Providence as a party, and found Crawford to be the insurer of TMG and liable for payment of Allen's medical bills.

Crawford filed a motion for an extension of time to provide further proof regarding the insurance coverage issue, which the ALJ granted. William Bradley Thomas, a service center manager at Crawford, was deposed and testified that Crawford is a claim solution company that investigates claims on behalf of insurance companies and is not an insurance company. Crawford also presented a copy of the $10,000 settlement check issued by TMG to Allen. The ALJ entered an order rejoining the UEF on the basis that Crawford conclusively established it was not an insurer of TMG. The UEF filed a petition for reconsideration, which the ALJ denied.

Additional medical records were introduced regarding Allen's condition since the time of injury. Dr. Frederic Huffnagle evaluated Allen for a social security disability assessment and diagnosed him with low back pain with sciatica. Dr. Huffnagle further observed that Allen walked with a right limp and was unable to stand on his toes or heels. Dr. William Lester performed an IME of Allen in 2009 and opined that his condition had not deteriorated since his initial injury.

In an opinion, order and award, the ALJ found Allen's condition to have changed so that he was now totally disabled and that the UEF was responsible for all benefits for which Allen was entitled. The UEF appealed to the Board, which affirmed the ALJ's opinion in part, and vacated the portion of the opinion regarding the amount of benefits Allen would receive each week. This appeal followed.

On appeal to this court, the UEF first argues the ALJ abused his discretion by granting Allen's motion to re-open his workers' compensation award. We disagree.

The standard for appellate review of a Board decision "is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App. 2009) (citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)). KRS2 342.285 grants the ALJ, as fact-finder, sole discretion to determine the quality, character, and substance of the evidence. Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002) (citations omitted). Our review of an award by an ALJ is to determine whether the findings were reasonable under the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

A settlement agreement to a workers' compensation claim becomes final upon approval by the ALJ, relief from which can only be obtained if it is re-opened pursuant to KRS 342.125. Uninsured Employers' Fund v. Turner, 981 S.W.2d 544, 545 (Ky. 1998) (citation omitted). Our review of an ALJ's decision to grant a motion to re-open is for an abuse of discretion, i.e., the decision was "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Hodges v. Sager Corp., 182 S.W.3d 497, 500 (Ky. 2005).

In order to prevail on a motion to re-open, the movant must make a preliminary prima facie showing of a substantial probability of proving one or more of the following grounds under KRS 342.125(1):

Hall v. Hospitality Res., Inc., 276 S.W.3d 775, 779-80 (Ky. 2008) (citation omitted).

In the case at bar, Allen moved the ALJ to re-open the award on the basis that his condition continued to deteriorate since the entry of his initial award, and he had suffered a substantial increase in his physical symptoms. To support his motion, Allen attached an affidavit, in which he attested to the worsening of his physical symptoms. Allen also attached the medical reports of his treating physician, Dr. Hazeltine, as well as an MRI report indicating disc degeneration. Based upon these medical records and Allen's affidavit, the ALJ determined Allen made a sufficient prima facie showing of a change in his condition to warrant a re-opening of the award. We find no basis in the UEF's argument that the ALJ abused his discretion by re-opening the award.

Next, the UEF alleges the ALJ erred by granting Allen's motion to join the UEF as a party after the re-opening of the workers' compensation award. We disagree.

KRS 342.780 provides,

The UEF directs us to Turner, in which the Kentucky Supreme Court held that the terms of a settlement agreement which were approved by the ALJ and became a final award, terminated the workers' compensation action, and precluded the subsequent joinder of an additional party. 981 S.W.2d at 544. Under Turner, the UEF argues it could only have been joined as a party to the action prior to the settlement agreement becoming the final award. However, in Turner, unlike the case before us, the parties did not file a motion to re-open, and none of the statutory grounds of KRS 342.125(1) were asserted before the ALJ. Thus, the decision by the court in Turner is distinguishable and does not effectively preclude the joinder of the UEF after the final award in this instance.

In Brown & Williamson Tobacco Corp. v. Harper, 717 S.W.2d 502 (Ky.App. 1986), this court held that the Special Fund could be joined during a re-opening of a workers' compensation award when no basis existed for joining it in the original proceedings. Further, an ALJ may properly join the UEF during a re-opening if a claimant did not have knowledge that his employer was insolvent and did not have workers' compensation insurance at the time of the initial award. See Uninsured Employers' Fund v. Fox, 862 S.W.2d 902, 905 (Ky. 1993). Expressly, the court in Fox stated, that "`[re-opening] petitions are designed to prevent injustice resulting from the erroneous fact-finding of officials such as an ALJ, not to save litigants from the consequences of their counsel's mistakes.'" Id. (quoting Verderane v. Jacksonville Shipyards, Inc., 772 F.2d 775, 780 (11th Cir. 1985)).

In the instant case, the UEF was joined as a party to the underlying proceedings when an investigation by the Department revealed that neither Sam An Tonio's nor TMG had workers' compensation coverage. Subsequently, TMG provided certificates of insurance issued by Trans Pacific and Providence, and the ALJ dismissed the UEF as a party. Not until the notice of citation and penalty against TMG was approved by the ALJ did facts emerge that TMG made fraudulent representations regarding its insurance coverage. Allen's medical bills from March 2003 through August 2003 were paid by TMG, which also issued him a $10,000 settlement check. Additionally, the ALJ mistakenly found that Crawford was an insurer of TMG upon re-opening. Under these circumstances, we are unable to appreciate how Allen was in a position to obtain knowledge that TMG was uninsured. Accordingly, the ALJ did not err by joining the UEF during the re-opening of the workers' compensation award.

The UEF next argues that the ALJ erred in determining that Allen's condition had worsened so that he was permanently and totally disabled and unable to work. We disagree.

KRS 342.0011(11)(c) defines a "permanent total disability" as "the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury[.]" To determine whether a claimant with a permanent disability rating has an inability to perform any type of work "requires a weighing of the evidence concerning whether the worker will be able to earn an income by providing services on a regular and sustained basis in a competitive economy." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). Such an analysis requires the ALJ to consider "the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact." Id.

Upon a careful review of the record, we believe that substantial evidence exists to support the ALJ's conclusion that Allen is now permanently and totally disabled and unable to perform any type of work. Prior to the settlement agreement between the parties, Dr. Potter determined Allen to have a 12% whole person impairment, Dr. Snider assessed a 10% whole person impairment, and Dr. Lester found Allen to have no impairment. Dr. Hazeltine opined that Allen is now 100% occupationally disabled and assigned a 12% permanent impairment, noting that Allen's condition has continually deteriorated while in her care. An MRI taken in 2006 revealed Allen has muscle spasms and loss of some lordosis. Allen testified that he has back pain when sitting for long periods of time, and can only walk for 10 to 20 minutes before his foot begins to drag. Believing Allen to have had a 10% impairment rating at the time of settlement, the ALJ determined that Allen's condition deteriorated so that he had a 12% permanent impairment at the time of re-opening. Such a decision is based upon the medical evidence reiterated above, and therefore we cannot reverse the ALJ's finding.

For its final claim on appeal, the UEF contends that the ALJ erred by considering Allen's thoracic spine injury during re-opening. Specifically, the UEF argues that Allen waived any claim regarding the injury because the settlement agreement only listed the lower back injury as compensable. We disagree.

KRS 342.125 addresses the re-opening of workers' compensation awards, and, with respect to prior settlement agreements, provides in part:

KRS 342.125(7) (emphasis added). Stated another way, the application of res judicata and collateral estoppel are prohibited on a motion to re-open a settled workers' compensation award. Beale v. Faultless Hardware, 837 S.W.2d 893, 896 (Ky. 1992).

Since res judicata does not bar issues upon re-opening which could have been addressed in the original proceeding, we find no merit in the UEF's argument that Allen waived his right to address his thoracic spine injury claim. During the original application for benefits, Allen alleged an injury to his thoracic spine and provided medical evidence in support of his claim. Accordingly, the ALJ did not err in this regard.

The opinion of the Workers' Compensation Board is affirmed.

ALL CONCUR.