COMMONWEALTH OF KENTUCKY, LABOR CABINET, DIVISION OF SPECIAL FUND, ROBERT WHITTAKER, DIRECTOR v. ROY GENE KING AND ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND v. ROY GENE KING; GREEN COAL COMPANY, INC.; SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: September 22, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000653-MR
COMMONWEALTH OF KENTUCKY,
LABOR CABINET, DIVISION OF
SPECIAL FUND, ROBERT WHITTAKER,
DIRECTOR
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 99-CI-00221
ROY GENE KING
AND
APPELLEE
NO. 1999-CA-002237-WC
ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
NO. WC-96-07486
ROY GENE KING; GREEN COAL
COMPANY, INC.; SHEILA C. LOWTHER,
CHIEF ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
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APPELLEES
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OPINION
VACATING AND REMANDING
AS TO APPEAL NO. 1999-CA-000653-MR
AND
REVERSING AND REMANDING
AS TO APPEAL NO. 1999-CA-002237-WC
BEFORE: GUDGEL, Chief Judge; EMBERTON and TACKETT, Judges.
TACKETT, JUDGE:
In these consolidated cases, Commonwealth of
Kentucky, Labor Cabinet, Special Fund (Special Fund) appeals from
the March 15, 2000, judgment of the Daviess Circuit Court
enforcing Roy Gene King’s (King) workers’ compensation award.
The Special Fund also petitions this court for review of a
decision of the Workers’ Compensation Board (Board) vacating two
orders of the Chief Administrative Law Judge (ALJ) entered April
22 and May 17, 1999.
Having carefully considered the records and
the briefs filed by the parties in both actions, we agree with
the arguments raised by the Special Fund.
Therefore, we reverse
and remand in the workers’ compensation action and vacate and
remand in the Daviess Circuit Court action.
The facts of this case are not in dispute.
King worked
for Green Construction Company primarily as a heavy equipment
operator from 1951 until 1974 and continued to work for them
under its new name, Green Coal Company (Green Coal) until April
29, 1994, when he was laid off.
King filed claims for retraining incentive benefits and
for work-related hearing loss against Green Coal in 1996, listing
April 29, 1994, as his last date of exposure.
In an opinion and
award entered May 29, 1998, the ALJ found that King established
his entitlement to benefits in both claims.
The retraining
incentive benefits were the responsibility of Green Coal, and the
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ALJ apportioned 25% of the hearing loss award to Green Coal and
75% to the Special Fund.
The hearing loss award was ordered to
begin retroactively on April 30, 1994, a few months prior to
King’s sixty-fifth birthday, and was to continue for 425 weeks.
No appeal was taken and the opinion and award became final,
whereupon King’s attorney successfully filed a motion for
attorney fees.
The opinion and award did not contain the
required tier down language found in Kentucky Revised Statute
(KRS) 342.730(4)1 and the attorney fee award did not take the
statutory tier down provision into consideration.
When the payment of its portion of the award began in
May 1996, the Special Fund reduced its payments for both the
attorney fee and the application of the tier down provision.
King eventually filed an action against the Special Fund in
Daviess Circuit Court in February 1999 to enforce the ALJ’s
original opinion and award.
The Special Fund filed its response
and the judge entered an order enforcing the ALJ’s award without
taking into account the tier down provision.
On March 22, 1999,
the Special Fund filed its notice of appeal to this court.
Futher on March 22, 1999, the Special Fund filed a
motion to reopen the workers’ compensation action to correct the
award to include the tier down language.
With no mention of the
Special Fund’s pending motion, the ALJ, sua sponte, reopened the
action on April 22, 1999, and corrected the original award to
include the tier down language, relying on Wheatley v. Bryant
1
That statute provides that benefits for occupational
disability are to be tiered down by 10% each year beginning with
the claimant’s sixty-fifth birthday as long as the injury or date
of last exposure occurs prior to the sixty-fifth birthday.
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Auto Services, Ky., 860 S.W.2d 767 (1993).
King’s petition for reconsideration.
The ALJ then denied
King appealed to the Board.
Apparently because of the pending enforcement action, the Board
vacated the ALJ’s orders dealing with the correction of the award
pending a ruling by this court in the appeal of the circuit
court’s enforcement order.
petition for review.
The Special Fund then filed its
This court consolidated the two cases for
consideration on the merits.
We first note the applicable standard of review.
In
workers’ compensation actions, “[t]he function of further review
of the WCB in the Court of Appeals is to correct the Board only
where the . . . court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice.”
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685, 687 (1992).
The Board in its opinion stated that “while we cannot
reach the issue of whether the ALJ has the appropriate authority
according to Wheatley, supra, in issuing the order correcting the
award, we certainly can reach the conclusion that neither the ALJ
nor the Workers’ Compensation Board has jurisdiction in King’s
case.”
This court can perceive of no reason why the ALJ should
not be able to correct an error in an opinion and award while the
enforcement action is on appeal.
Pursuant to KRS 342.305, which
provides for circuit court enforcement of awards, an enforcement
order must be modified to conform to any decision of the ALJ
ending, diminishing, or increasing any weekly payment under KRS
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342.125.
Therefore, we must reverse.
Western Baptist Hospital,
supra.
We next address the question of whether the ALJ had the
authority to correct sua sponte the opinion and award to include
the statutory tier down language.
In Wheatley v. Bryant Auto
Service, Ky., 860 S.W.2d 767 (1993), the supreme court addressed
the issue of whether the ALJ had the authority to correct an
error in the opinion and award which was not appealed and had
become final.
In Wheatley, thirty-five days after the opinion
and award was issued and five days after it became final, the
ALJ, sua sponte, amended his opinion and award to apply correct
duration of benefits language.
In reinstating the order of the
ALJ, the supreme court stated that:
Here we believe that the ALJ was acting
properly and in the interest of justice when
he availed himself of the statutory remedy
set out in KRS 342.125 to correct his
admitted mistake in applying the law in the
compensation proceeding . . . . Since the
authority for correcting this mistake was
statutory, there was no prohibition by reason
of the finality of the decision against
making the correction, such as there would be
had there been a court decision where
finality had attached.
Wheatley, 860 S.W.2d at 769.
In the present appeals, the mistake the ALJ sought to
correct was the failure to include the tier down language in KRS
342.730(4).
As stated previously, King’s benefits commenced a
few months before his sixty-fifth birthday, so the tier down
provision would apply.
Everyone agrees that the tier down
provision is applicable and should have been included in the
opinion and award.
As Wheatley states “in the interest of
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justice,” the ALJ should be permitted to amend the opinion and
award to comply with the applicable law.
Id. at 769.
Finally, King argues that, as amended, the reopening
section, KRS 342.125, negates the exception to the finality rule
in Wheatley and the ALJ should be prevented from amending the
original opinion and award.
King’s argument is without merit in
that its result would allow an erroneous award to stand
uncorrected, permitting King to receive more benefits than he is
statutorily entitled to receive.
The opinion of the Workers’ Compensation Board vacating
the two orders of the ALJ is reversed and remanded.
The order of
the Daviess Circuit Court is vacated and remanded for entry of an
order enforcing the corrected opinion and award of the ALJ.
GUDGEL, CHIEF JUDGE, AND TACKETT, JUDGE CONCUR.
EMBERTON, JUDGE, CONCURS BY SEPARATE OPINION.
EMBERTON, JUDGE, CONCURRING.
I concur in result, and
for the most part I concur with the discussion of the majority.
However, it seems to me that since KRS 342.730(4) is mandatory it
does not matter whether such language is included either in the
ALJ’s order or the Board’s order.
The absence of the language,
of course, does create confusion which certainly ought to be
clarified by an amended order.
The matter of finality is of no
consequence.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEES:
David R. Allen
Frankfort, Kentucky
John S. Sowards, Jr.
Lexington, Kentucky
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