ROBERT L . WHITTAKER, DIRECTOR OF WORKERS' COMPENSATION FUNDS V CYNTHIA K . HALL, DECEASED ; JAMES C . HALL, SURVIVING SPOUSE OF CYNTHIA K . HALL ; PEYTON'S INC . ; HON . DONNA H . TERRY, ADMINISTRATIVE LAW JUDGE ; HON . SHEILA C . LOWTHER, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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AS MODIFIED : MAY 20, 2004
RENDERED: JANUARY 22, 2004
TO BE PUBLISHED
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2003-SC-0048-WC
ROBERT L. WHITTAKER, DIRECTOR OF
WORKERS' COMPENSATION FUNDS
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-1586-WC
WORKERS' COMPENSATION BOARD NO. 93-27664
CYNTHIA K. HALL, DECEASED ; JAMES C. HALL,
SURVIVING SPOUSE OF CYNTHIA K. HALL ;
PEYTON'S INC . ; HON. DONNA H . TERRY,
ADMINISTRATIVE LAW JUDGE; HON. SHEILA C .
LOWTHER, ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING
An Administrative Law Judge (ALJ) awarded benefits to a deceased worker's
estate and to her surviving spouse . Liability was apportioned equally to the employer
and Special Fund . During the pendency of an appeal concerning the duration of the
defendants' payment periods under the award, the surviving spouse remarried . After
the award became final, the employer moved for "clarification" and a reopening of the
award, seeking an adjustment in the defendants' payment periods based upon the
reduced value of the award due to the surviving spouse's remarriage. Relying upon
Wheatley v. Bryant Auto Service , Ky., 860 S .W .2d 767 (1993), an ALJ granted the
motion, reopened the award, and ordered the employer and Special Fund to pay their
proportionate share of the benefits that would actually be due under the award . The
Workers' Compensation Board (Board) and the Court of Appeals affirmed . Having
concluded, however, that the reopening was unauthorized, we reverse .
On July 15, 1993, Cynthia Hall was injured while working . She filed a workers'
compensation claim and was awarded a 50% permanent, partial disability, with benefits
apportioned equally between the employer and Special Fund . Following an appeal, this
Court remanded the claim for further consideration . Shortly thereafter, on October 7,
1999, Mrs . Hall died from a cause that was unrelated to her claim, and her surviving
spouse, James C. Hall, was substituted as a party. On May 2, 2000, an Administrative
Law Judge (ALJ) awarded a permanent, total disability, apportioned equally . Following
petitions for reconsideration, an order of July 24, 2000, indicated that income benefits
were payable to Mrs. Hall's estate from October 23, 1993, through October 7, 1999, the
date of her death. As provided by KRS 342 .730(3), 50% of the benefit was payable to
her surviving spouse from October 8, 1999, for the remainder of her life expectancy.
The order provided that if Mr. Hall remarried before the compensable period expired, he
was entitled to a lump sum payment under KRS 342 .730(3)(e) . Following the Special
Fund's petition for reconsideration of the July 24 order, an order entered on September
20, 2000, repeated that liability for the benefits awarded was apportioned equally
between the defendants. The order directed the employer to pay all benefits initially,
subject to its proportionate share .
Appealing, the Special Fund asserted that, despite Mrs. Hall's death, the
defendants' payment periods should have been based upon her life expectancy at the
time she became totally disabled . Rejecting the argument, the Board affirmed the
ALJ's decision to apportion the known value of the award . The Court of Appeals
affirmed on October 26, 2001, and no appeal was taken from that decision .
On January 4, 2002, after the award became final, the employer filed a motion
for clarification of the award . On January 23, 2002, the employer also filed a motion to
reopen and for clarification of the award . The motions asserted that the value of the
entire award could now be determined with certainty because Mr. Hall had remarried
during the pendency of the appeal to the Court of Appeals. Maintaining that the
employer had already paid 50% of the income benefits that actually would be due under
the award, the motion asserted that the Special Fund was responsible for the balance .
Responding to the motion, the Special Fund asserted that the Department of
Workers' Claims (Department) lost jurisdiction over the claim when the Court of
Appeals' decision became final. Thus, the ALJ did not have jurisdiction to grant the
employer's motion and reopen the award . Under the terms of the final award, the
employer was responsible for the initial 50% of the benefits awarded . Based upon the
facts as they existed at the time, the ALJ awarded $253.34 per week from October 29,
1993, through October 7, 1999, and $127.67 per week from October 8, 1999, through
the remainder of Mrs. Hall's life expectancy on the date of accident. The Special
Fund's position was that since Mr. Hall remarried during the employer's payment period
under the award, the employer was responsible for the two-year lump sum to which Mr.
Hall was entitled under KRS 342 .730(3)(e) .
Relying upon Wheatley v. Bryant Auto Service , supra, the ALJ reopened the
claim in order to resolve the dispute between the parties as a result of "the unforeseen
circumstances following its rendition" and to render "a more explicit award ." Noting that
the award held the defendants equally liable for all benefits awarded, the ALJ
determined that there was no discernable legal distinction between the question that
the Court of Appeals had considered when affirming the underlying award and the
question that was presently in dispute . The ALJ concluded, therefore, that the
defendants were equally liable for "all known benefits." Affirming the decision, the
Board determined that "the contingency of the widower's remarriage necessitated a
reopening so that the award could conform with reality ." The Court of Appeals affirmed
and adopted the Board's opinion .
A final workers' compensation award is the equivalent of a judgment and is
enforceable as such in circuit court . KRS 342 .305 . Nonetheless, KRS 342 .125(1)
permits the reopening of an otherwise final award upon a showing of one of several
specified grounds for reopening . A motion to reopen, accompanied by prima facie
evidence of one of the specified grounds, is the procedural device by which a party may
invoke the Department's jurisdiction to do so . Id .
If one of the specified grounds
exists, an ALJ may also reopen an award sua sponte . Id .
One of the permissible grounds for reopening is "mistake ." KRS 342.125(1)(c)
[previously KRS 342 .125(1)]. Under the provision, reopening is permitted to address a
mutual mistake of fact or a misconception of the cause, nature, or extent of disability at
the time an award is rendered . See Favette County Board of Education v. Phillips , Ky.,
439 S .W.2d 319 (1969). Messer v. Drees, Ky., 382 S.W.2d 209 (1964). The provision
may also be used to correct a mistake of law in an award that has not been reviewed on
appeal. Wheatlev v. Bryant Auto Service , supra ; Stearns Coal and Lumber Co . v.
Vanover, 262 Ky. 808, 91 S.W .2d 518 (1936).
In Wheatlev v. Bryant Auto Service , supra , an ALJ mistakenly awarded income
benefits for 425 weeks rather than life. No appeal was taken from the decision . Some
35 days later, after the award had become final, the ALJ realized the mistake and
amended the opinion and order to reflect the correct duration . A question then arose
over whether the ALJ's action was authorized . Noting that an admitted mistake in
applying the law could be corrected in a civil proceeding under CR 60.02, we
determined that the ALJ was authorized by KRS 342 .125(1) to reopen the award, sua
s onte, in order to correct what was a patent error in applying the law as it existed at
the time of the award .
Mrs. Hall died shortly after this Court remanded the claim for further
consideration, and Mr. Hall was substituted as the plaintiff. On May 2, 2000, the ALJ
awarded Mrs. Hall a total disability, payable for life. On July 24, 2000, after considering
Mr. Hall's petition for reconsideration, the ALJ amended the award based upon the
facts that were in existence at the time it was rendered . As a result, benefits were
awarded to Mrs. Hall's estate up until her death, and survivors' benefits were awarded
to Mr. Hall thereafter for the duration of her life expectancy. The amended award also
provided that in the event Mr. Hall remarried before the expiration of the compensable
period, he was entitled to the lump sum payment that was authorized by KRS
342 .730(3)(e). On September 20, 2000, when ruling on the Special Fund's petition for
reconsideration, the ALJ again ordered that "all benefits awarded herein are
apportioned equally between the defendant-employer and the Special Fund, with the
defendant-employer directed to pay all benefits initially, subject to its proportionate
share." After the Court of Appeals affirmed the apportionment of all known benefits, the
award became final, and the defendants' payment periods under the award were fixed .
Unlike the situation in Wheatley v. Bryant , supra , the ground for reopening the
present award was not a mistake in the ALJ's application of the law when rendering it.
Furthermore, unlike the situation in Fayette County Board of Education v. Phillips,
supra, or in Messer v. Drees, supra , the award was not the product of a misconception
of the facts as they existed when it was rendered . Although characterized as a
reopening to "clarify" the award, the basis for reopening was to address a post-award
change in the facts, namely, that the total amount of benefits to be paid under the
award had decreased because the surviving spouse remarried . Therefore, the
employer maintained that the defendants' payment periods should be recalculated .
KRS 342.125 does not authorize a reopening to clarify an award . Under certain
circumstances, reopening is a remedy for a mistake in an award, but "mistake" is not a
proper ground to reopen an award that was correct under the facts that existed when it
was rendered .
In other words, there is no mistake in an award simply because the
recipient later dies and/or the surviving spouse remarries . Under KRS 342.120, the
defendants' payment periods under an award are based upon their respective shares of
the total benefits that are awarded, and the employer pays its entire liability first. Just
as the employer is not required to pay additional benefits if a worker outlives the
projected life expectancy, its payment period is not shortened if a post-award change in
the facts causes benefits to cease before the entire award is paid out. See Pickands
Mather & Co. v. Newberg , Ky., 895 S .W .2d 3, 5-6 (1995); Pennwalt Corporation v.
Beale, Ky.App., 840 S .W .2d 830, 832 (1992) .
In the present case, benefits were awarded to Mrs. Hall's estate and her
surviving spouse based upon the facts that were in existence at that time . Although Mr.
Hall's subsequent remarriage changed the amount of benefits that would ultimately be
due under the award, it did not render the award a "mistake ." Absent any of the
grounds that are specified in KRS 342 .125(1), a reopening and adjustment of the
defendants' payment periods due to subsequent events was unauthorized .
The decision of the Court of Appeals is reversed, and the defendants' payment
periods under the award that was entered on May 2, 2000, and amended on July 24,
2000, are reinstated .
Lambert, C.J ., and Graves, Johnstone, Keller, Stumbo and Wintersheimer, JJ .,
concur. Cooper, J ., files a separate opinion concurring in part and dissenting in part.
COUNSEL FOR APPELLANT :
David W. Barr
Workers' Compensation Funds
1047 U .S. Hwy. 127 South, Suite 4
Frankfort, KY 40601
COUNSEL FOR APPELLEES,
CYNTHIA K. HALL AND JAMES C. HALL :
Edward A. Mayer
Mayer Law Office
Strathmoor Building, Ste . 202
2811 Bardstown Road
Louisville, KY 40205
COUNSEL FOR APPELLEE,
PEYTON'S INC . :
Walter E . Harding
Boehl Stopher & Graves
Aegon Center, Ste. 2300
400 W. Market Street
Louisville, KY 40202
AS MODIFIED : MAY 20, 2004
RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
~suyrrmr 011,Vurf of ~rnfurhV
2003-SC-0048-WC
ROBERT L. WHITTAKER, DIRECTOR OF
WORKERS' COMPENSATION FUNDS
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-1586-WC
WORKERS' COMPENSATION BOARD NO . 93-27664
CYNTHIA K. HALL, DECEASED ; JAMES
C. HALL, SURVIVING SPOUSE OF
CYNTHIA K. HALL ; PEYTON'S INC . ;
HON. DONNA H . TERRY,
ADMINISTRATIVE LAW JUDGE ;
HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
The error that the majority opinion has made in this case is akin to a "category
mistake." See Gilbert Ryle, The Concept of Mind 16 (1949) . The opinion correctly
concludes that the ALJ order from which this appeal is taken is not an order resolving a
motion to reopen under KRS 342 .125 as that provision only pertains to motions to "end,
diminish, or increase compensation previously awarded ." KRS 342 .125(4). The
"motion for clarification/ motion to reopen" filed in this case did not request, nor did the
ALJ purport to grant, such relief. The motion only requested clarification of the
apportionment status of a previously entered award that had reached its conclusion by
operation of law because the injured worker's widower remarried during the pendency of
the appeals.
However, KRS 342.125 does not govern all motions to reopen, just those that
seek to "end, diminish, or increase compensation previously awarded ." The motion filed
in this case falls with the purview of KRS 342.325 :
All questions arising under this chapter, if not settled by agreement of the
parties interested therein, with the approval of the administrative law
judge, shall be determined by the administrative law judge except as
otherwise provided in this chapter .
Notably, no authority precludes the Board, upon motion of either party, from resolving a
dispute as to the meaning and effect of a previously entered award . In fact, Hale v.
Nugent Sand Co. , Ky. App., 657 S.W.2d 246 (1983), overruled on other grounds by
Brown Badgett, Inc. v . Calloway , Ky., 675 S .W.2d 389 (1984), held that "[t]he Board has
continuing jurisdiction over the amounts payable under an Award ." Id . at 247 (citations
omitted) . It just cannot "end, diminish, or increase compensation previously awarded"
absent compliance with the procedural requirements of the reopening statute, KRS
342 .125(1). Thus, the ALJ was not, as the majority concludes, without jurisdiction to
entertain a motion to resolve a "question[s] arising under this chapter," i .e . , the
interpretation of the apportionment status of a previously entered award.
The opinion and award for which clarification was requested was entered on May
2, 2000, and modified by orders granting petitions for reconsideration entered on July
24 and September 20, 2000 . The need for clarification is apparent from the following
chronological record :
July 15, 1993, - Cynthia K. Hall was injured in a work-related accident while
employed by Peyton's, Inc. She was forty-two years old and married to James C. Hail .
She continued to work until October 29, 1993.
January 28, 1997 - The original opinion and award was entered awarding Mrs .
Hall TTD benefits of $253 .34 per week through March 20, 1995, payable by the
employer, and PPD benefits of $126 .68 (sic) payable for life for a 50% permanent
partial disability, apportioned equally between the employer and the Special Fund. At
the time of Mrs . Hall's injury, KRS 342 .120(6) provided, inter alia , as follows :
[T]he employer shall be liable for the payment of all income benefits until
the benefits paid have reached a percentage of the full income benefits
awarded by the administrative law judge which is equal to the percentage
of disability which would have resulted from the latter injury or
occupational disease had there been no pre-existing disability or dormant,
but aroused disease or condition .
Thus, the employer's portion of the liability (50% of life expectancy) was payable first
with the remainder payable by the Special Fund. During the pendency of the appeals
from this award, the employer paid Mrs . Hall $253 .34 per week from October 29, 1993 March 25, 1995, and $126 .68 per week from March 25, 1995 - April 17, 1999, in
aggregate, totaling $49,516 .32 .
June 6, 1997 - The Workers' Compensation Board ("Board") reversed the
original award, holding that it relied upon the clearly erroneous finding of fact that Mrs.
Hall could return to work, and remanded for additional findings consistent with its
opinion. In a later opinion on a subsequent appeal, the Board explained that it reversed
and remanded the initial award because the ALJ had applied a standard of "what might
have been" rather than "what was." Peyton's Inc . v. Hall, Claim No . 93-27664, slip op .
at 3 (Jan . 24, 2001). (Remember those words .)
December 4, 1998 - The Court of Appeals affirmed .
September 23, 1999 - This Court affirmed in part, reversed in part, and
remanded to the ALJ "for additional specific findings on the question of occupational
disability and for the entry of an award which is consistent with those findings."
Whittaker v. Peyton's Inc. , Ky., No. 97-CA-1681-WC, slip op. at 10 (Sept. 23, 1999)
(emphasis added) .
October 7, 1999 - Mrs. Hall died of causes unconnected to her work-related
injury . At the time of her death, no award existed in her favor (or, at best, the previous
award became a nullity upon the finality of the Supreme Court opinion on October 14,
1999, per CR 76 .30(2)) . KRS 342.730(3) provides, inter alia, as follows :
[W]hen an employee, who has sustained disability compensable under
this chapter, and who has filed, or could have timely filed, a valid claim in
his lifetime, dies from causes other than the injury before the expiration of
the compensable period specified, portions of the income benefits
specified and unpaid at the individual's death , whether or not accrued or
due at his death, shall be paid, under an award made before or after the
death, for the period specified in this section . . .
(a)
To the widow or widower . . . benefits at fifty percent (50%) of the
rate specified in the award .
(Emphasis added .) Under this statute, after October 29, 1999, the only person entitled
to claim benefits because of Mrs. Hall's work-related injury was her widower, Mr. Hall.
Presumably, KRS 395 .195 and .196 would authorize her personal representative to
claim on behalf of her estate those benefits that accrued prior to her death. However,
while all concerned have treated this case as if the estate were a party, no personal
representative has filed a separate SF 101 or motion to intervene on behalf of Mrs.
Hall's estate .
Apparently, no one apprised the Board of Mrs . Hall's death . Nor has any claim
for benefits been filed by Mr. Hall. Nevertheless, similar to the putative estate, the
parties have treated this case as if Mr. Hall had either filed a separate claim or
intervened . In this respect, the parties, the ALJ, and the board have all relied on
language contained in Whittaker v. Patrick, Ky., No . 2000-SC-1095-WC, slip op . (Sept.
27, 2001), an unpublished opinion, which by law, may not be cited as authority. CR
76.28(4)(c) ("Opinions that are not to be published shall not be cited or used as
authority in any other case in any court of this state.").
May 2, 2000 - Pursuant to the mandate expressed in this Court's opinion of
September 23, 1999, the ALJ made additional findings of fact and rendered a new
opinion awarding Mrs. Hall $253.34 per week in lifetime benefits for permanent total
disability, apportioned 50% against the employer and 50% against the Special Fund .
Again, the award ordered the employer's portion of the benefits to be paid "for the
number of weeks proportionate to its respective liability" before any payments were due
from the Special Fund . Hall v. Peyton's Inc., Claim No . 93-27664, slip op . at 5 (May 2,
2000).
July 24, 2000 - The ALJ granted the petitions for reconsideration filed by both
the "plaintiff" and the employer, neither of which is in this record . The order identifies
the plaintiff as "James C . Hall, surviving spouse of Cynthia K. Hall" and amends the
award of May 2, 2000, to read as follows :
[W]eekly benefits in the amount of $253.34, representing the total and
permanent occupational disability, are to be paid to the estate of Cynthia
Hall [though the estate was never made a party] for the period from
October 29, 1993 through her date of death on October 7, 1999 . . . . The
defendant is entitled [to] credit for all benefits heretofore voluntarily
received . From October 8, 1999 and continuing thereafter for the
remainder of Ms. Hall's life expectancy, the defendants are to pay the sum
of $126.67 to James C. Hall, surviving spouse of Cynthia Hall [though he
never filed a claim or a motion to intervene]. . . . All benefits awarded
herein are apportioned equally between the defendant-employer and the
Special Fund, with the defendant employer ordered to pay all benefits
initially, subject to its proportionate share . In the event that Mr. Hall
remarries prior to the expiration of compensable period, benefits are to be
paid pursuant to KRS 342.730(3)(e) .
Hall v. Peyton's Inc . , Claim No . 93-27664, slip op. (July 24, 2000) (emphasis added).
September 20, 2000 - The ALJ also granted the Special Fund's petition for
reconsideration (which is also not in the record), reciting the same language
emphasized in the July 24, 2000, order. The Special Fund appealed, interpreting the
"subject to its proportionate share" language to mean that the Special Fund was liable
for 50% of the income benefits payable from October 23, 1993 - October 7, 1999, even
though those benefits accrued during the employer's initial payment period .
January 24, 2001 - The Board affirmed . With respect to the apportionment of
the award made to the estate, the board distinguished Williamson v. Island Creek Coal
Co . , Ky. App., 899 S .W .2d 499 (1995), relied on our aforementioned unpublished
opinion in Whittaker v. Patrick , supra , and analogized this case to Leeco, Inc. v.
Crabtree , Ky., 966 S.W.2d 951 (1998), which held that the employer was entitled to the
benefit of the former "tier down" provision in KRS 342 .730(4) even though the "tier
down" of benefits would not occur in that case until the Special Fund's payment period .
Id . at 955-56 . Here, the exact amount of benefits owed to the estate was known at the
time of the award and the employer had not yet paid the full amount sought to be
apportioned to the Special Fund . (The employer did not seek apportionment of the
benefits that accrued from October 29, 1993 - March 25, 1995, the period for which the
employer had already paid the entire amount owed, but only of those benefits that
accrued from March 26, 1995 - October 7, 1999, the period during which the employer
had paid only less than 50% of the entire amount now deemed to be owed).
KRS 342 .125 prohibits . . . a reopening from affecting benefits previously
paid . However, when no such benefits have been paid, apportionment ab
initio is appropriate . Newberg v. Cash , Ky . App., 854 S.W .2d 791 (1993) .
Peyton's Inc. v . Hall , Claim No . 93-27664, slip op . at 7 (Jan . 24, 2001). Although the
award was not a reopened award but a new award rendered after remand, the same
principle applies .
October 26, 2001 - The Court of Appeals affirmed, adopting the Board's opinion
verbatim, also citing and quoting our aforementioned unpublished opinion in Whittaker
v. Patrick , supra :
We conclude, therefore, that where a worker dies before receiving
an award of income benefits, the benefits that accrue before his death and
any benefits that continue to his survivors after his death must both be
viewed by the ALJ as parts of the same award . As a result, any benefits
that are payable to the worker's estate and any remaining benefits that are
payable to survivors must be treated as parts of a whole, and the sum of
those benefits must be apportioned .
Whittaker v. Hall , Ky. App ., No. 2001-CA-000390-WC, slip op. at 9 (Oct. 26, 2001)
(quoting Whittaker v. Patrick, supra ). The Court of Appeals then concluded, "[T]he
Board did not err in ordering the known value of the award to be apportioned equally
between Peyton's and the Special Fund ." Id . As no further appeal was taken, these
holdings are now the law of this case . Pennwalt Corp. v. Beale , Ky. App., 840 S .W.2d
830, 832 (1992) .
Meanwhile . .
May 27, 2001 - Mr. Hall remarried . KRS 342 .730(3)(e) provides that when an
employee entitled to benefits dies from causes unrelated to the work-related accident
and the widow or widower subsequently remarries, benefits are payable :
To the widow or widower upon remarriage, up to two (2) years, benefits as
specified in the award and proportioned under paragraphs (a) or (b) of this
subsection, if the proportioned benefits remain unpaid, to be paid in a
lump sum .
The facts that generated the "motion for clarification" were (1) the Special Fund's
continued refusal pay its apportioned share of the benefits owed to Mrs. Hall's estate
-7-
from March 26, 1995 - October 7, 1999 ; (2) the Special Fund's refusal to pay its
apportioned share of the survivor's benefits owed to Mr. Hall from October 8, 1999 May 21, 2001 ; and (3) the Special Fund's refusal to pay its apportioned share of the
two-year lump sum benefit payable to Mr. Hall after May 21, 2001 . In each instance,
the actual value of each award is now known and the amounts awarded remain unpaid .
January 28, 2002 -Again relying on our aforementioned unpublished opinion in
Whittaker v. Patrick , the ALJ held that the Special Fund was liable for its apportioned
share of all three awards.
June 26, 2002 - The Board affirmed, holding, "[T]he contingency of the
widower's remarriage necessitated a reopening so that the award could conform with
reality . . . .
[B]ased on Whittaker v. Patrick, the award required modification so as to
conform with the reality of the widower's remarriage ." Whittaker v. Hall , Claim No . 9327664, slip op . at 11 (June 26, 2002).
December 23, 2002- The Court of Appeals affirmed, adopting the Board's
opinion verbatim and further holding that the law of the case doctrine precluded it from
reconsidering its previous opinion of October 26, 2001 . Whittaker v . Hall, Ky. App., No .
2002-CA-001586-WC, slip op. at 12 (Dec. 20, 2002).
Because KRS 342 .325 vests the ALJ with jurisdiction to resolve such disputes, I
would affirm the ALJ, the Board, and the Court of Appeals in all respects . Obviously,
the Court of Appeals' opinion of October 27, 2001, is the law of the case with respect to
the apportionment of the award of benefits to the estate . The same reasoning that
upheld that apportionment applies as well to the apportionment of the award of
survivor's benefits owed to Mr. Hall, i.e. , the actual value of benefits owed is now known
and benefits remain unpaid . Since the actual value of two-year lump sum benefits owed
to a widow or widower upon remarriage will always be known, the Special Fund's
argument that the employer must pay the entire lump sum because it falls within the
employer's payment period is specious at best. The ALJ simply conformed the
previously entered award to reality. In contrast, the majority opinion conforms only to
"what might have been" instead of "what is." Peyton's Inc. v. Hall, Claim No . 93-27664,
slip op. at 3 (Jan . 24, 2001).
Accordingly, I dissent.
'Sixprrv'r
C~Vurf of ~rufurhv
2003-SC-0048-WC
ROBERT L . WHITTAKER, DIRECTOR OF
WORKERS' COMPENSATION FUNDS
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-1586-WC
WORKERS' COMPENSATION BOARD NO . 93-WC-27664
V
CYNTHIA K. HALL, DECEASED ; JAMES
C. HALL, SURVIVING SPOUSE OF
CYNTHIA K. HALL ; PEYTON'S, INC . ;
DONNA H . TERRY, ADMINISTRATIVE
LAW JUDGE ; SHEILA C . LOWTHER,
CHIEF ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION ON THE COURT'S OWN MOTION
The petition for rehearing of this Court's opinion rendered January 22, 2004, filed
by Appellee, Peyton's, Inc., is hereby denied .
On the Court's own motion, the caption on page one of the opinion, and page
one of the opinion concurring in part and dissenting in part is modified to show Workers'
Compensation Board instead of Workers' Compensation Funds as an Appellee . New
pages one are substituted in lieu of pages one as originally rendered . Said modification
does not affect the holding of the opinion as originally rendered .
Lambert, C.J . ; Graves, Johnstone, Stumbo, and Wintersheimer, JJ., concur.
Cooper, and Keller, JJ., concur as to modifying the caption, but would grant the petition
for rehearing .
ENTERED : May 20, 2004.
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