SOUTH AKERS MINING V. TAMMY CHARLES, INDIVIDUALLY AND/OR AS THE ADMINISTRATRIX OF THE ESTATE OF RONNIE CHARLES, ET AL.
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
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RENDERED : OCTOBER 23, 2008
NOT TO BE PUBLISHED
~~~x~a~e fa~aux~ of
2007-SC-000649-WC
SOUTH AKERS MINING
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2007-CA-000534-WC
WORKERS' COMPENSATION BOARD NO. 99-65703
TAMMY CHARLES, INDIVIDUALLY AND/OR
AS THE ADMINISTRATVX OF THE ESTATE OF
RONNIE CHARLES ;
HONORABLE DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal concerns the breadth of an Administrative Law Judge's (ALJ's)
authority under Wheatley v. BD ant Auto Service , 860 S.W .2d 767 (Ky. 1993), to reopen
a final award based upon an alleged mistake of law.
Following the decision in AIG/AIU Insurance Company v. South Akers Mining
Company, LLC, 192 S .W.3d 687 (Ky. 2006), which concerned an unrelated matter, an
ALJ granted the employer's motion to reopen in order to correct an alleged mistake in
the calculation of survivors' benefits and the additional 15% compensation awarded for
the employer's safety violation . The Workers' Compensation Board reversed, holding
that the principle of res iudicata barred a reopening on the ground of mistake after the
previous appeal. The Court of Appeals affirmed .
Appealing, the employer asserts that Wheatlev v. Bryant, supra, and Whittaker v.
Cecil, 69 S .W.3d 69, 72 (Ky. 2002), supported the decision to reopen because the AU
corrected a mistake in applying the law as it existed at the time of the initial award. We
disagree . The principle of res iudicata barred a subsequent reopening on the ground of
mistake because the effect of KRS 342 .750(3) on calculating a survivors' award under
KRS 342.750(1) was unresolved at the time of the initial proceeding . The parties
disputed the method for calculating the survivors' award in the initial proceeding and the
employer failed to appeal the unfavorable decision .
Ronnie Charles was killed in a roof fall on September 16, 1999, while working in
the defendant-employer's coal mine. In September 2003 the claimants, his widow and
dependent child, were awarded a combined $282.22 in weekly survivors' benefits as
well as a 15% increase in compensation under KRS 342 .165(1) due to the employer's
safety violation . They asserted in a petition for reconsideration that KRS 342 .750(1)(b)
entitled them to combined survivors' benefits equal to 60% of Ronnie's average weekly
wage or $369.40. The employer disagreed and responded as follows:
[KRS 342.750] . . . provides at subsection 3 for a maximum
benefits [sic] based on the state average weekly wage . The
1999 maximum for a widow and one child is $365 .40. The
average weekly wage was stipulated at $613.50, and 45%
of that is $276 .08 and 15% of that is $92 .03. That amounts
to a total of $368.11, which then reduces to the maximum
payout based on the state's average weekly wage of
$365.40. Therefore, benefits are capped at $365.40 . . . .
(emphasis original) .
Although the AU granted the claimants' petition and amended the award, the employer
failed to appeal. The sole issue raised in AIGIAIU Insurance Co. v. South Akers Mining
Co . , supra, concerned a carrier's liability for the additional 15% compensation under
KRS 342.165(1).
On March 24, 2006, the employer filed a motion to reopen on the ground of
mistake. Relying on a different portion of KRS 342.750(3) than in 2003, the employer
asserted that survivors' benefits must be based on a percentage of the average weekly
wage of the state rather than Ronnie's average weekly wage and that the combined
survivors' benefit should have been $292 .32. Relying on Wheatley v. B!)Lant, supra, the
employer asserted that the method used to calculate the initial survivors' benefit was a
mistake of law for which KRS 342 .125 authorized reopening. The claimants argued
that the employer's failure to appeal the initial calculation precluded reopening, but the
AL agreed with the employer and amended the award.
In Wheatley v. Bryant, supra at 769, the court determined that an AL did not err
by reopening a final award that was not appealed in order to correct his admitted
mistake in applying the law. The decision relied in part on Stearns Coal & Lumber Co .
v. Vanover , 262 Ky. 808, 91 S.W.2d 518, 519 (1936), which explains that a mistake of
law may be corrected on reopening "unless the case has been passed on by the court
on appeal." In Whittaker v. Cecil , 69 S.W.3d 69, 72 (Ky. 2002), the court addressed the
doctrine of resjudicata in the context of a reopening based on an alleged mistake of
law in the initial award . The court explained that an AL may reopen a final award in
order to correct a mistake in applying the law as it existed on the date of injury but not
to consider a subsequent interpretation of the law. The court reasoned that a corollary
to the res judicata doctrine prevents a party from splitting a cause of action . Thus, a
final judgment precludes subsequent litigation not only of the issues on which the court
pronounced judgment but also of any sub-issues or other issues that could have been
raised with the exercise of due diligence. The court explained that the application of
these principles is grounded in the fact that there is an extensive procedure for taking
appeals and that an award that is enforceable as a judgment under KIRS 342.305
should not be disturbed absent a very persuasive reason .
This is not a case such as Wheatley v. BDLant, suosw in which the AU erred by
applying a version of KIRS 342n 730(l) that no longer remained effective on the date of
injury . The AU noted in the present case that no change in the law occurred after
September 30, 2003, and granted the employees motion, stating that it simply pointed
out that the initial award was calculated incorrectly under KIRS 342.750 . What the AU
failed to consider is that the effect of KIRS 342 .750(3) was unresolved in 2003 because
no judicial decision had addressed the matter. Moreover, the parties disputed the effect
of KIRS 342 .750(3) on the application of KIRS 342 .750(l) in the initial proceeding, but
the employer failed to appeal the unfavorable decision . At reopening the employer
focused on a different portion of KIRS 342.750(3) than in the initial proceeding but,
nonetheless, raised an argument that could have been raised in the initial proceeding .
This is the type of reopening that Stearns Coal & Lumber Co. v. Vanover, supra ,
precludes and is not the type of reopening that Wheatley v. Brunt, suora, authorizes .
The decision of the Court of Appeals is affirmed .
Minton, CJ ; Cunningham, Noble, Schroder, Scoff and Venters, JJ ., concur.
Abramson, J., not sifting .
COUNSEL FOR APPELLANT,
SOUTH AKERS MINING :
JAMES GORDON FOGLE
FERRERI & FOGLE
203 SPEED BUILDING
333 GUTHRIE GREEN
LOUISVILLE, KY 40202.
COUNSEL FOR APPELLEE,
TAMMY CHARLES, INDIVIDUALLY, AND/OR ADMINISRATRIX
OF THE ESTATE OF RONNIE CHARLES :
MILLER KENT CARTER
MILLER KENT CARTER & MICHAEL LUCAS, PLLC
131 DIVISION STREET
P .O. BOX 852
PIKEVILLE, KY 41502
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