HAROLD RONALD BALL; and JOHNNIE L. TURNER v. DIXIE FUEL COMPANY; HON. RON CHRISTOPHER, Director of Special Fund; HON. IRENE STEEN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: March 20, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
97-CA-1124-WC
HAROLD RONALD BALL;
and JOHNNIE L. TURNER
APPELLANTS
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 93-20409
v.
DIXIE FUEL COMPANY;
HON. RON CHRISTOPHER,
Director of Special Fund;
HON. IRENE STEEN,
Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
* * * * * * *
BEFORE:
GUDGEL, Chief Judge; BUCKINGHAM and KNOPF, JUDGES.
KNOPF, JUDGE:
This is an appeal from an opinion and order by the
Workers' Compensation Board (Board), affirming an opinion and
award on reopening by the Administrative Law Judge (ALJ).
affirm in part, reverse in part, and remand for further
proceedings.
We
On October 15, 1993, the appellant, Harold Ronald Ball,
filed a claim for adjustment of benefits based upon two (2)
occupational injuries.
The first claim involved a low back
injury which occurred on February 8, 1992.
The second claim
involved an injury to Ball's arm and chest occurring on May 12,
1993.
Ball was employed by the appellee, Dixie Fuel Company
(Dixie Fuel) at the time of both injuries.
Dixie Fuel was
insured by Old Republic Insurance Company (Old Republic) for the
1992 injury and by Wausau Insurance Company (Wausau) for the 1993
injury.
The two (2) injuries were consolidated and settled for a
twenty percent (20%) occupational disability.
Ball subsequently
returned to work for Dixie Fuel.
On January 3, 1996, Ball filed a motion to re-open his
previously settled claim, seeking an order directing Dixie Fuel
to provide certain medical treatment.
The motion was served on
counsel for each of Dixie Fuel's carriers.
Old Republic provided
counsel to Dixie Fuel with respect to the 1992 low back injury,
and Wausau provided counsel to Dixie Fuel with respect to the
1993 injury.
Ball asserted that he had suffered an increase in
occupational disability relative to his 1992 low back injury, and
that he developed carpal tunnel syndrome as a result of his 1993
arm injury.
During the course of the proceedings on reopening,
Ball filed an amended Form 101, alleging that he was struck by a
rockfall on June 21, 1995, which caused additional injury to his
back, neck, and shoulder.
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Following submission of evidence, the ALJ entered an
opinion and award on December 20, 1996.
The ALJ found that Ball
failed to prove any increase in occupational disability resulting
from his 1992 low back injury.
She found Ball's current shoulder
symptoms to be related to his initial injury in May of 1993, and
authorized whatever surgical procedure an orthopedic surgeon
recommended.
She further determined that Ball's carpal tunnel
problems were not related to his May 1993 injury, referring to
Dr. Zerga's testimony that on nerve conduction studies the
symptoms were worse on the left than on the right, while the
injury in 1993 was only to Ball's right side.
She also
determined that Ball had failed to prove any increase in
occupational disability since his original settlement, referring
to the fact that he was currently capable of performing his job
as a shuttle operator and that whatever surgery he undertakes to
correct his shoulder problem would hopefully decrease his
occupational disability.
The ALJ also denied Ball's motion to
award attorney's fees and costs of the motion to reopen.
The service list on the ALJ's opinion and award
indicates that it was sent to Ball, counsel for the Special Fund,
and counsel for Old Republic.
On January 10, 1997, Ball filed a
notice of appeal to the Board, naming Dixie Fuel, the ALJ, and
the Special Fund as respondents.
The notice of appeal to the
Board contains a certificate indicating that it was mailed to
counsel for Dixie Fuel as insured by Old Republic, to counsel for
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the Special Fund and to the ALJ.
However, no such service is
certified upon counsel for Dixie Fuel as insured by Wausau.
On February 11, 1997, Ball moved the Board to amend to
add Johnnie L. Turner as petitioner, and raising the issue of the
denial of Ball's motion to award attorney's fees and costs.
Turner was Ball's counsel during the proceedings before the ALJ.
The Board granted the motion to add Turner as petitioner on
February 28, 1997.
However, on March 12, Wausau's counsel for
Dixie Fuel appeared to object to the motion, asserting, "[t]he
petitioner seeks to accomplish the joinder of a new respondent
under the guise of amending a prior petition."
The Board affirmed the ALJ's award in an opinion and
order dated April 11, 1997.
The Board concluded that Ball failed
to properly perfect his appeal against Dixie Fuel as insured by
Wausau.
Therefore, the Board concluded that the issues relating
to attorney's fees and costs were not properly presented.
The
Board further found that substantial evidence existed supporting
the ALJ's finding that Ball failed to prove a change in his
occupational disability.
The Board also affirmed the ALJ's
finding that Ball failed to prove that his carpal tunnel syndrome
was work-related.
Ball now appeals to this court.
Ball first argues that his notice of appeal served upon
Dixie Fuel was sufficient to bring all issues relating to Dixie
Fuel before the Board.
We agree.
Essentially, the Board held
that Dixie Fuel as insured by Old Republic and Dixie Fuel as
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insured by Wausau are separate parties for purposes of the notice
of appeal.
As correctly noted by the Board, the purpose of CR
73.03 is to give the opposing party fair notice of the pendency
of the appeal.
Blackburn v. Blackburn, Ky., 810 S.W.2d 55
(1991).
Yet generally, workers' compensation insurance carriers
are not parties to a workers' compensation claim.
Rather, they
provide representation on behalf of their insured for injuries
alleged to have occurred during the period for which coverage was
in effect.
The carrier's liability to the employee is
contractual based upon the contract of insurance with the
employer.
Thus, the only necessary parties to the appeal from
the ALJ to the Board were Ball, Dixie Fuel, and the ALJ.
These
parties were all named on the notice of appeal.
We believe that the Board confused the issue of who is
a necessary party to an appeal with the issue of to whom must a
copy of the notice of appeal be sent.
Dixie Fuel is one (1)
party represented by two (2) separate counsel, each for separate
portions of the claim.
CR 73.03(1) requires that the notice of
appeal "shall contain a certificate that a copy of the notice has
been served upon all opposing counsel, or parties, if
unrepresented, at their last known address."
Ball failed to send
a copy of the notice of appeal to one (1) of Dixie Fuel's two (2)
counsel of record.
We do not excuse the failure by Ball's counsel to mail
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a copy of the notice of appeal to Wausau's counsel.
Ralph D.
Carter was named as counsel for Dixie Fuel as insured by Wausau.
He participated throughout the proceedings before the ALJ as
counsel for Dixie Fuel as insured by Wausau.
We presume that Mr.
Carter's name was left off the service list on the ALJ's opinion
and award due to an oversight.
Regardless, the party filing the
notice of appeal has a duty to provide a copy of the notice to
all counsel of record.
Nonetheless, this defect in service was not
jurisdictional.
The failure of a party to file a timely notice
of appeal shall result in a dismissal of the appeal.
However,
failure to comply with other rules relating to appeals shall not
affect the validity of the appeal, but may be grounds for such
action as the appellate court deems appropriate.
CR 73.02(2).
When a notice of appeal contains non-jurisdictional defects, the
doctrine of substantial compliance may be applied.
City of
Devondale v. Stallings, Ky., 795 S.W.2d 954, 957 (1990).
The Board treated Dixie Fuel as two (2) separate
entities, each compartmentalized by its separate representation
by different workers' compensation carriers, and each without
knowledge of the other entity's action.
distinction was arbitrary and artificial.
We believe that this
Dixie Fuel was
properly before the Board on the notice of appeal.
Furthermore,
neither the statutes nor the administrative regulations require a
petitioner to state the grounds upon which he is appealing an
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ALJ's order.
Therefore, Dixie Fuel cannot be said to have lacked
knowledge that those issues were being appealed.
Finally, there was no evidence that Dixie Fuel's
defense of the appeal was prejudiced by the failure to send a
copy of the notice of appeal to Wausau's counsel.
Under the
circumstances, the Board could have allowed Wausau additional
time to respond to the notice of appeal, or taken other steps as
authorized by CR 73.02(2).
Instead, the Board presumed the error
was jurisdictional, and disallowed the appeal from the ALJ's
denial of attorney's fees and costs.
We hold that this action
was an abuse of discretion.
Upon reviewing the Board's opinion and order, we note
that the Board actually addressed most of the issues relating to
the petition for reopening.
The only issue which the Board
declined to address in its opinion and order was Ball's request
for attorney's fees and costs against Dixie Fuel for unreasonably
refusing to provide medical treatment.
We remand this issue to
the Board for consideration on appeal.
The primary issue on appeal is the ALJ's decision to
deny the motion to reopen.
Ball contends that the ALJ erred as a
matter of law in holding that he had failed to prove an increase
in occupational disability relating to the 1992 injury.
In
reviewing the decision of the ALJ, the Board's function is to
decide whether the evidence is sufficient to support a particular
finding made by the ALJ, or whether such evidence as there was
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before the ALJ should be viewed as uncontradicted and compelling
a different result.
The scope of review in this court 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, 688 (1992).
When the decision of the fact-finder goes against the
person with the burden of proof, his burden on appeal is to show
that the evidence was so overwhelming that finding against him
was unreasonable.
643 (1986).
Special Fund v. Francis, Ky., 708 S.W.2d 641,
Matters involving the weight given to the evidence
and credibility accorded to the witnesses are matters within the
sole province of the fact-finder.
Ky., 695 S.W.2d 418 (1985).
Paramount Foods v. Burkhardt,
The ALJ, as finder of fact, has the
right to believe part of the evidence, and to disbelieve other
parts of the evidence whether it came from the same witness or
the same adversary party's total proof.
Caudill v. Maloney's
Discount Stores, Ky., 560 S.W.2d 15, 16 (1977).
In short, this
court may not substitute its judgment for that of the fact-finder
on the weight of the evidence.
Wolf Creek Collieries v. Crum,
Ky. App., 673 S.W.2d 735, 736 (1984).
While there was some evidence supporting Ball's claim
on reopening, we agree with the Board that the evidence as a
whole did not compel a finding of an increase in occupational
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disability.
The ALJ noted that Ball's testimony regarding the
injuries which he has suffered between 1992 and 1996 was vague
and confusing.
The ALJ found no evidence of an increase in
occupational disability relative to Ball's 1992 low back injury.
There was widely conflicting evidence concerning the effects of
Ball's 1993 injury.
While the ALJ concluded that Ball's shoulder
problems were the result of his 1993 injury, she concluded that
they did not constitute an increase in his occupational
disability.
The ALJ further found that with medical treatment
for his shoulder problems, Ball would not experience any
additional impairment in the type of work he is currently able to
perform.
Given the evidence of record, the ALJ's finding was not
clearly erroneous.
As to the carpal tunnel syndrome, the ALJ found that
Ball had failed to prove that it was work-related.
We agree with
the Board that there was medical testimony which would support
either a finding that his carpal tunnel was work-related or that
it was not work-related.
Moreover, the ALJ noted that Ball "has
not even filed a claim per se for carpal tunnel syndrome, acute
or repetitive, but merely attempts to assert this through this
proceeding, together with the rest of his reopening."
There was
no medical testimony that Ball's carpal tunnel symptoms were
related to the injuries involved in this reopening, although Dr.
Zerga testified that it might be related to his occupation.
conclude that the ALJ's finding was supported by substantial
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We
evidence and should not be disturbed.
Accordingly, the decision of the Workers' Compensation
Board is affirmed in part, reversed in part, and remanded for a
consideration of the issue of Ball's attorney's fees and costs on
reopening.
ALL CONCUR:
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BRIEF FOR APPELLANT
HAROLD RONALD BALL:
BRIEF FOR APPELLEE DIXIE FUEL
COMPANY (BY OLD REPUBLIC):
Ronald C. Cox
Buttermore, Turner &
Boggs PSC
Harlan, Ky.
Antony Saragas
Huff Law Office
Harlan, Ky.
BRIEF FOR APPELLEE DIXIE FUEL
COMPANY (BY WAUSAU):
Ralph D. Carter
Barret, Haynes, May, Carter
& Roark, PSC
Hazard, Ky.
BRIEF FOR APPELLEE
SPECIAL FUND OF KENTUCKY:
David W. Barr
Louisville, Ky.
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