WHITAKER COAL COMPANY v. SCOTT HAZLETT; TIM WILSON; W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: July 2, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-2642-WC
WHITAKER COAL COMPANY
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-94-012588
v.
SCOTT HAZLETT; TIM WILSON;
W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
* * *
BEFORE:
EMBERTON, GARDNER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Whitaker Coal Company (Whitaker) petitions for
review of a decision of the Workers' Compensation Board (Board).
Whitaker argues that the award of attorney's fees to Tim Wilson
(Wilson), for the representation of Scott Hazlett (Hazlett), who
received retraining incentive benefits (RIB), was premature
because there was no evidence that Hazlett had either ceased coal
mine employment or enrolled in a bona fide training program.
Having reviewed the record and the law, we reverse and remand.
Hazlett filed his claim for benefits on March 28, 1994.
Statutory amendments to KRS 342.732 went into effect April 4,
1994.
On December 16, 1994, the administrative law judge (ALJ)
awarded Hazlett a RIB, but because he was still working for
Whitaker, the award was held in abeyance pending the final
resolution of whether the amended statute was retroactive.
Thornsbury v. Aero Energy, Ky., 908 S.W.2d 109 (1995).
Hazlett apparently moved for an order directing the
payment of benefits because he had been subject to a company-wide
layoff March 29, 1995.
This motion is not part of the record,
but a renewed motion for same was made, to which Whitaker
responded that nothing in the record indicated that Hazlett had
not subsequently engaged in the severance and processing of coal.
The ALJ issued an order on February 3, 1997, stating that because
Hazlett had been laid off prior to the amendment, the order was
removed from abeyance, and Whitaker was ordered to begin paying
the RIB benefits for 208 weeks.
Thereafter, Wilson moved for an attorney fee in the
amount of $6,116.57.
Whitaker responded that as of February 17,
1997, its attorney had been told by Wilson that Hazlett was
working in the coal mining industry.
Nevertheless, the ALJ
entered an order awarding the attorney fee.
Whitaker appealed the award of attorney's fee to the
Board, who, after holding it in abeyance pending our decision in
the unpublished case of Tall Timber Coal Co. v. Yates, 96-CA-1844
(May 23, 1997), affirmed the award:
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It is obvious that a great deal of
confusion has existed in this claim. Because
we believe that the ALJ's order directing
payments to be made to Hazlett is now a final
and enforceable award, the decision in Tall
Timber Coal Co. vs. Yates is inapplicable.
Thirty (30) days after the February 3, 1997
order, Whitaker became obligated to pay
directly to Hazlett RIB benefits. Upon that
order['s] becoming final, Wilson became
vested in his entitlement to the full
attorney fee. Whitaker alleges Hazlett is
now again working in the severance and
processing of coal. That allegation,
however, has no affect on the ALJ's
February 3, 1997 order, which remains
enforceable and in effect. Whether a future
reopening or other action on the part of
Whitaker will affect the ALJ's February 3,
1997 order is not before us. However, even
if that remedy were available to Whitaker,
future contingencies do not affect the
entitlement of the attorney to an attorney
fee that has become vested. See Stephens vs.
Denairo Mining Co., Inc., Ky., 833 SW2d 383
(1992); and Elkhorn Stone Co. vs. Webb, Ky.,
478 SW2d 720 (1972).
Because we find that the ALJ committed two errors of
law, we reverse.
First, the ALJ determined in the February 3,
1997 order that Hazlett had been laid off prior to the amendment.
In fact, the amendment became effective April 4, 1994, and
Hazlett was laid off March 29, 1995.
Therefore, the new statute
forbidding the payment of RIBs directly to the miner, unless he
is no longer working in the mining industry in the severance and
processing of coal through no fault of his own, applies to
Hazlett's claim.
Second, even when Hazlett was laid off on March 29,
1995, he had the affirmative duty to prove that he had met one of
the conditions for collection of the RIB award.
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Hazlett did not
even provide an affidavit to the effect that he was no longer
working as a coal miner through no fault of his own.
He simply
submitted a motion stating that he had been laid off by Whitaker.
Whitaker responded, admitting that it last employed Hazlett
March 29, 1995, but arguing that the record was devoid of
evidence that Hazlett was not working in the coal mining industry
for another employer since the layoff.
We believe that before a claimant, who has been found
entitled to a RIB award, but not entitled to collection at the
time of the award, may receive the award, he must at least submit
an affidavit stating, for example, that he was laid off on a
certain date and that he has not since engaged in the mining
industry in the processing and severance of coal.
A statement
from the last employer, verifying the layoff, would also assist
the trier-of-fact.
By contrast, Hazlett did not provide an affidavit and
nowhere stated that he is no longer working in the mining
industry since the layoff.
Whitaker raised these very points in
its response to the motion directing payment.
While it is true that Whitaker did not appeal the order
to the Board, its appeal of the award of attorney's fee is based
upon the award of RIB benefits.
Furthermore, we are empowered to
correct what we perceive to be a palpable error, even if not
sufficiently raised or preserved for review by appellant, if we
believe manifest injustice results from the error.
CR 61.02.
In this case, we believe manifest injustice results
4
from the ALJ's errors.
Hazlett is not entitled to collect his
RIB award until he meets the requirements stated above.
Once he
establishes entitlement to collection, he is entitled only to the
balance of the 208 weeks from the date the original award becomes
final or the appellate process has been exhausted.
Mining, Ky., 949 S.W.2d 584, 588 (1997).
Meade v. Spud
Wilson is not entitled
to an attorney fee until Hazlett is found entitled to collection
of his award.
For these reasons, the decision of the Workers'
Compensation Board is reversed and remanded for further
consideration consistent with this opinion.
GARDNER, JUDGE, CONCURS.
EMBERTON, JUDGE, DISSENTS BY SEPARATE OPINION.
EMBERTON, JUDGE, DISSENTING.
I respectfully dissent.
Upon the finality of the February 3, 1997, order of the
Administrative Law Judge, the right to receive payment of the fee
became vested in Mr. Wilson.
Thereafter, whatever contingency
may affect payment of the benefits award to Mr. Hazlett has no
bearing on the right of Mr. Wilson to be paid his fee.
I would affirm the Workers' Compensation Board.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES, SCOTT
HAZLETT AND TIM WILSON:
Charles W. Berger
Harlan, Kentucky
Tim Wilson
Lexington, Kentucky
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