HERBERT DIALS v. WOLF CREEK COLLIERIES; HONORABLE ROBERT L. WHITTAKER, Director of the Special Fund; HONORABLE DONNA H. TERRY, Chief Administrative Law Judge; and HONORABLE WALTER TURNER, Commissioner of the WORKERS' COMPENSATION BOARD
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RENDERED:
September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No. 1997-CA-002811-WC
HERBERT DIALS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. 94-40166 and 94-38333
WOLF CREEK COLLIERIES;
HONORABLE ROBERT L. WHITTAKER,
Director of the Special Fund;
HONORABLE DONNA H. TERRY,
Chief Administrative Law
Judge; and HONORABLE WALTER
TURNER, Commissioner of the
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * *
BEFORE:
ABRAMSON, COMBS, and KNOX, Judges.
ABRAMSON, JUDGE:
This is an appeal from an order of the Workers'
Compensation Board ("Board") dismissing the appeal of claimant
Herbert Dials ("Dials") for failure to file a timely notice of
appeal.
Dials insists that because he did not receive prompt
notice of the order overruling his petition for reconsideration
of an order of the Chief Administrative Law Judge ("CALJ"), he
should be allowed to file the notice of appeal within 30 days of
his receipt of that order.
We disagree and affirm.
The facts are not in dispute.
On January 29, 1997,
Dials filed a petition for reconsideration of a final award by
the CALJ.
Although the CALJ entered an order overruling Dials's
petition on February 19, 1997, Dials's counsel states that he did
not receive the order until August 21, 1997.
Dials filed a
notice of appeal with the Board on September 9, 1997, within 30
days of his receipt of the February 19 order.
The Special Fund's
motion to dismiss the appeal as untimely was granted on October
3, 1997, precipitating this appeal.
Although Dials argues that a claimant cannot appeal
from that of which he has no knowledge, the administrative
regulations set out time limitations on rulings which should have
placed him on notice of the need to inquire about the status of
his petition.
Pursuant to 803 KAR 25:010, Section 21(3), the
CALJ was required to issue a ruling within ten days of the date
on which the response to Dials's petition was due.
Because in
this case the respondents had until February 10, 1997 to file
their respective responses, the CALJ was required by law to rule
on Dials's petition by February 20, 1997.
The record shows that
the order denying Dials’s petition was entered on February 19,
1997, and that it was served upon counsel for Dials.
We are convinced that this case falls squarely within
the rationale of Rainwater v. Jasper & Jasper Mobile Homes, Ky.
-2-
App., 810 S.W.2d 63, 64 (1991), in which this Court rejected a
similar attempt to be excused from a prescribed time limit:
Appellant submits that he did not receive a
copy of the Board's opinion until after the
appeal time had run. He admits, however,
receiving a copy of the Order of Submission
from the Board. Both KRS 342.185(3) and 803
KAR 25:011 section 12(13) require the Board
to enter its decision within thirty days of
the issuance of that submission. The order
of submission was dated June 1, 1990.
Accordingly, appellant should have been, at
least, on notice that an opinion had been
rendered prior to his telephone call to the
Board of July 31, 1990. Neither appellant's
good faith admission to inexperience with the
newer procedures in workers' compensation
cases, not his claim of a "good and
compelling issue" upon the merits can give
this Court the jurisdiction or authority to
extend the time for filing a notice of appeal
or petition for review.
(Emphasis added.)
As in Rainwater, the administrative
regulations provide a date certain by which the CALJ had to act
and this clear directive should have put Dials's counsel on
notice to inquire about the status of his petition for
reconsideration.
Accordingly, the failure to receive a copy of
that order does not constitute excusable neglect or authorize the
Board or this Court to extend the time for prosecuting an appeal
to the Board.
The decision of the Workers' Compensation Board is
affirmed.
ALL CONCUR.
-3-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Miller Kent Carter
Pikeville, Kentucky
Bennett Clark
Lexington, Kentucky
David W. Barr
Louisville, Kentucky
-4-
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