ROBERT L. WHITTAKER, DIRECTOR OF THE SPECIAL FUND V. CLYDE REEDER; EASTOVER MINING COMPANY; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000973-WC
ROBERT L. WHITTAKER,
DIRECTOR OF THE SPECIAL FUND
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-79-06778
v.
CLYDE REEDER;
EASTOVER MINING COMPANY;
HONORABLE DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE;
AND THE WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
The Special Fund appeals from a March 23, 1998,
order of the Workers’ Compensation Board reversing an order by
the Administrative Law Judge and remanding for recalculation of
income benefits payable by the Fund and by Eastover Mining
Company, a nominal appellee herein, to Clyde Reeder, the appellee
in substance.
The Special Fund maintains that the Board has
exceeded its authority as an appellate tribunal by considering
sua sponte a purported error not otherwise raised in the
proceedings.
The Special Fund also maintains that the Board,
along with the ALJ, misapplied the law governing recalculation of
benefits following a finding, upon reopening, of increased
partial disability.
For the reasons that follow, we are
persuaded that the Board’s sua sponte consideration of a palpable
error was within its authority, and that its remand in light of
that error correctly applied the pertinent law.
Accordingly, we
affirm the Board’s order.
While working for Eastover Mining Company in 1978,
Clyde Reeder suffered a work-related injury to his back.
In
February 1979 he duly applied for disability benefits to the
“old” Workers’ Compensation Board, and by order entered December
22, 1980, the old Board found him to be 50% (fifty-percent)
permanently occupationally disabled.
15% (fifteen-percent) of
this disability was deemed non-compensable; 15% (fifteen-percent)
was assigned to Eastover; and the remaining 20% (twenty-percent)
was assigned to the Special Fund.
Under the benefit statute (KRS
342.730) in effect at that time, Reeder was entitled to a weekly
benefit, for as long as he remained disabled, equal to the lesser
of $112.00 (one-hundred twelve dollars) or an amount calculated
as follows:
Average Weekly Wage X a Statutory Multiplier
X Percentage of Compensable Disability.
See C.E. Pennington Co. v. Winburn, Ky., 537 S.W.2d 167 (1976)
(discussing this calculation).
Instead of making this
calculation and comparing the result with the statutory maximum,
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however, the old Board simply multiplied the statutory maximum by
Reeder’s compensable percentage of disability and arrived at an
award of $39.20 per week, which it then apportioned between
Eastover and the Special Fund.
Reeder sought administrative
reconsideration of this award, and he appealed to circuit court.
He did both on the ground that he should have been found totally
disabled.
By order entered July 17, 1981, the circuit court
affirmed the Board’s determination of the extent of Reeder’s
disability.
In October 1993, Reeder settled the balance of his
claim with both Eastover and the Special Fund for a lump sum of
$17,000.00 (seventeen thousand dollars), apportioned $9,000.00
(nine thousand dollars) and $8,000.00 (eight thousand)
respectively.
Then in January 1997, alleging that his condition
had worsened and that his disability had increased, Reeder filed
the instant motion to reopen his 1979 award.
The ALJ found that
Reeder’s disability had increased to 60% (sixty-percent).
He
apportioned the additional 10% (ten-percent) disability in the
same manner as the original award and so determined that Eastover
and the Special Fund would thenceforth owe Reeder $20.16 and
$26.88 respectively per week.
All the parties complained to the Board.
Eastover and
the Special Fund maintained that the ALJ had failed to give
proper consideration to the 1993 settlement.
That settlement,
they insisted, had disposed of their liability for all of
Reeder’s benefits except those based on the newly determined 10%
(ten-percent) disability.
Accordingly, they argued that they
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should not have been ordered to pay more than $3.36 and $4.48 per
week, respectively.
Reeder complained that the ALJ should have
found that he, Reeder, had become totally disabled.
The Board denied Reeder’s appeal.
It found that
substantial evidence supported the ALJ’s determination of the
extent of his disability.
Before ruling on Eastover’s and the
Special Fund’s appeals, however, the Board noted the mistake
mentioned above concerning the original miscalculation of
Reeder’s benefits.
In light of that mistake, the Board ruled on
its own motion that Reeder’s benefits should be recalculated
according to the correct formula.
Application of that formula
would require a determination of Reeder’s average weekly wage,
and so the Board remanded the claim to the ALJ for that purpose.1
The Board then ruled that although Eastover and the Special Fund
were entitled to credit for the full amount of their 1993
settlement, that settlement was for no more than the amount
incorrectly awarded in 1980.
Upon determination of the correct
amount, Eastover and the Special Fund would be liable,
prospectively, not only for the benefits associated with Reeder’s
increased disability but also for the difference between what
should have been awarded originally and what had been awarded.
Reeder has not appealed from the Board’s ruling, so we
may accept its finding that the extent of Reeder’s disability was
appropriately determined.
Eastover and the Special Fund complain
1
Although the record was not sufficient to permit the Board
to calculate definitively the benefit to which Reeder was
entitled, it estimated the amount as at least $85.00 per week and
possibly as much as $112.00 per week.
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that the Board exceeded its authority by raising the benefit
miscalculation issue when none of the parties had done so and the
ALJ had been given no opportunity to address it.
They complain
further that, even if the recalculation of Reeder’s award might,
in other circumstances, be appropriate, the 1993 settlement
renders recalculation in this case moot.
The settlement, they
insist, was meant to resolve 100% (one hundred percent) of
Reeder’s then existing claim, whatever the amount of that claim
might in fact have been.
Eastover and the Special Fund thus raise both a
procedural and a substantive objection to the Board’s ruling.
The procedural objection--that the Board does not have authority
to scour the record for errors the parties have not seen fit to
address--not only raises fundamental questions about the nature
of the Board, but also raises important questions about the
relationship of the Board to the courts.
We begin our
discussion, therefore, by recalling that administrative bodies,
such as the Workers’ Compensation Board, derive their authority
to make and enforce rules solely from the General Assembly.
Separation of powers concerns require both that within its
designated area the Board be accorded wide discretion to carry
out its legislative mandate and, on the other hand, that it be
permitted neither to exceed nor to disregard that mandate.
Kerr
v. Kentucky St. Bd. of Registration for Professional Engineers
and Land Surveyors, Ky. App., 797 S.W.2d 714 (1990); American
Beauty Homes Corporation v. Louisville and Jefferson County
Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964).
-5-
In
reviewing agency adjudications, courts owe deference not only to
agency fact-finding, but also to the agency’s interpretation of
its enabling legislation and its own rules.
Graybeal v. McNevin,
Ky., 439 S.W.2d 323 (1969); Goodwin v. City of Louisville, 309
Ky. 11, 215 S.W.2d 557 (1948).
Furthermore, although the system provided by the
General Assembly for adjudicating workers’ compensation claims
has often been compared to a court system, see e.g. Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992), and
although this analogy is apt for many purposes, it is important
to remember that the Board is not a court and is not bound,
unless through legislation or regulation, by the rules of civil
procedure.
Western Baptist Hospital, supra, (concurring opinion
by Justice Combs); Board of Education of Ashland School District
v. Chattin, Ky., 376 S.W.2d 693 (1964) (dissenting opinion by
Judge Montgomery).
This is not to say that such doctrines as
error preservation, res judicata, and law of the case have no
application to administrative tribunals.
They do have.
United
States v. Utah Constr. & Min. Co, 384 U.S. 394, 86 S. Ct. 1545,
16 L. Ed. 2d 642 (1966); Smith v. Dixie Fuel Co., Ky., 900 S.W.2d
609 (1995); Pennwalt Corporation v. Beale, Ky. App., 840 S.W.2d
830 (1992); Keefe v. O.K. Precision Tool & Die Co., Ky. App., 566
S.W.2d 804 (1978).
It is to say, however, that these doctrines
need not function in the administrative context precisely as they
do in the judicial one.
Smith, supra; Beale v. Faultless
Hardware, Ky., 837 S.W.2d 893 (1992); Oubre v. District of
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Columbia Department of Employment Services, 630 A.2d 699 (D.C.
1993).
With these general principles in mind, we turn to the
specific question of the Board’s authority to reverse an ALJ’s
order on grounds not previously raised.
KRS 342.285, Appeal to
Workers’ Compensation Board, provides in pertinent part as
follows:
(1) An award or order of the administrative
law judge as provided in KRS 342.275, if
petition for reconsideration is not filed as
provided for in KRS 342.281, shall be
conclusive and binding as to all questions of
fact, but either party may in accordance with
administrative regulations promulgated by the
commissioner appeal to the Workers’
Compensation Board for the review of the
order or award.
(2) No new or additional evidence may be
introduced before the board except as to the
fraud or misconduct of some person engaged in
the administration of this chapter and
affecting the order, ruling, or award, but
the board shall otherwise hear the appeal
upon the record as certified by the
administrative law judge and shall dispose of
the appeal in summary manner. The board
shall not substitute its judgment for that of
the administrative law judge as to the weight
of evidence on questions of fact, its review
being limited to determining whether or not:
(a) The administrative law judge acted
without or in excess of his powers;
(b) The order, decision, or award was
procured by fraud;
(c) The order, decision, or award is not in
conformity to the provisions of this chapter;
(d) The order, decision, or award is clearly
erroneous on the basis of the reliable,
probative, and material evidence contained in
the whole record; or
(e) The order, decision, or award is
arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion. . . .
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Usually, of course, one or more of these defects in the
ALJ’s order will be alleged by a party, and it is the allegation
of error that gives rise to the Board’s review.
Parties,
furthermore, are strongly encouraged to raise their objections
before the ALJ, not only because it is more efficient to correct
mistakes as early as possible, but also because in that way the
reviewing Board may consider the ALJ’s explanation of his or her
decisions.
Unlike appellate courts, however, the Board has
general authority to review allegations of error raised by the
parties for the first time on administrative appeal.
Dixie Fuel Co., supra.
Smith v.
Does this authority extend to the
consideration of errors which have not been objected to at all?
For courts, of course, the answer would ordinarily be
no: “A reviewing court should limit its review to the issues
raised by the parties, as it is possible for a party to waive
assignments of error, either expressly or impliedly.”
Mills, Ky. App., 733 S.W.2d 756, 757 (1987).
Rainey v.
It has been held,
moreover, that sua sponte rulings are improper unless the parties
are first given notice and an opportunity to be heard.
Storer
Communications of Jefferson County, Inc. v. Oldham County Board
of Education, Ky. App., 850 S.W.2d 340 (1993).
Eastover and the
Special Fund, however, have not objected to the Board’s ruling on
these grounds.
Assuming, therefore, that the requirements of due
process were satisfied, we are persuaded, notwithstanding the
contrary rule for courts, that the Board had the authority to
raise the miscalculation issue sua sponte and to modify the ALJ’s
order in light thereof.
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Our conviction is based upon the General Assembly’s
apparent intent that the Board actively participate, along with
the arbitrators and ALJ’s, not merely in providing a neutral
forum wherein workers and employers can dispute compensation
claims, but also in bringing about the fair, efficient, and
accurate operation of a complex benefit program.
This intent was
expressed, we believe, in the General Assembly’s modification in
1994 of KRS 342.281.
That statutory amendment made clear, in the
wake of our Supreme Court’s contrary ruling in Osborne v. PepsiCola, Ky., 816 S.W.2d 643 (1991), that Board procedures need not
mimic court procedures.
In particular, the legislature provided
that the Board, despite its strictly “appellate” role, may
consider allegations of error not raised before the ALJ.2
That the scope of that authority includes sua sponte
consideration of patent legal errors is indicated, we believe, by
the provision, in KRS 342.125, for broad, on-going review of
compensation awards.
That statute, Reopening and review of award
2
The Special Fund notes that in the 1996 revision of KRS
342.281 the sentence added in 1994 expressly asserting the
Board’s authority to consider newly raised allegations of error
was removed. The statute now reads as it did following the 1988
amendments, which was the version of the statute construed in
Osborne v. Pepsi-Cola. The Special Fund maintains that this
return of KRS 342.281 to its pre-1996, pre-Smith v. Dixie Fuel
Co., form evidences a legislative intent to reinstate Osborne.
As intriguing as this suggestion is, the omission of this
sentence does not strike us as a “plain and unmistakable”
indication of the legislature’s intent to depart from the
interpretation of the Workers’ Compensation Act advanced in Smith
v. Dixie Fuel Co.. A clear indication of that intent would be
necessary, however, to justify our adoption of such a
reinterpretation. See Democratic Party of Kentucky v. Graham,
Ky., 976 S.W.2d 423, 429 (1998) (citing Butler v. Groce, Ky., 880
S.W.2d 547 (1994)).
-9-
or order, expressly provides for review of a compensation award
upon “an arbitrator’s or administrative law judge’s own motion.”
This statute clearly contemplates active oversight of the
compensation system by the ALJ’s and arbitrators.
Because the
Board would seem to have the authority, under KRS 342.285, to
order an ALJ to engage in that oversight, we can perceive no
reason to deny the Board the right to exercise directly the same
function.
Cf. Croke v. Public Service Commission of Kentucky,
Ky. App., 573 S.W.2d 927 (1987) (observing that statutory
agencies have only those powers expressly conferred or fairly
implied).
As suggested above, the statutory purpose underlying
these liberal provisions for review of compensation awards
indicates a legislative recognition that the workers’
compensation system is not easily administered.
Errors are
inevitable, and, over the long duration of some awards,
conditions are sure to change.
The system thus requires both
oversight, for the detection of errors and the determination of
altered circumstances, and flexibility, for correction and
adjustment.
Accordingly, the statutory review provisions, KRS
342.125, have incorporated procedures roughly analogous to those
provided for courts in CR 60.02 (for the reconsideration of
errors) and in KRS 403.250 (for the adjustment of domestic
relations support orders in light of changed circumstances).
While an awareness of these analogies is helpful, it is also
important to be aware of their limitations.
-10-
For example, legal errors, in general, are not subject
to review pursuant to CR 60.02.
S.W.2d 85 (1996).
Commonwealth v. Gross, Ky., 936
If the same rule applied to KRS 342.125, the
Special Fund’s insistence that the Board’s resurrection of the
miscalculation error here was barred by res judicata would have
merit.
The old award is long since final, and, under the Civil
Rules, the Board would have no authority to reopen it on the
ground of legal error.
KRS 342.125, however, is different.
As observed
recently by our Supreme Court, “the reopening statute . . . for
workers’ compensation claims may be invoked for mistakes of law
as well as fact . . .”
Wheatley v. Bryant Auto Service, Ky., 860
S.W.2d 767, 768 (1993).
See also Oubre v. District of Columbia
Department of Employment Services, supra (discussing, in a
similar factual context, the relaxation of finality doctrines in
the workers’ compensation arena).
Wheatley involved a controversy much like the one now
before us.
In that case, shortly after a disability benefit
award had become final, the ALJ realized that he had awarded
benefits for a maximum of 425 weeks when the claimant was
actually eligible to receive them for life.
On his own motion
the ALJ reopened and amended the order to correct the mistake.
The question on appeal was whether he had the authority under KRS
342.125 to do so.
Both the Board and this Court, relying on
principles of res judicata, said no.
disagreed.
Our Supreme Court
Noting the importance to the Workers’ Compensation
System that patently incorrect and unjust awards be correctable,
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the Court held that the reopening statute contemplated review on
the ground of mistakes of law as well as fact.
The Court further
held that,
[s]ince the authority for correcting this
mistake was statutory, there was no
prohibition by reason of the finality of the
decision against making the correction, such
as there would be had there been a court
decision where finality had attached.
860 S.W.2d at 769.
Unlike the situation in Wheatley, however, here it was
the Board, not an ALJ, who acted on its own motion to correct a
mistake, here the mistake was discovered years, not days, after
the award became final, and here the original award had been
appealed to and upheld by the circuit court.
We do not believe
that these differences distinguish this case from Wheatley.
As
discussed above, we are persuaded that under KRS 342.125 and
342.285 the Board has the same authority as the ALJs to raise on
its own motion patent and substantial errors in the
administration of the workers’ compensation system.
the remedy the Board ordered is prospective only.
Furthermore,
There would
seem, therefore, to be no prejudice to Eastover or the Special
Fund stemming from this issue’s long period of dormancy.
On the
other hand, the injustice to Reeder of perpetuating the mistake
is no less obvious than the injustice sought to be averted in
Wheatley.
Eastover and the Special Fund insist, however, that
Reeder’s 1981 appeal to circuit court distinguishes this case
from Wheatley and makes the Board’s ruling inappropriate.
It is
undisputed that Reeder did not raise this issue as part of his
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appeal, but according to Eastover and the Special Fund that fact
makes no difference.
They rely on that portion of Wheatley
quoted above, which they construe as indicating a distinction
between the finality that attaches to a workers’s compensation
award that has been appealed to a court and that which attaches
when the right to appeal has been waived.
Wheatley dealt with
the latter, they maintain, whereas the former is somehow no
longer reachable by KRS 342.125.
subspecies of finality.
We are aware of no such
An administrative order is not converted
to a judicial order by virtue of being affirmed on appeal.
It is
the distinction between administrative orders, which in this case
are subject to reopening under KRS 342.125, and judicial
judgments, which in general are less vulnerable to reopening,
that Wheatley recognizes.
There is another reason for our conviction that the
Board’s ruling in this case was within its authority.
An
exception to the rule that courts may not reopen final judgments
to correct errors of law comes into play whenever the error
involves the mistaken assertion of subject matter jurisdiction.
Such an error may be raised on the trial court’s or an appellate
court’s own motion at any time.
Commonwealth Health Corp. v.
Croslin, Ky., 920 S.W.2d 46 (1996).
This principle has been
extended to unauthorized assertions of remedial authority even
where the authority to address liability and to provide an
authorized remedy is patent.
S.W.2d 621 (1997).
Gaither v. Commonwealth, Ky., 963
In Commonwealth v. Griffin, Ky., 942 S.W.2d
289 (1997), our Supreme Court expressed dissatisfaction with the
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characterization of unauthorized-remedy cases as subject-matterjurisdiction cases.
of jurisdiction.”
The issue, the Court said, was “another type
Id. at 291.
Nevertheless, the Court agreed
that where the parties are not authorized to waive a statutory
limitation on a remedy, the trial court is jurisdictionally bound
by that limitation, and reviewing courts may address the issue at
any time.
There would seem to be a similar authority in an
administrative agency to correct at any time its unlawful
assertions of power.
Cf. Boone County Water and Sewer District
v. Public Service Commission, Ky. 949 S.W.2d 588 (1997)
(dissenting opinion by Justice Wintersheimer arguing that the
PSC’s authority to order refunds was implicit in its lack of
authority to collect more than the approved rates).
This authority to amend “jurisdictional” defects is
pertinent here.
For, although it is not always easy to say
whether a mistake is truly jurisdictional (see Arnett v. Kennard,
Ky., 580 S.W.2d 495 (1979) (distinguishing truly jurisdictional
requirements from “ultra mandatory” procedural rules), there is
good reason to believe that the mistake the Board discovered in
this case was.
The benefit statute specified the manner in which
the old board was to calculate Reeder’s award, and, by the time
of that award, ambiguities in the statute had been resolved by
our Supreme Court.
Pennington, supra.
When it made the award to
Reeder, therefore, the old board did not have authority to
“interpret” KRS 342.730 differently and use another method of
calculation, at least not in the absence of a valid and validly
approved settlement agreement.
Cf. Schaab v. Irwin, 298 Ky. 626,
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183 S.W.2d 814 (1944) (upholding the circuit court’s correction
of a miscalculated disability award despite the fact that the
issue had not been presented to the Board, because the court had
a duty to ensure that the Board conformed to its statutorily
defined function); cf. also Schulte v. Workmen’s Compensation
Board of Kentucky, Ky. App., 571 S.W.2d 108 (1978) (noting the
distinction between “mistakes of law” subject to correction under
KRS 342.125 and Stearns Coal and Lumber, supra, and the firstimpression interpretation of statutes which, as in Keefe v. O.K.
Precision Tool & Die Co., supra, do not give rise to
retrospective relief even though subsequently deemed incorrect by
a reviewing court.)
Thus, even if the current Board did not have
authority under KRS 342.125 to address this issue on its own
motion, we believe its action was justified on this alternative
ground.
One more difference between this case and Wheatley
needs to be discussed, a difference that provides the basis for
Eastover and the Special Fund’s substantive objection to the
Board’s ruling.
Unlike the award in Wheatley, the erroneous
award in this case was eventually settled for a lump sum.
Should
this settlement be construed, as Eastover and the Special Fund
contend, as, in essence, Reeder’s “quit claim,” or waiver, of all
his rights under the original award, whatever they might
subsequently prove to be?
Although waivers of important rights may sometimes be
inferred from a party’s actions, the general rule is that waivers
must be express and knowing.
Greenburg Deposit Bank v. GGC-Goff
-15-
Motors, Ky., 851 S.W.2d 476 (1993).
Accordingly, although we can
not say that the finding of a waiver would never be appropriate
in circumstances similar to these, we are not persuaded that the
Board erred by declining to find a waiver here.
The absolute
waiver alleged by Eastover and the Special Fund was not express,
and the parties’ behavior does not compel an inference that such
a waiver was intended.
As noted by the Board, Reeder was not
represented by counsel in his settlement negotiations, and the
settlement strongly favored the Special Fund.
These facts
suggest that Reeder’s participation was not particularly knowing.
Absent some express indication to the contrary, therefore, it is
highly unlikely that Reeder considered the possibility that his
award might be more valuable than it seemed, nor is it likely
that he would have accepted the $17,000.00 settlement had he
suspected the award’s correct amount.
It is to be borne in mind, moreover, that, under KRS
342.265, settlements must be approved by an ALJ.
Although the
standards for ALJ approval are not specified in the Act,3 we do
not believe that the ALJ’s role is intended to be merely
ministerial.
See Commercial Drywall v. Wells, Ky. App., 860
S.W.2d 299 (1993) (rejecting a “ministerial” interpretation of
KRS 342.265).
If the ALJ is to serve meaningfully as a
settlement overseer, however, the settlement terms he or she
reviews must indicate accurately and clearly the rights the
employee is relinquishing.
Neither Eastover nor the Special Fund
3
Cf. KRS 403.180 providing that domestic relations
settlements must be “conscionable.”
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maintains, however, that the settlement they proposed to the ALJ
indicated the breadth of waiver they are urging here.
Accordingly, we find no error in the Board’s decision to limit
the settlement credit due Eastover and the Special Fund to the
benefit amount actually provided under the erroneous award.
That
amount seems clearly to have been the basis of the parties’
settlement.
As our Supreme Court has observed,
“the theme pervading much of the adjectival
law of workmen’s compensation is the
necessity of striking a balance between
relaxation of rules to prevent injustice and
retention of rules to ensure orderly decision
making and protection of fundamental rights.”
Osborne v. Pepsi-Cola, 816 S.W.2d at 645 (quoting from 3 Larson,
Workmen’s Compensation Law, § 77A.83 (1989, 1990 Cum. Supp.)).
This case concerns the Board’s authority to strike that balance
in the manner it sees fit.
extensive.
We believe that authority is
Although the rights compromised and conferred by the
Workers’ Compensation Act are so important that the courts will
always be deeply involved in their interpretation and
enforcement, the fact remains that the Workers Compensation Board
is a duly authorized agency.
Separation of powers considerations
dictate that the General Assembly and the Board be free to
develop those procedures they think best for the efficient and
fair administration of the Act.
While due process constraints
are apt to render those procedures court-like, there is no
requirement that they conform strictly to the Civil Rules, or to
the procedures this Court might prefer.
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In the exercise of its authority to establish a claims
procedure, the General Assembly has conferred broader powers of
review on the Workers Compensation Board than are enjoyed by
reviewing courts.
In particular, the Board is authorized to
raise on its own motion significant errors in the awarding of
benefits despite the fact that such errors have escaped the
attention of the parties and have not been addressed at an
earlier stage of the proceedings.
Although this somewhat
informal review procedure may compromise to some extent the
finality of workers’ compensation awards, it helps to ensure, on
the other hand, the fairness and correctness of those awards.
This is precisely the sort of balancing, as our Supreme Court
noted in Osborne, that is required of a workers’ compensation
system.
Absent some indication that it has run afoul of
constitutional guarantees, we are unable to say that the
particular balance struck here exceeds the General Assembly’s or
the Board’s authority.
In light of the Board’s statutory duty to
ensure the fair and accurate award of benefits and its
constitutional duty to respect the limits of its jurisdiction, we
conclude that the Board had the authority to address on its own
motion the miscalculation of Reeder’s benefits.
We also conclude that the Board remedied that
miscalculation appropriately.
Although the error was patent on
the record, it had theretofore been overlooked and compounded by
at least two ALJs.
One of those ALJs had approved the lump-sum
settlement of the erroneous award, but the record gives no
indication that he would have done so absent the error.
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On the
contrary, the error was substantial enough to make it virtually
certain that he would not have done so.
The Board did not abuse
its discretion, therefore, by limiting the amount of settlement
credit to the amount of the erroneous award and by deeming Reeder
entitled, prospectively, to the balance of the award once it is
correctly determined.
Accordingly, we affirm the March 23, 1998,
opinion and order of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR EASTOVER MINING
COMPANY:
David R. Allen
Special Fund
Louisville, Kentucky
Antony Saragas
Huff Law Offices
Harlan, Kentucky
BRIEF FOR CLYDE REEDER:
Edward L. Bowling
WILSON, STANLEY, BOWLING &
COSTANZO
Middlesboro, Kentucky
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