FRITO-LAY, INC. v. MARTHA LOVELESS; SPECIAL FUND; THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND ROBERT L. WHITTAKER, Director of SPECIAL FUND v. MARTHA LOVELESS; FRITO-LAY, INC.; HON. THOMAS A. NANNEY Administrative Law Judge; and
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RENDERED: June 22, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-002271-WC
FRITO-LAY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-97-79722
MARTHA LOVELESS;
SPECIAL FUND;
THOMAS A. NANNEY,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
AND
NO. 2000-CA-002280-WC
ROBERT L. WHITTAKER,
Director of SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-97-79722
MARTHA LOVELESS;
FRITO-LAY, INC.;
HON. THOMAS A. NANNEY
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART AND
REVERSING IN PART
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and TACKETT, Judges.
HUDDLESTON,
Judge:
Frito-Lay,
Inc.
and
Robert
L.
Whittaker,
Director of Special Fund, appeal from an opinion of the Workers’
Compensation Board that affirmed in part and reversed in part an
Administrative Law Judge’s award and remanded the claim to the ALJ
for further proceedings. The ALJ’s opinion and order had dismissed
Martha Loveless’s claim for failure to file her application of
resolution of injury within the applicable statute of limitations
period.
Loveless filed a claim for an injury that occurred on
March 29, 1996, for which Frito-Lay paid temporary total disability
benefits from May 6, 1996, through August 23, 1996.
On August 26,
1997, Frito-Lay filed a handwritten Employee’s Disability Status
Report, SF3A, form with the Department of Workers’ Claims.
It is
uncontroverted that all the statistical information on the form was
correct, including Loveless’s mailing address. On August 29, 1997,
the Department of Workers’ Claims sent a WC-3 letter to Loveless
advising that she had two years from August 23, 1996, in which to
file a claim.
No evidence was introduced by any party that the WC-3
letter
mailed
to
Loveless
was
returned
to
the
Department
of
Workers’ Claims as undelivered, but Loveless testified at the
hearing before the ALJ that she never received the WC-3 letter.
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Loveless
also
testified
that
Frito-Lay’s
insurance
carrier
contacted her several times in 1997 with offers of settlement, but
she did not respond, nor did she seek the advice of an attorney,
until well after her medical benefits were terminated.
The upshot was that Loveless filed her application for
resolution of injury claim on July 13, 1999, more than two years
after the last TTD benefits had been paid.
opinion
and
order
rendered
May
11,
2000,
Therefore, by an
the
ALJ
dismissed
Loveless’s claim as barred by the statute of limitations.
The single issue raised by Loveless before the ALJ was
whether the statute of limitations is to be tolled based solely on
the claimant’s testimony that the letter from the Department of
Workers’ Claims advising her of her rights was not received.
The
ALJ found that the claimant’s testimony alone on this fact could
never
be
sufficient
to
toll
the
brief
to
running
of
the
statute
Board,
the
only
of
limitations.
In
Loveless’s
the
issue
identified as raised before the ALJ was that the statute of
limitations should be tolled based on her testimony that she never
received the letter.
issue of credibility.
Loveless contended that this was merely an
The Board addressed this question and
affirmed the decision of the ALJ, stating that the testimony of a
claimant alone can never be sufficient to toll the running of the
statute of limitations where hard documentary evidence supports a
finding of compliance with Kentucky Revised Statute (KRS) 342.020
by the employer and the commissioner.
-3-
However, the Board went further in its opinion and stated
an alternative issue that served as the basis for reversing the
ALJ’s decision.
Specifically, the Board said, “[a]lternatively,
Loveless contends that the statute of limitations should be tolled
based on prejudice to her caused by Frito-Lay’s failure to file an
SF3A with the commissioner for approximately one year following
termination of her temporary total disability (“TTD”) benefits.”
Based upon this alternative argument, the Board reversed the ALJ’s
decision and allowed Loveless to proceed with her claim.
We have reviewed the record and do not find that this
alternative argument was raised by Loveless before the ALJ, nor is
this alternative argument raised in Loveless’s brief to the Board.
Although couched in language that suggests that the argument was
raised by Loveless, the Board raised this argument without it
having been first presented to the ALJ.
Under the old workers’ compensation system, four tiers of
consideration existed: the referee, the (old) Board, the circuit
court and the Court of Appeals (then the Court of last resort).1
In Harvey Coal Corp. v. Morris,2 Kentucky’s highest court held that
“[i]t is unconscionable for the parties to practice their case
before the referee and then before the full Board without raising
the issue as to whether the parties were under the Act . . . and
1
See Harvey Coal Corp. v. Morris, Ky., 237 S.W.2d 70
(1951)(decided based upon the scheme then in existence under Ky.
Rev. Stat. (KRS) 342.285).
2
Id.
-4-
then on review before the circuit court raise the question for the
first time.”3
Under the present system, the ALJ serves as the factfinder, a function performed by the Board under the old system.4
The
Board
now
serves
“the
same
functions
as
an
intermediate
[appellate] court reviewing the decisions of a court of original
jurisdiction
review.”5
.
.
.
lacking
only
the
power
of
constitutional
When we review opinions of the Board, the Board is
entitled to the same deference extended to this Court by the
Supreme
Court
when
it
exercises
discretionary
review.6
Our
function in reviewing the Board “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.”7
A party to a workers’ compensation action cannot raise a
question for the first time before the appellate court without
having first raised the question before the ALJ.8
Loveless was
required to file a petition for reconsideration with the ALJ if she
believed that an error patently appeared on the face of the ALJ’s
3
Id. at 71.
4
See Western Baptist Hospital v. Kelly, Ky. 827 S.W.2d 685
(1992).
5
Id. at 687.
6
Id.
7
Id.
8
See Harvey Coal Corp., supra, n. 1.
-5-
order.9
to
“[A] petition for reconsideration [must] be filed in order
preserve
an
issue
for
appellate
review.”10
The
Board,
functioning as an intermediate appellate court, is not empowered to
reverse an opinion of the ALJ based on a question that was not
presented to the ALJ.11
We affirm that portion of the Board’s opinion that
affirms the conclusion reached by the ALJ that Loveless is barred
in pursuit of her claim due to the running of the statute of
limitations but reverse that portion of the opinion of the Board
reversing Loveless’s claim based on the alternative question raised
by the Board.
In light of this decision, the appeal of the Special Fund
is moot.
ALL CONCUR.
9
See Wells v. Beth-Elkhorn Coal Corp., Ky. App., 708
S.W.2d 104 (1986); KRS 342.281.
10
Halls Hardwood Floor Co. v. Stapleton, Ky. App., 16
S.W.2d 327, 330 (2000).
11
Compare Ky. R. Civ. P. (CR) 59.01; see also Caslin v.
General Electric Co., Ky. App., 608 S.W.2d 69, 70 (1980)(“It is
elementary that a reviewing court will not consider for the first
time an issue not raised in the trial court”).
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BRIEF FOR APPELLANT/APPELLEE
FRITO-LAY:
BRIEF FOR APPELLEE
MARTHA LOVELESS:
Judson F. Devlin
FULTON & DEVLIN
Louisville, Kentucky
Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND:
BRIEF FOR APPELLANT
ROBERT WHITTAKER,
DIRECTOR OF SPECIAL FUND:
John William Burrell
Frankfort, Kentucky
John William Burrell
Frankfort, Kentucky
-7-
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