MICHAEL ALAN BORGMEIER v. AUTOGUARD SERVICE CORPORATION; HON. HOWARD E. FRASIER, JR., ADMINISTRATIVE LAW JUDGE; KENTUCKY EMPLOYERS' SAFETY COMPENSATION BOARD
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RENDERED: APRIL 6, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001912-WC
MICHAEL ALAN BORGMEIER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-91750
AUTOGUARD SERVICE CORPORATION;
HON. HOWARD E. FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE;
KENTUCKY EMPLOYERS' SAFETY
ASSOCIATION; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR AND WINE, JUDGES; PAISLEY,1 SENIOR JUDGE.
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
1
TAYLOR, JUDGE: Michael Alan Borgmeier, pro se, petitions this Court to review a
July 27, 2006, order of the Workers’ Compensation Board dismissing his appeal. We
affirm.
Appellant sustained a work-related injury on January 8, 1996, and was
awarded temporary total disability benefits by opinion rendered on March 22, 2001.
Thereafter, appellant, through counsel, filed a motion to reopen and claimed to be
permanently and totally disabled. On December 19, 2005, the Administrative Law Judge
(ALJ) entered an opinion and order denying the motion to reopen and dismissing the
claim.
Thereafter, appellant, pro se, filed a notice of appeal in the Workers’
Compensation Board (Board) on March 3, 2006.2 Appellant’s brief was due within thirty
days, which was on or before April 3, 2006. 803 Ky. Admin. Regs. (KAR) 25:010 §
21(3)(a) (2006). On April 5, 2006, appellant filed a motion for extension of time to file a
brief. Therein, he cited poor health and medical issues as the reason for seeking an
“extension” of time. By order entered April 19, 2006, the Board granted appellant’s
motion and gave him sixty days from the date of the order to file the brief.3 Thereupon,
appellant’s brief was due on or before June 19, 2006.
On June 8, 2006, appellant filed a second motion for extension of time to
file a brief. Therein, appellant again cited poor health as the reason for seeking an
Appellant proceeded pro se before the Workers’ Compensation Board (Board) and proceeds
pro se before this Court.
2
Appellant actually mailed his motion on April 2, 2006, although it was not received and filed
by the Board until April 5, 2006, after the April 3, 2006, deadline. Nonetheless, the Board
accepted the late filing and extended the brief filing deadline.
3
-2-
extension and requested an unspecified amount of time in which to file a brief. By order
entered June 22, 2006, the Board set forth the procedural history of the case and ordered:
[T]he Petitioner’s motion is DENIED. The Petitioner shall
have 15 days from the date of this order in which to file a
brief in support of his notice of appeal and to serve said brief
on all parties. The Respondent shall have 30 days thereafter
in which to file its brief. The Petitioner’s reply brief, if any,
shall be filed within 10 days from the date on which the last
Respondent’s brief is due or filed, whichever is earlier. In the
event the Petitioner should fail to file his brief within the
specified time period, the herein appeal shall be dismissed as
of the 16th day from the date of this order.
By the clear language of the June 22, 2006, order, appellant had fifteen
days from the date of the order to file a brief. If appellant failed to file a brief within that
time period, the Board clearly stated that the appeal would be dismissed. Appellant failed
to file a brief. Instead, on July 10, 2006, appellant filed a third motion for extension of
time to file a brief. Again, he cited poor health as a reason for seeking the extension. By
order entered July 27, 2006, the Board dismissed appellant’s appeal. Appellant now
brings this appeal to this Court, thus precipitating our review.
Appellant contends the Board erroneously dismissed his appeal. Appellant
specifically states:
The Board has overstepped it’s[sic] intended authority in
expecting appealant[sic] to properly file petitioner’s brief,
while claimant is so seriously ill and facing three (3)
corrective major operations. The Board’s dismissal of
appellant’s valid case must be reversed, allowing plaintiff
reasonable time and express opportunity to file petitioner’s
brief.
Appellant’s Brief at 3. We disagree.
-3-
Under 803 KAR 25:010 § 21(3)(a) (2006), a petitioner’s brief must be filed
within thirty days of the filing of a notice of appeal. Additionally, 803 KAR 25:010 §
21(11) (2006) outlines the possible sanctions available to the Board for a party’s failure
to file a conforming brief:
Failure of a party to file a brief conforming to the
requirements of this administrative regulation or failure of a
party to timely file a response may be grounds for the
imposition of one (1) or more of the following sanctions:
(a) Affirmation or reversal of the final order;
(b) Rejection of a brief that does not conform as to
organization or content, with leave to refile in proper form
within ten (10) days of the date returned. If timely refiling
occurs, the filing shall date back to the date of the original
filing;
(c) Striking of an untimely response;
(d) A fine of not more than $500; or
(e) Dismissal.
803 KAR 25:010 § 21(11)(e) clearly grants the Board the power of
dismissal as a sanction for a party’s failure to file a conforming brief. In the case at hand,
we believe the Board neither abused its discretion nor acted erroneously in dismissing
appellant’s appeal. The Board graciously gave appellant two extensions of time and
adequately warned appellant concerning the sanction of dismissal. Accordingly, we are
of the opinion the Board did not err by dismissing appellant’s appeal for failure to timely
file a brief.
-4-
For the foregoing reasons, the order of the Workers’ Compensation Board
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Michael Alan Borgmeier, Pro Se
Louisville, Kentucky
James G. Fogle
Janet K. Martin
Louisville, Kentucky
-5-
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