BELL (MARY) VS. COMPENSATION CONSOL OF KENTUCKY, INC. , ET AL.
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000673-WC
MARY BELL, SUBSTITUTED
PARTY FOR RODNEY
BELL, DECEASED
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-01307
CONSOL OF KENTUCKY, INC.;
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Mary Bell, substituted party for Rodney Bell,
deceased, filed this petition for review of a decision by the Workers’
Compensation Board, which affirmed the decision of the Administrative Law
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Judge (ALJ) to reduce the benefit payments by 50% pursuant to KRS 342.730(3).
Bell argues that KRS 342.730(3) does not apply to settlement agreements and that
the Board should have applied KRS 342.125 and KRS 342.265. The question of
whether KRS 342.730(3) applies to settlement agreements appears to be one of
first impression. We find that KRS 342.730(3) is applicable to settlement
agreements and affirm the decision of the Workers’ Compensation Board.
Rodney Bell was employed by Consol of Kentucky, Inc. Bell filed a
consolidated workers’ compensation claim for hearing loss and injuries sustained
to his spine, joints, and limbs. The claims were settled by agreement approved on
April 17, 2007. The agreement provided that Bell would receive $70.00 per week
to be paid weekly for 425 weeks beginning on February 1, 2006. Bell agreed to
waive the right to reopen the settlement for consideration of $125.00.
On July 4, 2007, Rodney Bell died in a motorcycle accident. On July
19, 2007, a motion was filed in the name of Rodney Bell to change the payee of the
settlement agreement to Mary Bell and requested that the full amounts of the
remaining settlement benefits be paid to her. Neither Mary Bell nor the estate of
Rodney Bell was substituted as a party. On August 3, 2007, the ALJ granted the
motion to change the payee of the settlement benefits to Mary Bell and provided
that she was to receive benefits at 50% of the rate specified in the settlement
agreement pursuant to KRS 342.730(3). Bell filed a petition for reconsideration,
which the ALJ denied.
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Bell appealed to the Board, which affirmed the decision of the ALJ.
This Court reversed the Board’s holding that the ALJ lacked jurisdiction to
substitute the payee because Mary Bell had not been substituted as a party. Bell v.
Consol of Kentucky, Inc., 2008 WL 2231131 (Ky. App. 2008) (2008-CA-000227WC). This Court remanded with directions that Mary Bell be substituted as the
real party in interest and for the ALJ to reissue his decision. On remand, Bell was
substituted as the real party in interest, and the ALJ again ordered that benefits be
paid to Bell at 50% of the rate specified in the settlement agreement pursuant to
KRS 342.730(3). Bell filed a motion for reconsideration, which the ALJ denied.
The Board affirmed the decision of the ALJ, finding that KRS 342.730(3) applied
to the settlement agreement and that KRS 342.265(4) and KRS 342.125
specifically did not apply. This petition for review of the decision of the Board
followed.
Bell first argues that KRS 342.730(3)(a) does not apply to settlement
agreements. KRS 342.730(3)(a) provides:
(3) Subject to the limitations contained in subsection (4)
of this section, when an employee, who has sustained
disability compensable under this chapter, and who has
filed, or could have timely filed, a valid claim in his
lifetime, dies from causes other than the injury before the
expiration of the compensable period specified, portions
of the income benefits specified and unpaid at the
individual’s death, whether or not accrued or due at his
death, shall be paid, under an award made before or after
the death, for the period specified in this section, to and
for the benefit of the persons within the classes at the
time of death and in the proportions and upon the
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conditions specified in this section and in the order
named:
(a) To the widow or widower, if there is no child
under the age of eighteen (18) or incapable of selfsupport, benefits at fifty percent (50%) of the rate
specified in the award[.]
The law is well established that an approved settlement agreement
carries the force and effect of an award. Jude v. Cubbage, 251 S.W.2d 584, 586
(Ky. 1952). The Board correctly found that “once the ALJ approved the settlement
agreement on April 25, 2007, upon being subsequently apprised of Bell’s untimely
death, the provision of KRS 342.730(3) provides the mechanism for the payment
of the remaining benefits to the applicable classes of persons eligible to receive
these benefits.” We find no error in the application of KRS 342.730(3)(a) to the
settlement agreement.
Bell next argues that KRS 342.265(4) and KRS 342.125 should have
been applied to this situation. We disagree.
KRS 342.265(4) states:
If the parties have previously filed an agreement which
has been approved by the administrative law judge, and
compensation has been paid or is due in accordance
therewith and the parties thereafter disagree, either party
may invoke the provisions of KRS 342.125, which
remedy shall be exclusive.
KRS 342.125(1) provides in pertinent part:
(1) Upon motion by any party or upon an administrative
law judge’s own motion, an administrative law judge
may reopen and review any award or order on any of the
following grounds:
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(a) Fraud;
(b) Newly-discovered evidence which could not
have been discovered with the exercise of due
diligence;
(c) Mistake; and
(d) Change of disability as shown by objective
medical evidence of worsening or improvement of
impairment due to a condition caused by the injury
since the date of the award or order.
None of the KRS 342.125(1) factors are applicable to the circumstances of this
case. The issue in this case is how the remaining benefits of an award are to be
distributed to a widow after the employee’s death from a non-work related injury.
As stated above, KRS 342.730(3) controls the resolution of this issue.
Finally, Bell argues that the application of KRS 342.730(3) to
settlement awards is contrary to public policy.
It is beyond the power of a court to vitiate an act of the
legislature on the grounds that public policy promulgated
therein is contrary to what the court considers to be in the
public interest. It is the prerogative of the legislature to
declare that acts constitute a violation of public policy.
Com. ex rel. Cowan v. Wilkinson, 828 S.W.2d 610, 614 (Ky. 1992). We decline to
declare that the application of KRS 342.730(3) to settlement awards violates public
policy.
Accordingly, the decision of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
Kenneth C. Smith, III
Catlettsburg, Kentucky
BRIEF FOR APPELLEE, CONSOL
OF KENTUCKY, INC.:
A. Stuart Bennett
Lexington, Kentucky
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