ROBERT E. SPURLIN, DIRECTOR OF SPECIAL FUND V. JERRY FRANCIS, COSTAIN COAL, THOMAS A. NANNEY (ADMINISTRATIVE LAW JUDGE) and WORKER'S COMPENSATION BOARD
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RENDERED:
October 3, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2719-WC
ROBERT E. SPURLIN,
DIRECTOR OF SPECIAL FUND
APPELLANT
PETITION FOR REVIEW FROM A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-94-5243
WC-95-26872
WC-95-26870
V.
JERRY FRANCIS, COSTAIN
COAL, THOMAS A. NANNEY
(ADMINISTRATIVE LAW JUDGE)
and WORKER'S COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
GARDNER, GUDGEL and KNOPF, Judges.
GARDNER, JUDGE:
(Special
Robert E. Spurlin, Director of the Special Fund
Fund),
Compensation
appeals
Board
(the
from
board)
an
opinion
affirming
of
the
the
ruling
Workers'
of
an
Administrative Law Judge (ALJ) which denied the Special Fund's
motion
to
submit
a
prehearing conference.
medical
report
into
evidence
during
the
After reviewing the record below and the
applicable law, we affirm the board's opinion.
Jerry Francis (Francis) was employed by Costain Coal
Company (Costain).
Francis pursued three workers' compensation
claims based upon an injury, an occupational hearing loss and
occupational pneumoconiosis.
He settled with Costain.
against the Special Fund were decided by the ALJ.
currently
before
this
Court
stems
from
the
His claims
The only issue
occupational
pneumoconiosis claim.
In support of his pneumoconiosis claim, Francis submitted
reports from two physicians, both of whom found that he was
suffering from category two pneumoconiosis.
Prior to the date of
the prehearing conference, neither Costain nor the Special Fund
filed any medical proof in defense of Francis's pneumoconiosis
claim.
In early January 1996, Costain moved for an extension of
time from January 9, 1996, until February 8, 1996, in order to
present proof. The motion noted that Costain had scheduled Francis
for an examination by Dr. Bruce Broudy on January 3, 1996.
On
February 1, 1996, Francis's counsel received a copy of a report by
Dr. Broudy, and a copy was apparently also forwarded to the Special
Fund.
This report was not filed into evidence by any of the
parties prior to the prehearing conference.
At the prehearing
conference held on February 13, 1996, the Special Fund moved to
submit Broudy's report into evidence.
the ALJ.
This motion was denied by
The Special Fund appealed to the board which affirmed in
an opinion dated September 6, 1996.
The Special Fund has now
brought a petition for review to this Court.
-2-
The Special Fund argues to this Court that the ALJ erred
in not allowing it to introduce the medical report of Dr. Broudy
into evidence at the prehearing conference, and that the board
erred in affirming the ALJ's ruling.
We have uncovered no error.
803 KAR 25:010 § 5(5) provides that the prehearing
conference shall be scheduled no earlier than fifteen days after
the last day of discovery and proof time.
803 KAR 25:010 § 8(6)
states, "[u]pon motion, the ALJ may order additional discovery or
proof
to
hearing."
be
taken
between
the
prehearing
conference
and
the
Further, 803 KAR 25:010 § 8(2) provides that at the
prehearing conference, the ALJ may limit the witnesses and exhibits
to be presented at the hearing.
The rules contained in 803 KAR
25:010 make it clear that only in the most unusual circumstances
will an extension of time to take proof be tolerated, and then only
after a detailed explanation of why the extension is essential.
Cornett v. Corbin Materials, Inc., Ky., 807 S.W.2d 56, 58 (1991).
The ALJ has the power to compel the taking of evidence before him
within reasonable time limits, and this power should not be subject
to the control of courts unless the ALJ acts in an arbitrary or
unreasonable manner such as to indicate any abuse of discretion.
Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228, 231
(1939).
In the case at bar, the ALJ did not abuse his discretion
by declining to permit the Special Fund to enter Dr. Broudy's
report into evidence at the prehearing conference.
The applicable
regulations and case law clearly show that it is within an ALJ's
-3-
discretion to permit evidence into the record following termination
of the discovery period and proof time and in the period from the
prehearing conference to the hearing.
The record here shows that
the Special Fund attempted to introduce the report outside the
regular proof time and following the expiration of an extended
proof time. The information contained in the report was apparently
prejudicial to Francis's case.
The Special Fund also offered no
reason as to why it waited until the prehearing conference to
introduce this report into evidence.
The Special Fund's reliance
on Kleinjohn v. Special Fund, (95-CA-257-WC) is misplaced.
The
Kentucky Supreme Court reversed this Court's decision in that case
and ordered this Court's opinion depublished.
The Supreme Court
ruled that this Court erroneously reversed the ALJ's decision not
to allow the claimant to introduce a doctor's medical report into
evidence at the prehearing conference.
Thus, the Special Fund's
argument in the instant case fails.
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
-4-
BRIEF FOR APPELLANT:
BRIEF
FOR
FRANCIS:
Judith K. Bartholomew
Louisville, Kentucky
APPELLEE
Rebecca Baylous
John Sowards, Jr.
Lexington, Kentucky
-5-
JERRY
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