ANDY HATFIELD v. NEW HORIZONS COAL, INC.; HON. DONNA H. TERRY, CHIEF ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
September 26, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-002781-WC
ANDY HATFIELD
APPELLANT
PETITION FOR REVIEW OF A DECISION OF THE
WORKERS' COMPENSATION BOARD
CLAIM NO. WC-94-12582
v.
NEW HORIZONS COAL, INC.;
HON. DONNA H. TERRY,
CHIEF ADMINISTRATIVE LAW JUDGE;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
VACATING AND REMANDING
*
BEFORE:
*
*
*
*
JOHNSON, KNOPF and MILLER, Judges.
JOHNSON, JUDGE:
Andy Hatfield (Hatfield) petitions for review of
a September 13, 1996 opinion of the Workers' Compensation Board
(Board) which affirmed Chief Administrative Law Judge Terry's (CALJ
Terry) denial of Hatfield's motion to reopen his case.
We vacate
the opinion of the Board and remand to the ALJ for further
proceedings.
In order to more clearly understand this case, we need to
review its entire convoluted history.1
1
On March 28, 1994, Hatfield
This task is made even more difficult due to the poor state
of the record since various documents are either missing or filed
out of order.
filed
an
application
for
retraining
incentive
benefits
(RIB)
against his employer, New Horizons Coal, Inc. (New Horizons), for
which he had worked since 1992.
(KRS) 342.732(1)(a).
See Kentucky Revised Statutes
When previous employment was considered,
Hatfield had been exposed to coal dust for about 18 years.
At his
hearing on October 11, 1994, Hatfield presented medical evidence
based upon a December 1993 x-ray.
Hatfield did not present any
evidence from his pulmonary examinations conducted on March 17,
1994, and May 19, 1994.
On December 28, 1994, nine months from the time Hatfield
filed his claim, the Administrative Law Judge (ALJ) ordered that
Hatfield receive benefits pursuant to his RIB claim.
However,
because Thornsbury v. Aero Energy, Ky., 908 S.W.2d 109 (1995), was
not final at that time, the ALJ ordered that Hatfield's case be
held in abeyance.
Hatfield's case raised the issue of whether the
1994 legislative amendments regarding the method for paying RIB
would apply to his claim retroactively.
Apparently, the parties
and the ALJ expected Aero Energy to resolve this issue.
On February 22, 1995, Hatfield filed an affidavit which
stated that he was no longer employed at New Horizons and that he
desired that the payment of his RIB award begin.
The ALJ entered
an order on March 9, 1995, which stated that Hatfield would
"receive benefits on a weekly basis in accordance with my Order
dated December 28, 1994[,] so long as he remains unemployed in the
coal
mining
industry."
Hatfield
then
filed
a
petition
for
reconsideration and requested that the ALJ reconsider the March 9,
1995 order and add a provision to reflect that after Aero Energy
-2-
was finalized that it would control the method of payment.
The ALJ
entered such an order on June 21, 1995.
On May 24, 1995, Hatfield apparently filed a motion to
reopen the RIB award alleging that his condition had worsened.2
In
his motion, he specifically asked the ALJ to "[g]rant his Motion to
Amend his claim to File a Form 102 and Reopen his claim; and
setting this matter for a proofing schedule."3
ask that the claim be removed from abeyance.
The motion did not
The two medical
reports that he attached to the motion were based upon examinations
that were performed on March 17, 1994, and May 19, 1994.
As we
noted previously, these examinations were before the October 11,
1994 hearing on Hatfield's RIB claim.
On April 9, 1996, Hatfield
filed a renewed motion to reopen which specifically incorporated
all of the May 24, 1995 motion to reopen language and moved the ALJ
to "[g]rant his Renewed Motion to Reopen and Amend his claim to
file a Form 102 and Reopen his claim; and set this matter for a
proofing schedule."
On May 14, 1996, CALJ Terry ordered that Hatfield's
motion to reopen be denied.
The order stated that (1) the award
was in abeyance and thus nonfinal and therefore was not ripe for
reopening; (2) only medical reports obtained after the original
proceeding may be used to support a motion to reopen; and (3) the
2
The record contains a "Renewed Motion to Reopen" filed on
April 9, 1996, that includes the following handwritten notation:
"Original motion is on terminal as filed May 24, 1995. It cannot
be found." The record contains two copies of a motion to reopen
dated May 23, 1995, that have been filed as attachments to other
pleadings.
3
Apparently Hatfield filed a Form 102 with his motion to
reopen.
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application be stricken from the record since it appeared to be an
attempt to circumvent KRS 342.125(2)(a).4
CALJ Terry's order made
no reference to Hatfield's request that his claim be amended.
Hatfield appealed the denial of his motion to the Board.
In a September 13, 1996 opinion, the Board affirmed CALJ
Terry's denial of Hatfield's motion to reopen;
affirmed on other grounds.
however, the Board
The Board stated:
While we cannot conclude that Hatfield's
motion to reopen was premature under the
circumstances in this case, we nevertheless
conclude that the denial of Hatfield's motion
to reopen was correct under the circumstances
presented here. We further cannot agree with
Hatfield's assertion that because his award
had never become final that the provisions
under KRS 342.125(2)(a) did not apply to his
claim.
4
This reopening statute provides:
Upon the application of the affected employee
and a showing of progression of his previously
diagnosed occupational pneumoconiosis resulting from exposure to coal dust and development
of respiratory impairment due to that pneumoconiosis, the administrative law judge may
review an award of a retraining incentive
benefit because of the diagnosis, and upon a
finding of respiratory impairment due to that
pneumoconiosis shall make an award for benefits as provided in KRS 342.732.
Such a
reopening may also occur upon a showing of
progression of respiratory impairment in a
claim for which benefits were previously
awarded under the provisions of KRS 342.732.
An application for review under this subsection shall be made within one (1) year of the
date the employee knew or reasonably should
have known that a progression of his disease
and development or progression of respiratory
impairment have occurred. Review under this
subsection shall include a review of all
evidence admitted in all prior proceedings.
-4-
The Board's Opinion then stated (1) that Hatfield failed to show
any progression of the disease; (2) that he used medical reports
from examinations performed before and during the pendency of his
claim; and (3) that his motion was brought over a year from the
time he was aware of the impairment and was thus barred under KRS
342.125(2)(a). The Board, citing Slone v. Jason Coal Co., Ky., 902
S.W.2d 820 (1995), also stated that a motion to reopen cannot be
based upon a condition known to Hatfield during the pendency of the
original action but not litigated.
For these reasons, the Board
affirmed CALJ Terry's denial of Hatfield's motion to reopen.
This
appeal followed.
The standard used by this Court to review a Board opinion
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." Western Baptist Hospital v.
Kelly, Ky., 827 S.W.2d 685, 687-688 (1992).
Hatfield argues that he "was simply attempting to submit
medical evidence which had not been submitted in the original claim
. . . ."
and
As Hatfield stated in his motions, he wanted to "amend"
"reopen"
schedule."
his
claim,
"setting
this
matter
for
a
proofing
Under the applicable statutes and regulations as we
understand them, Hatfield could not have reopened his claim;5 but
he could have sought an extension of proof time,6 or perhaps have
5
KRS 342.125 refers to reopening "an award."
ily requires that the award be final.
6
See 803 KAR 25:010 § 16 (1996).
-5-
This necessar-
sought to amend his claim.7
Since Hatfield's claim was held in
abeyance, it was not final and could not be reopened. Furthermore,
since the claim was in abeyance, the order dated May 14, 1996, by
CALJ Terry that denied his motion was an interlocutory order and
not subject to appeal to the Board.
Thus, the Board erred as a
matter of law when it affirmed the nonfinal order.
Accordingly, we vacate the opinion of the Board and
remand this matter to the ALJ for further proceedings in accordance
with this Opinion.
KNOPF, JUDGE, CONCURS.
MILLER, JUDGE, DISSENTS.
7
See 803 KAR 25:010 § 4 (1996).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, NEW HORIZONS:
Hon. Ronald C. Cox
Harlan, KY
Hon. Ralph D. Carter
Hazard, KY
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