GARY FOTH V. GENERAL MEDICAL CORPORATION; ROBERT E. SPURLIN, Director THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
December 24, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-0472-WC
GARY FOTH
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-3589
V.
GENERAL MEDICAL CORPORATION;
ROBERT E. SPURLIN, Director
of Special Fund; HONORABLE
THOMAS A. NANNEY, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
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BEFORE:
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DYCHE, HUDDLESTON, and KNOPF, Judges.
DYCHE, JUDGE.
Shorn of its irrelevancies and charges of improper
conduct by the attorneys involved, the issue in this case is
whether appellant failed to present a prima facie case of workrelated injury and disability.
The Administrative Law Judge
dismissed his claim for failing to submit proper medical proof, and
the Workers' Compensation Board affirmed that dismissal.
The brief submitted to the Board filed by counsel for the
Special Fund clearly and succinctly sets out the facts and issues,
and the correct legal analysis applicable herein:
. . . Petitioner filed an Application for
Adjustment of Claim on March 4, 1996. On
April 9, 1996, a scheduling order was
issued giving the Petitioner until June
8, 1996 for the introduction of proof in
support of his claim.
The Petitioner
submitted no proof within that time, and
on or about June 19, 1996, the employer
filed a motion to dismiss.
The ALJ
sustained that motion in an order dated
July 21, 1996.
The medical reports attached to the
Application for Adjustment of Claim are
not evidence. They serve as a means for
early
settlement
and
handling
of
uncontested claims and to provide a
default judgment procedure in uncontested
claims.
They are merely a part of the
pleadings. Brooks v. Island Creek Coal
Co., Ky. App., 678 S.W.2d 791 (1984).
The Petitioner filed no motion to have
the reports included as part of the
evidence, nor did he serve notice that he
intended to rely on them as part of the
evidence. Given these circumstances, and
the fact that no motion for extension of
time
was
filed,
the
ALJ
properly
dismissed
the
claim
for
benefits.
Cornett v. Corbin Materials, Inc., Ky.,
807 S.W.2d 56 (1991).
We agree with the above, and affirm the opinion of the Workers'
Compensation
Board.
We
decline
to
impose
frivolous
appeal
sanctions against appellant's counsel.
KNOPF, JUDGE, CONCURS.
HUDDLESTON, JUDGE, CONCURS.
HUDDLESTON, JUDGE, CONCURRING.
opinion.
I concur in the Court's
I write separately to state my reason for concurring in
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the Court's refusal to impose frivolous appeal sanctions against
appellant's counsel.
I understand from the Workers' Compensation
Board's opinion of January 24, 1997, that sanctions are to be
imposed on counsel for filing an appeal with the Board, addressing
the issue of fraud, that was frivolous and so lacking in merit as
to be groundless.
A second sanction, although possibly justified,
would simply be, in football terms, piling on.
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BRIEF FOR APPELLANT
BRIEF FOR APPELLEE
GENERAL MEDICAL CORPORATION
Mark Joseph Smith
Louisville, Kentucky
William A. Miller, Sr.
John G. Grohmann
Louisville, Kentucky
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