GLENDA K. WRIGHT V. TRANSITIONAL HEALTH SERVICES; SPECIAL FUND; DONNA H. TERRY, Chief Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
December 24, 1997; 2:00 p.m.
TO BE PUBLISHED
NO. 97-CA-684-WC
GLENDA K. WRIGHT
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-4980
TRANSITIONAL HEALTH SERVICES;
SPECIAL FUND; DONNA H. TERRY,
Chief Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION REVERSING AND REMANDING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GUIDUGLI and SCHRODER, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an order entered by the Workers' Compensation Board
(board) dismissing an appeal as nonfinal.
We reverse and remand.
On December 17, 1996, the Chief Administrative Law
Judge (ALJ) rendered an opinion awarding appellant temporary
total and permanent partial disability benefits, as well as
medical expenses.
On December 20 appellant's employer, appellee
Transitional Health Services, filed a timely petition for
reconsideration.
However, before this petition was ruled upon,
appellant appealed to the board from the ALJ's opinion and award.
On January 17, 1997, appellee Special Fund filed a motion to
dismiss the appeal on the ground that since a petition for
reconsideration was pending, the ALJ's opinion and award was not
yet final and appealable.
Thereafter, on January 23 the ALJ
ruled on the petition for reconsideration.
On February 7,
apparently unaware that the petition for reconsideration had been
ruled upon, the board ordered appellant's appeal dismissed as
having been taken from a nonfinal order.
This appeal followed.
True enough, under a traditional analysis it would be
said that the filing of the employer's petition for
reconsideration destroyed the finality of the ALJ's opinion and
award.
(1969).
See Commonwealth v. Robertson, Ky., 447 S.W.2d 857
However, in the instant proceeding the ALJ ruled upon
the pending petition for reconsideration before appellant's
appeal was dismissed as having been taken from a nonfinal order.
Thus, the ALJ's opinion and award actually became final and
appealable before the board dismissed the appeal as premature.
See Yocom v. Payne, Ky., 512 S.W.2d 517 (1974).
Recently, our supreme court followed the lead of the
federal courts by holding in Johnson v. Smith, Ky., 885 S.W.2d
944 (1994), that a civil appeal should not be dismissed simply
because it is premature due to the filing of a postjudgment
motion by another party.
Instead, such an appeal is now treated
and construed as relating forward, and it will be deemed filed
upon entry of the final judgment.
In adopting this rule the
court noted that because, unlike tardy notices of appeal,
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premature notices of appeal "put appellees on notice of the
intent to appeal before expiration" of the applicable time
limits, they serve "the essential purpose of the rule" and are
"adequate to protect the needs of the appellees."
Id. at 949.
In our view, Johnson has impliedly overruled Robertson
and its progeny to the extent those cases rely upon the civil
rules of procedure as a basis for dismissing premature workers'
compensation appeals.
Indeed, given the widespread application
of the civil rules to administrative proceedings, see generally,
803 KAR Chapter 25, as well as Johnson's interpretation of those
rules as they relate to premature appeals, we fail to perceive
that there is any basis for treating the instant administrative
appeal any differently from a prematurely filed civil appeal.
In
neither instance would any party suffer prejudice if the appeal
were abated, nor would anything be gained by requiring the
appellant to file another notice of appeal.
See Johnson, supra.
This is especially true here, since the ALJ's order actually
became final before the appeal was dismissed as being premature.
Hence, we conclude that the board erred by dismissing the appeal
as having been taken from a nonfinal order.
For the reasons stated, the board's order is reversed
and remanded for further proceedings consistent with our views.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR TRANSITIONAL
HEALTH SERVICES:
Miller Kent Carter
Pikeville, KY
Kimberly D. Newman
Lexington, KY
BRIEF FOR SPECIAL FUND:
Judith K. Bartholomew
Louisville, KY
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