R. ANTHONY MARRESE, M.D. V. BILLY NOEL; WHITMERE SIGNS COMPANY; SPECIAL FUND; SHEILA C. LOWTHER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND BILLY WAYNE NOEL V. WHITMERE SIGN COMPANY; SPECIAL FUND; SHEILA LOWTHER, Administrative Law Judge; and WORKERS COMPENSATION BOARD
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RENDERED:
September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001754-WC
R. ANTHONY MARRESE, M.D.
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-80-45633
BILLY NOEL; WHITMERE SIGNS COMPANY;
SPECIAL FUND; SHEILA C. LOWTHER,
Administrative Law Judge; and WORKERS'
COMPENSATION BOARD
AND
NO.
1997-CA-001770-WC
BILLY WAYNE NOEL
V.
APPELLEES
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-80-45633
WHITMERE SIGN COMPANY; SPECIAL FUND;
SHEILA LOWTHER, Administrative Law
Judge; and WORKERS COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; ABRAMSON and JOHNSON, Judges.
GUDGEL, CHIEF JUDGE:
These matters are before us on pro se
petitions for review of an order of the Workers’ Compensation
Board (board), which dismissed as untimely two appeals from an
opinion and order entered by an Administrative Law Judge (ALJ).
For the reasons stated hereafter, we affirm.
Billy Wayne Noel was found to be totally and
permanently disabled as a result of a work-related injury which
he sustained in October 1977 while employed by Whitmere Sign
Company (Whitmere).
The claim was reopened in 1996 after
Whitmere denied responsibility for certain medical expenses
arising out of Noel’s treatment by Dr. Anthony Marrese.
The ALJ determined that Whitmere was not liable to
Marrese for the costs of his medical treatment of Noel because
that treatment “was not reasonable and necessary for the
treatment and relief of the effects of the 1977 work-related
injury.”
Marrese’s motion for reconsidation was denied by a
final order entered on March 4, 1997.
Both Marrese and Noel
appealed.
The record indicates that Marrese’s notice of appeal
from the March 4 order was mailed by certified mail, to an
incorrect address, on April 3, 1997.
The document was stamped by
the Department of Workers’ Claims (Appeals) as having been filed
on April 8, 1997.
Further, Noel’s notice of appeal was stamped
by the same department as having been filed on April 11, 1997.
The board dismissed both appeals as untimely, and these petitions
for review followed.
At the time in question, 803 KAR 25:010, Section 13(1)
(now see Section 23), provided that
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[w]ithin thirty (30) days after the date of
filing of a final order of an administrative
law judge as set forth in Section 1(5) of
this administrative regulation any party
aggrieved by the order may appeal to the
board. As used in this section “final order”
shall be determined in accordance with Civil
Rule 54.02(1) and (2).
“Date of filing” is defined in 803 KAR 25:010, Section 1(5) as
the date a pleading, motion, or other
document is received by the commissioner at
the Department of Workers’ Claims in
Frankfort, Kentucky, except final orders and
opinions of administrative law judges and the
board, which shall be deemed “filed” three
(3) days after the date set forth on the
final order or opinion.
Here, the ALJ’s final order is dated March 4, 1997.
Thus, that order was deemed “filed” as of three days later, and
any appeal was required to be filed within thirty days from March
7.
Because thirty days from March 7 fell on Sunday, April 6, the
parties’ appeals could have been timely filed as late as April 7,
1997.
As noted above and as found by the board, Marrese’s and
Noel’s notices of appeal were filed on April 8 and April 11,
1997, respectively.
Thus, both notices of appeal were untimely.
Moreover, we have found nothing in the administrative regulations
to suggest that the running of time was stayed by the fact that
Marrese mailed the document by certified mail.
Indeed, for
purposes of comparison, even CR 76.40 specifically provides that
the mailing of a document by certified mail does not stay the
running of time for filing that document.
It follows, therefore,
that the board did not err by dismissing these appeals as
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untimely.
In light of this conclusion, we need not address the
merits of Marrese’s arguments concerning the propriety of the
ALJ’s findings and conclusions.
Whitmere’s motion to dismiss Marrese’s appeal, which
was passed to this panel of the court for a decision on its
merits, is denied.
The board’s order is affirmed.
ALL CONCUR.
BRIEF FOR R. ANTHONY MARRESE,
M.D.:
BRIEF FOR WHITMERE SIGN
COMPANY:
R. Anthony Marrese, M.D.
Evansville, IN
Brian T. Gannon
Louisville, KY
BRIEF FOR BILLY WAYNE NOEL:
BRIEF FOR SPECIAL FUND:
Billy Wayne Noel
Crofton, KY
Joel D. Zakem
Louisville, KY
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