BILLY HENSLEY v. UNION BOILER COMPANY; SPECIAL FUND; HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: July 10, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1816-WC
BILLY HENSLEY
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-95-029041
v.
UNION BOILER COMPANY;
SPECIAL FUND;
HON. LLOYD R. EDENS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * *
BEFORE:
ABRAMSON, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE:
Billy Hensley, acting pro se, appeals from the
decision of the Workers' Compensation Board (Board) dismissing
his administrative appeal for lack of jurisdiction.
Appellant was employed by Union Boiler Company as a
carpenter.
His work consisted of constructing scaffolding for
work crews to use while removing asbestos.
He filed his claim
for asbestosis benefits, alleging that he had been exposed to
asbestos while working with the scaffolding.
Appellant was initially represented by counsel when his
case was first heard by the ALJ.
On October 4, l996, the ALJ
rendered his opinion and order determining that, although
appellant experienced pulmonary impairment, the evidence was not
sufficient to show that appellant had contracted asbestosis.
After receiving the ALJ's opinion, appellant's counsel informed
appellant of the ALJ's decision by way of letter dated October 7,
1996, expressing his opinion about the futility of proceeding
further, and apprising appellant of his withdrawal from the case.
In that letter, counsel informed appellant of his right to file a
petition for review prior to October 18, 1996.
Not until November 4, 1996, however, did appellant take
any action, at which time he drafted a letter to the commissioner
of the Department of Workers' Claims asking the commissioner to
reconsider the ALJ's decision.
On November 18, 1996, appellant
corresponded with the ALJ and, on November 22, 1996, again wrote
the Department of Workers' Claims about his case.
By order of
February 11, 1997, the ALJ, noting that appellant had not sent
copies of his correspondence to the other parties, gave the other
parties 10 days within which to respond to appellant's efforts to
seek reconsideration of the ALJ's October 1996 opinion.
By order dated March 31, 1997, the ALJ ruled upon
appellant's efforts to have his case reconsidered.
2
The ALJ
considered appellant's argument that the original opinion and
order did not refer to the opinion of Dr. Wright, one of the
physicians who examined appellant.
In addressing that point, the
ALJ acknowledged that his order should have referred to Dr.
Wright's opinion, but noted that Dr. Wright did not believe
appellant had asbestosis.
The ALJ further ruled that, since
appellant had not filed his documents for reconsideration within
14 days from the date of the ALJ's opinion and order of October
4, 1996, as is required by KRS 342.281, appellant's petition for
reconsideration must be dismissed.
Appellant then appealed to the Board, which affirmed
the ALJ's decision, noting that appellant had not only failed to
timely file his petition for reconsideration, but also that
appellant had failed to appeal to the Board within 30 days of the
ALJ's October 1996 decision, as is required by 803 KAR
25:011(12).
Thus, the Board concluded, it was without
jurisdiction to hear appellant's appeal.
The Board nevertheless
expressed its view that the evidence heard by the ALJ supported
his decision that appellant had failed to establish the existence
of asbestosis.
In reviewing the record in this case, we cannot
conclude that the Board erred in dismissing appellant's appeal.
Appellant's first effort seeking reconsideration of the ALJ's
ruling was by way of his letter to the commissioner for the
Department of Workers' Claims, dated November 4, 1996.
That
letter was sent well outside of the 14-day period provided in KRS
3
342.281 for the filing of petitions for reconsideration.
As
noted by the Board, the untimely filing of a petition for
reconsideration will not enlarge the period fixed for the filing
of an appeal.
Rice v. McCoy, Ky. App., 590 S.W.2d 340 (1979).
We believe the Board properly ruled that appellant filed his
appeal to the Board well outside of the 30-day period set forth
in 803 KAR 25:011(12).
However, like the Board, we do not
believe that the evidence heard by the ALJ was so overwhelming as
to compel a finding in appellant's favor.
Paramount Foods, Inc.
v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
While Dr. B. T.
Westerfield made a diagnosis of asbestosis, the record contains
the opinions of other physicians who did not diagnose the disease
of asbestosis.
Given the testimony of those physicians, we agree
with the Board that the evidence was not so overwhelming that no
reasonable person could fail to be persuaded by it.
REO
Mechanical v. Barnes, Ky. App., 691 S.W.2d 224 (1985).
Accordingly, we affirm the decision of the Workers'
Compensation Board.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR UNION BOILER
COMPANY:
Billy Hensley, Pro Se
Salt Lick, Kentucky
Ellen E. Sturgill
Prestonsburg, Kentucky
BRIEF FOR SPECIAL FUND:
David W. Barr
Louisville, Kentucky
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