HON. ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND v. PATRICIA T. ZACK; SUBURBAN MEDICAL CENTER; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: September 25, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1998-CA-000231-WC
HON. ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-94-015665
PATRICIA T. ZACK;
SUBURBAN MEDICAL CENTER;
HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * *
BEFORE:
BUCKINGHAM, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE:
The Special Fund petitions for review of a
decision by the Workers’ Compensation Board (Board) that Patricia
T. Zack (Zack), in order to appeal the Administrative Law Judge’s
(ALJ) retroactive application of the tier down provisions in KRS
342.730, was not required to file a petition for reconsideration
before the ALJ pursuant to KRS 342.281.
Zack filed a claim for benefits as a result of a workrelated injury which occurred on February 20, 1994.
The ALJ
found Zack to be permanently and totally disabled, and
apportioned the award equally between the employer and the
Special Fund.
Further, the ALJ reduced Zack’s income benefits by
her sixty-fifth (65th) birthday according to the tier down
provisions of KRS 342.730(4), effective April 4, 1994.
Subsequently, the Special Fund, noting that it had
erroneously been directed to pay benefits while Zack was
temporarily totally disabled, filed a petition for
reconsideration before the ALJ.
On May 1, 1997, the ALJ entered
an order addressing the Special Fund’s petition for
reconsideration, and corrected her original award by ruling that
the employer was solely responsible for temporary total
disability benefits.
On May 12, 1997, Zack filed a petition for
reconsideration of the ALJ’s order entered May 1, 1997, asking
the ALJ to correct the period within which temporary total
disability benefits were to be paid.
On September 17, 1997, the
ALJ issued an order correcting the duration of those benefits.
On October 1, 1997, Zack filed a notice of appeal to
the Board, raising as an issue whether her benefits should be
reduced at her sixty-fifth (65th) birthday under KRS 342.730(4),
since her injury date of February 20, 1994, predated the 1994
amendment to KRS 342.730(4), which provided for the reduction of
benefits after the age of sixty-five (65).
The Special Fund,
before the Board, did not contest Zack’s position that KRS
342.730(4) should not have been retroactively applied to reduce
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Zack’s benefits at sixty-five (65).
Rather, the Special Fund
argued that, since Zack did not raise that issue before the ALJ
by filing a petition for reconsideration under KRS 342.281, Zack
had failed to preserve that issue.
By opinion dated December 31, 1997, the Board ruled
that “[a] party is not required under KRS 342.281 to file a
petition for reconsideration before raising on appeal such an
error of law.
Such an error is not an error patent upon the face
of the award, as contemplated by KRS 342.281.”
The Special Fund argues that, considering KRS 342.281,1
the retroactive application of KRS 342.730(4) constitutes a
patent error appearing on the face of the award, so that Zack’s
failure to raise that issue before the ALJ by way of a petition
for reconsideration bars her appeal of that issue to the Board.
For that proposition, the Special Fund relies upon Eaton Axle
1
KRS 342.281 reads:
Within fourteen (14) days from the date of
the award, order, or decision any party may
file a petition for reconsideration of the
award, order, or decision of the arbitrator
or administrative law judge. The petition
for reconsideration shall clearly set out the
errors relied upon with the reasons and
argument for reconsideration of the pending
award, order, or decision. All other parties
shall have ten (10) days thereafter to file a
response to the petition. The administrative
law judge shall be limited in the review to
the correction of errors patently appearing
upon the face of the award, order, or
decision and shall overrule the petition for
reconsideration or make any corrections
within ten (10) days after submission.
-3-
Corp. v. Nally, Ky., 688 S.W.2d 334 (1985),2 where our highest
Court held:
It is the decision of this court that
prospectively, from the date of this opinion,
no award, order or decision of the Workers’
Compensation Board shall be reversed or
remanded on appeal to any court because of
failure of said Board to make findings of an
essential fact unless such failure is brought
to the attention of the Board by Petition for
Rehearing pursuant to KRS 342.281.
Id. at 338.
In so holding, the Eaton Axle Court said:
It is our opinion that KRS 342.281 should be
utilized as a statutory counterpart of CR
52.04 and that before beginning the appellate
process which utilizes the court system, the
claimant, employer or any other party
involved in the case before the Workers’
Compensation Board seeks an appeal on errors
which are patent upon the face of the award,
order or decision, he must first file a
Petition for Reconsideration pursuant to KRS
342.281. (Emphasis added).
Id. CR 52.04 provides:
A final judgment shall not be reversed or
remanded because of the failure of the trial
court to make a finding of fact on an issue
essential to the judgment unless such failure
is brought to the attention of the trial
court by a written request for a finding on
that issue or by a motion pursuant to Rule
52.02.
Because the Eaton Axle case equates KRS 342.281 with CR
52, we believe its holding that no decision of the Board shall be
reversed for failure to make findings of an essential fact unless
2
Eaton Axle was decided prior to the present statutory
scheme.
-4-
a petition for reconsideration is filed with the Board is limited
to instances where patent error exists with respect to findings
of fact, as opposed to errors of law.
Such an interpretation
appears to us to be confirmed by our highest Court in Osborne v.
Pepsi-Cola, Ky., 816 S.W.2d 643 (1991), a case decided under our
current Workers’ Compensation administrative scheme.
There, the
Court said:
When we decided Eaton Axle, the Workers’
Compensation Board decided claims. Then, we
held patent errors must be addressed to the
Workers’ Compensation Board via a petition
for reconsideration. Now, under appropriate
circumstances, a petition for reconsideration
must bring patent errors on the face of an
award to the attention of the administrative
law judge. Absent a petition for
reconsideration, the administrative law
judge’s findings shall be conclusive and
binding on all questions of fact. KRS
342.285(2).
Id. at 645 (emphasis added).
In Smith v. Dixie Fuel Co., Ky., 900 S.W.2d 609, 612
(1995), our highest Court confirmed its ruling in Eaton Axle.
Referring to the 1994 amendment to KRS 342.281, which provided
that a party’s failure to file a petition for reconsideration
before the ALJ would not preclude an appeal to the Board on any
issue, the Court said:
Furthermore, we conclude that the amendment
had the effect of restating the principle of
Eaton Axle v. Nally, supra, as it existed
before the decision in Osborne v. Pepsi-Cola,
supra, which principle is that a patent error
or omission of fact in a workers’
compensation decision which has not been
preserved before the Board may not be the
subject of judicial review.
-5-
We believe the foregoing authorities require the filing
of a petition for reconsideration to review patent errors of fact
or the omission of essential facts.
However, in this case, the
ALJ’s erroneous retroactive application of KRS 342.730(4) appears
to us to be an error of law.
Since an error of law was involved,
rather than a question of fact, we do not believe that KRS
342.281 requires filing a petition for reconsideration of that
issue as a prelude to an appeal to the Board.
The Special Fund argues that Wells v. Beth-Elkhorn Coal
Corp., Ky. App., 708 S.W.2d 104 (1986) stands for the proposition
that, for purposes of KRS 342.281, patent errors include errors
of law.
However, we agree with Zack that the Court in Wells
simply indicated that the Workers’ Compensation Board, under the
administrative scheme then in existence, had jurisdiction to
correct errors of law.
We do not read that case as holding a
petition for reconsideration is required to be filed on an issue
of law.
For the foregoing reasons, we affirm the opinion of the
Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR PATRICIA T. ZACK:
David W. Barr
Louisville, Kentucky
Bixler W. Howland
Louisville, Kentucky
BRIEF FOR SUBURBAN MEDICAL
CENTER:
Timothy P. O’Mara
-6-
Louisville, Kentucky
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