WHITAKER COAL CORPORATION v. WAYNE ROBINSON
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RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001558-MR
WHITAKER COAL CORPORATION
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS COMBS, JUDGE
ACTION NO. 98-CI-00168
v.
WAYNE ROBINSON
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Whitaker Coal Company (WCC) appeals from a
final judgment of the Perry Circuit Court entered June 2, 1998,
which ordered it to commence payment of workers’ compensation
benefits to Wayne Robinson (Robinson).
We vacate and remand.
This case has a long, grievous and tortured history.
Robinson filed a claim for retraining incentive benefits (RIB) in
August 1993.
The Administrative Law Judge (ALJ) entered an
opinion and award of RIB in favor of Robinson on April 14, 1994.
WCC filed a petition for reconsideration citing House Bill 928
which was denied.
WCC then appealed to the Workers’ Compensation Board
(the Board).
By an order entered August 19, 1994, WCC’s appeal
was placed in abeyance pending a decision of the Kentucky Supreme
Court in Thornsbury v. Aero Energy, Ky., 908 S.W.2d 109 (1995).
Following the Supreme Court’s decision in Thornsbury, the Board
reversed the ALJ’s decision and remanded based on Thornsbury by
opinion and order entered December 8, 1995.
On remand, the ALJ dismissed Robinson’s claim by order
entered December 14, 1995.
Robinson then sought relief from the
Board, which reversed the dismissal and remanded the matter for
entry of an award in compliance with KRS 342.732.
Upon this remand, the ALJ entered an award on
September 23, 1996, granting benefits pursuant to Thornsbury.
Still not happy, Robinson once again appealed to the board.
Subsequent to his appeal, Robinson asked that his claim be again
held in abeyance pending the ruling of the Kentucky Supreme Court
in Meade v. Spud Mining, Ky., 949 S.W.2d 584 (1997), and the
Board complied by order entered October 18, 1996.
Following the rendering of Supreme Court’s decision in
Meade, the Board removed the case from abeyance and based on
Meade rendered a decision on October 3, 1997.
The Board remanded
this claim back to the ALJ with instructions to “enter a specific
order directing payment of benefits in accordance with the
language of KRS 342.732(1)(a) payable for a period of 208
consecutive weeks upon the finality o the amended award.”
The
Board further added that “this matter is REMANDED for the entry
of a “final” award in accordance with [Meade].”
Robinson then appealed the Board’s 1997 opinion to this
Court on October 14, 1997.
WCC moved to dismiss Robinson’s
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petition for review, arguing that the Board’s order was
interlocutory and thus not appealable.
Instead of waiting for this Court to either rule on
WCC’s motion to dismiss or his petition for review, Robinson
filed a motion with the ALJ on October 31, 1997, requesting that
WCC be ordered to commence payment of RIB on the ground that he
had been awarded benefits on April 14, 1994, and had been laid
off from his current employer on October 17, 1997.
On
November 10, 1997, Robinson filed a motion with this Court
seeking dismissal of his appeal, which was granted by order
entered December 18, 1997.
Subsequent to the dismissal of his
appeal, Robinson renewed his motion for commencement of payment
of benefits on December 29, 1997.
As if the waters were not muddy enough already, the
Board reentered the fray on January 16, 1998, when it entered
what appears to be a sua sponte order which stated:
The Board having been advised that the
Kentucky Court of Appeals has dismissed the
appeal before it pursuant to petitioner’s
motion and being otherwise sufficiently
advised,
IT IS HEREBY ORDERED, on the Board’s own
motion, that the herein claim be and the same
is REMANDED to the Administrative Law Judge
for consideration of petitioner’s motion to
commence payment of benefits.
This was followed by WCC’s filing of a petition for
reconsideration and motion to once again hold the claim in
abeyance pending the Kentucky Supreme Court’s decision in
Colonial Coal Co. v. Breeding, Ky., 975 SW. 914 (1998).
In a
further reply brief filed by WCC on January 28, 1998, WCC pointed
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out that the ALJ had not yet ruled on Robinson’s motion to
commence payment and again asked that the claim be placed in
abeyance.
WCC’s motion was granted by an order of the ALJ
entered February 10, 1998.
Robinson attempted to appeal the
February 1998 order to the board, but his appeal was dismissed by
the Board on March 16, 1998, on the ground that it was
interlocutory.
At some point in time during March 1998, Robinson filed
a complaint to enforce a workers’ compensation award in the Perry
Circuit Court.
In his complaint, Robinson alleged:
(1) By Opinion and Award dated April 14,
1994, and Amended Award dated September 23,
1996, the defendant was responsible for
paying Workers’ Compensation Benefits to the
Plaintiff.
(2) All appeals in this action were final as
of December 18, 1997.
(3) The defendant/employer has refused to pay
the Award; therefore, this action is being
filed Perry Circuit Court to enforce the
payment of same.
WCC argued that the trial court lacked jurisdiction over the
matter on the ground that the order Robinson sought to enforce
had never become final due to entry of the Board’s order
remanding the matter to the ALJ for consideration of Robinson’s
motion to commence payment.
On June 5, 1998, the trial court
entered a final judgment finding that the action was final and
enforceable as of December 18, 1997, and ordering WCC to commence
payment of benefits.
Following the trial court’s entry of judgment, WCC
filed this current appeal.
Not surprisingly though, the filing
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of WCC’s appeal did nothing to stop the piecemeal procedure of
this matter, as on November 30, 1998 the ALJ entered an order on
remand holding:
That Plaintiff shall be entitled to
receive from the Defendant/Employer the sum
of $155.98 per week for a period not to
exceed 208 weeks, together with interest
thereon at the rate of 12% per annum on all
due and unpaid installments, and the
Defendant/Employer shall take credit for any
and all payments heretofore paid towards this
award. Inasmuch as this case became final on
or about December 18, 1997, pursuant to the
opinion by the Court of Appeals, this award
shall commence as of that date.
WCC moved to set aside the order on remand arguing that the
matter was presently pending before this Court.
The ALJ denied
WCC’s motion by order entered December 18, 1998, and WCC appealed
to the Board.
On February 19, 1999, the Board entered an opinion
and award stating:
Whitaker now appeals requesting that the
Board enter an order setting aside and
holding for naught the ALJ’s order on remand
dated November 24, 1998. As grounds
therefor, Whitaker cites to an enforcement
action filed by Robinson in the Perry Circuit
Court in March 1998 which is now on appeal to
the Court of Appeals. The issue presently
pending before the Court is the finality of
the RIB award.
Accordingly, the Board being otherwise
sufficiently advised, it is hereby ordered on
the Board’s own motion that this appeal be
and the same is HELD IN ABEYANCE pending a
final appellate resolution or dismissal of
Whitaker coal Co. v. Wayne Robinson, 1998-CA001558-MR.
Not to be outdone by WCC, Robinson filed a motion to
dismiss with this Court on December 11, 1998 arguing that:
(1) The Appellee filed a original action
in Perry Circuit Court to enforce a Workers’
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Compensation Award. There was a dispute as
to whether the Workers Compensation Award was
final or not. The Workers’ Compensation
action is now final. Although the Appellant
filed this appeal with this Court, the
Appellee, Wayne Robinson is advising this
Court that he will not be seeking any
enforcement action in the Perry Circuit Court
claim on the case number he filed below, from
which this present appeals stems. Therefore,
there being no reason for this Court to issue
any ruling as the issued raised below are
moot, the Appellee believes this appeal
should be dismissed.
Robinson’s motion was denied by a three-judge panel of
this Court on January 15, 1999.
WCC argues that the trial court’s judgment should be
reversed because Robinson is seeking to enforce an interlocutory
order. WCC also contends that under KRS 342.305, a claimant can
seek enforcement of a workers’ compensation award at the circuit
court level only when the decision has not been appealed.
First, WCC’s argument pertaining to KRS 342.305 is
without merit.
We have reviewed that statute and find no
language in it which even marginally supports WCC’s argument.
Although KRS 342.305 does allow for enforcement of “an award of
the administrative law judge unappealed from,” it also allows for
enforcement of “an award of the board rendered on appeal.”
If
WCC’s interpretation of KRS 342.305 is correct, it would mean
that a party’s right to seek enforcement of an award at the
circuit court level would be foreclosed by virtue of the fact
that the opposing party sought appellate review.
Such a result
would be ludicrous.
WCC also maintains that the Board’s opinion and order
of October 3, 1997 is interlocutory.
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Again, we disagree.
By
virtue of the fact that Robinson voluntarily dismissed his appeal
coupled with the fact that WCC did not seek further review of the
order, that order became final and thus capable of enforcement at
the circuit court level.
Having held that the Board’s order is final and
enforceable, however, we are still of the opinion that it was
improper for the trial court to enter a judgment in this case.
Although we do not have the official workers’ compensation record
before us, it appears that Robinson was awarded RIB’s which he
would not be able to recover until he left employment in the
mining industry.
It appears that the Board’s opinion of
October 3, 1997, affirmed the RIB award.
From the language of his motion to commence benefits
filed before the ALJ on October 31, 1997, it appears that
Robinson left the mining industry when he was laid off from his
current employer, thus triggering his right to receive the RIB
benefits under the Board’s October 1997 order.
Until Robinson’s
entitlement to the award has been established, which it does not
appear has occurred, there is no award to be enforced.
In so ruling, we rely on Armour Co. V. Hardin, Ky., 432
S.W.2d 38 (1968), for support of our decision.
In Armour, the
Court held that “the circuit court has no authority to enter
judgment enforcing an award while a motion to reopen is pending.”
Armour, 432 S.W.2d at 39.
Although this case does not involve a
motion to reopen, we believe that Robinson’s motion to commence
payment is akin to a motion to reopen in that it asks the ALJ to
make a determination as to whether he is now entitled to receive
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the RIB award.
If the rationale of Armour does not apply, then
we are stuck with the situation we have now where the claimant
has a final judgment in an enforcement action on a claim which is
still pending before the ALJ.
It is absolutely incredulous to
this Court that this matter is now spread out over three
different tribunals at the same time.
Based on the foregoing, the final judgment of the Perry
Circuit Court is vacated, and this matter is remanded with
instructions to dismiss Robinson’s complaint.
Only if (1) a
determination is rendered allowing Robinson to begin to receive
RIB benefits is made and affirmed and if appealed (2) WCC ignores
the award would an enforcement action be proper.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles W. Berger
Harlan, KY
Ricky D. Bailey
Manchester, KY
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