DONNIE R. OSBORNE v. MOUNTAIN CONSTRUCTION COMPANY; ROBERT WHITAKER, Acting Director of SPECIAL FUND; RONALD W. MAY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
November 19, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.1999-CA-000437-WC
DONNIE R. OSBORNE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. 96-97945 AND 97-02358
MOUNTAIN CONSTRUCTION COMPANY;
ROBERT WHITAKER, Acting Director
of SPECIAL FUND;
RONALD W. MAY, Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GARDNER and HUDDLESTON, Judges.
HUDDLESTON, Judge: Donnie R. Osborne brings this appeal after the
Workers’ Compensation Board affirmed an Administrative Law Judge’s
decision to dismiss Osborne’s request for a hearing.
On April 9, 1998, an arbitrator determined that Osborne
had sustained a work-related injury and awarded him benefits based
on a 20 percent permanent partial disability.
The arbitrator
dismissed his claim arising from an occupational disease, coal
workers’ pneumoconiosis.
On April 28, 1998, Osborne’s counsel
allegedly sent a request for a hearing before an ALJ seeking to
have the arbitrator’s decision reviewed, but the Board did not
receive the request.
Approximately two and one-half months after
sending the request, Osborne’s attorney contacted the Board and
learned that it had not been received.
Osborne’s attorney claims
that he spoke with an employee at the Board’s office who told him
to file another copy of the appeal request.
his appeal request on August 10, 1998.
Osborne finally filed
The ALJ granted Mountain’s
motion to dismiss Osborne’s appeal because Osborne’s appeal was not
timely, and the Workers’ Compensation Board affirmed the ALJ’s
decision.
This appeal followed.
Kentucky
Revised
Statutes
(KRS)
342.270
and
342.275
delineate the time frame for an appeal of an arbitrator’s decision.
KRS 342.270(5) provides that:
set
forth
in
KRS
342.275,
“[u]nless timely appeal is filed as
the
written
determination
of
the
arbitrator shall be a final order enforceable under the provisions
of KRS 342.305.”
KRS 342.275(1) provides that “[w]ithin thirty
(30) days after the filing of the benefit review determination with
the commissioner, any party may appeal that determination by filing
a request for hearing before an administrative law judge.”
Even if Osborne’s attorney mailed an appeal to the Board
within the prescribed statutory period, it was not received and
filed.
This Court addressed this issue in Revenue Cabinet v. JRS
Data Systems, Inc.1
In that case, we interpreted former KRS
131.340(2), which dealt with the appeal of tax assessments, to
determine what the word “filing” meant as used in the statute.
KRS
131.340(2) then provided that any party could appeal an adverse
1
Ky. App., 738 S.W.2d 828 (1987).
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decision “by filing a complaint or petition of appeal before the
board within thirty (30) days from the receipt by such aggrieved
party of the agency’s ruling, order, or determination.”2
In
interpreting the language of the statute, we noted that
[I]t is clear that the mere act of depositing a legal
document in the mail, although a proper method for
transmitting to a public office a document which is
required to be filed, does not as such amount to a
“filing” of the document.
On the contrary, until such
time as the document actually arrives at the appropriate
office, it has not been “filed” for purposes of a statute
mandating its filing.3
As defined in JRS Data Systems, the filing of an appeal
did not occur until the documents were received by the Board.
If
the documents were time stamped and placed in the case file, there
would also be evidence that a filing had occurred.
Similarly, if
the appeal had been sent to the Board by certified mail with return
receipt requested and Osborne could provide evidence that the
appeal had been received, the return receipt would have been
sufficient evidence that the appeal had been received. A party who
sends a document to be filed through the mail does so at his own
peril if he does not provide a way of proving receipt.
In this case, Osborne offers no evidence that the appeal
was actually received by the Board. The affidavit signed by his
2
Id. at 829 (citing KRS 131.340(2) (modified 1986))
(emphasis omitted).
3
Id. at 830.
-3-
attorney only indicates service of the appeal by mail on the Board
and opposing counsel.
Osborne’s appeal was not filed with the
Board until August 10, 1998.
Kentucky’s highest court noted in Kendrick v. Fields when
discussing the appeal process of the workers’ compensation claims
under the statutes in existence at the time, “[t]he language of the
statute is plain as to the time to which to appeal.
The time
within which a petition for review must be filed is mandatory, and
if it is not complied with the . . . [reviewing body] acquires no
jurisdiction.”4
Failing to meet the statutorily prescribed period
for an appeal is fatal and bars further relief.
Because Osborne
did not file his appeal within the time prescribed by KRS 342.275,
the ALJ lacked jurisdiction to it.
The Workers’ Compensation Board’s decision affirming the
dismissal of Osborne’s request for a hearing is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
MOUNTAIN CONSTRUCTION COMPANY:
Mark D. Goss
Harlan, Kentucky
David Schwetschenau
STOLL, KEENON & PARK, LLP
Lexington, Kentucky
4
Kendrick v. Fields, Ky., 384 S.W.2d 64, 64 (1964) (citing
Carnahan Oil & Ref. Co. v. Miller, Ky., 232 Ky. 78, 22 S.W.2d 430
(1929). See also Department of Highways v. Matney, Ky., 290 Ky.
440, 161 S.W.2d 617 (1942)); Forest Hills Developer v. Public
Serv. Comm’n, Ky. App., 936 S.W.2d 94, 96 (1996) (when a “statute
prescribes the method for taking an appeal from an administrative
action and the time in which the appeal must be taken, these
requirements are mandatory and must be met in order for the . . .
[reviewing body] to obtain jurisdiction to hear the case”)
(quoting Frisby v. Board of Educ. of Boyle County, Ky. App., 707
S.W.2d 359, 361 (1986)).
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