LESTER RATLIFF V. RALPH BREWER D/B/A R & S TRUCKING; ROBERT L. WHITTAKER, DIRECTOR OF THE SPECIAL FUND; W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD
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RENDERED: May 5, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001762-WC
LESTER RATLIFF
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-90-41623
v.
RALPH BREWER D/B/A R & S TRUCKING;
ROBERT L. WHITTAKER, DIRECTOR OF THE
SPECIAL FUND; W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE, AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUDGEL, CHIEF JUDGE; KNOPF AND McANULTY, JUDGES.
KNOPF, JUDGE:
Lester Ratliff appeals from a July 19, 1999,
opinion of the Workers Compensation Board affirming a decision by
an Administrative Law Judge (ALJ) that ordered restitution of
Ratliff’s disability benefits.
Ratliff maintains that there was
insufficient competent evidence to sustain the finding that
restitution is appropriate.
We disagree and so affirm the
decision by the Board.
In May 1994, Ratliff was awarded benefits for total
occupational disability.
His disability allegedly stemmed from
injuries he suffered in August 1990 when he leapt from a run-away
coal truck.
He filed his claim for benefits in November 1992.
Pursuant to that claim Ratliff twice testified, in April and
August 1993, that he had not been employed since the day of his
injury.
In November 1994, Ratliff’s former employer, R & S
Trucking, Inc., moved to reopen Ratliff’s claim on the ground
that Ratliff had procured his benefits by fraud.
R & S’s owner,
Ralph Brewer, alleged that throughout 1992 Ratliff had worked for
R & S on an informal basis and that in August of that year
Ratliff had leased from R & S a tractor-trailer rig suitable for
hauling coal and rock.
Ratliff’s claim was reopened as of
December 9, 1994.
From then until April 1999, when the ALJ issued his
final opinion, the parties engaged in procedural sparring and
inundated the record with mutual recriminations.
Ratliff denied
having done anything more for R & S after his injury than odd
jobs, and, while he admitted that he had intended to lease from R
& S a tractor-trailer for his son, he denied that the arrangement
had ever come to fruition.
The tractor had needed a new engine,
Ratliff maintained, but in December 1992, before it had been made
fully operable and before it had come into his possession, it had
been destroyed in a wreck.
Of particular concern to this appeal is a motion by R &
S in December of 1997 to submit into evidence documents
substantiating Brewer’s allegations.
The documents included
receipts for fuel charged to R & S during 1992 and signed by
Ratliff; a lease-purchase contract for the tractor-trailer,
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executed by Ratliff and Brewer in August 1992; and insurance
records showing that Ratliff had purchased coverage for the
tractor-trailer and had filed a claim following the December 1992
wreck.
The insurance report also indicated that Ratliff had been
operating the tractor when it had gone out of control and crashed
over an embankment.
Ratliff moved to have these documents
stricken from the record, or, alternatively, to be granted time
to respond to them.
The ALJ granted him time to respond.
Ratliff eventually admitted having purchased insurance and having
endorsed the benefit checks following the wreck, but he claimed
to have done both at Brewer’s behest and to have given the
endorsed checks to Brewer.
He denied that he had been operating
the tractor when it was destroyed.
In his final opinion the ALJ expressed frustration with
both parties’ apparent lack of candor.
Relying heavily on the
documents submitted by Brewer, however, he found that Ratliff had
misrepresented his workers’ compensation claim and was liable,
therefore, for restitution.
On appeal to the Board, Ratliff
argued that those documents should have been stricken because
they had been proffered without authentication, and that without
them there was insufficient evidence of his alleged fraud to find
him culpable.
Affirming this aspect of the ALJ’s decision,1
the
Board agreed with Ratliff that the documents may have been
improperly admitted into evidence, but ruled that he had failed
1
The ALJ determined that Ratliff was liable for restitution as of the date R & S filed its
motion to reopen. The Board ruled that the ALJ should have considered restitution from the
beginning of the award and remanded for that consideration. This portion of the Board’s ruling
has not been appealed.
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to preserve that issue for review.
His motion to strike, the
Board noted, had not specified any ground for objecting to the
documentary evidence, and even after the ALJ had pointed out this
defect, Ratliff had declined to elaborate.
Consequently, the
Board ruled that his explanation on appeal was too late.
Ratliff now argues that the Board erred by refusing to
review his evidentiary claim.
The ground for his motion to
strike, he asserts, was obvious, and thus his motion preserved
that obvious issue for review.
Even if the disputed documents
are included, Ratliff further argues, the evidence does not
support the conclusion that he procured his workers’ compensation
benefits fraudulently.
This latter argument need not long detain us, for, as
the parties acknowledge, our review of the agency’s factual
determinations is narrowly restricted.
Where, as in this
reopening, the party with the burden of proof was successful
before the fact finder, “the issue on appeal is whether
substantial evidence supported the [fact finder’s] conclusion.”
Whittaker v. Rowland, Ky., 998 S.W.2d 479, 481 (1999).
As the
ALJ noted, the documents R & S submitted, particularly the
insurance documents, provide that substantial evidence.
They
confirm Brewer’s testimony that Ratliff had resumed truck driving
for hire prior to receiving his workers’ compensation disability
award and they stand in diametric opposition to Ratliff’s sworn
testimony in the course of those proceedings.
If the documents
were validly considered, therefore, the decisions by the ALJ and
the Board must be affirmed.
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Were those documents validly considered?
Or, rather,
did the Board err by refusing to address that question?
We may
reverse the Board’s application of its procedural rules only if
it clearly erred.
S.W.2d 685 (1992).
Western Baptist Hospital v. Kelly, Ky., 827
We are not persuaded that it did.
With only minor variation, the Board has adopted the
judicial rules of evidence for proceedings before the ALJs.
KAR 25:010 § 15(1).
803
One of those rules, KRE 103, provides in
part as follows:
Error may not be predicated upon a ruling
which admits or excludes evidence unless a
substantial right of the party is affected;
and
(1) Objection. In case the ruling is one
admitting evidence, a timely objection or
motion to strike appears of record, and upon
request of the court stating the specific
ground of objection, if the specific ground
was not apparent from the context[.]
Unless the context made the ground of Ratliff’s motion
apparent, his failure to specify that ground precludes his
raising the issue on appeal.
We are not persuaded that the
ground of the objection was apparent.
Although authentication of
the documents may ordinarily have been an obvious question, in
tendering its motion to submit these documents, R & S cited 803
KAR 25:010 § 15(3) which provides in part that
[a]ny party may file as evidence before the
arbitrator or administrative law judge
pertinent material, and relevant portions of
hospital, Armed Forces, or Social Security
records. . . .
The ALJ could well have wanted help interpreting this
rule and so could rightly have thought that any earnest objection
to the documents would address it.
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Ratliff did not do so.
Moreover, the ALJ stated that among his reasons for overruling
the motion to strike was Ratliff’s failure to specify his
grounds.
Even if Ratliff had formerly believed that the ground
was obvious, he was thereupon put on notice that the ALJ did not
agree.
If he wished to pursue the matter, therefore, it behooved
Ratliff to make his objection specific.
There is one last point.
Ratliff’s motion to strike requested extra time to reply as
alternative relief, and the ALJ granted him that extra time.
Having obtained the relief that he himself requested, Ratliff
will not now be heard to complain that the ALJ erred.
For these reasons, we agree with the Board that Ratliff
waived his right to object on appeal to the admission of R & S’s
documentary evidence.
We also agree that the evidence of record
supports the ALJ’s finding that Ratliff obtained workers’
compensation benefits by fraud and so should be required to make
restitution.
Accordingly, we affirm the Board’s July 19, 1999,
order.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE RALPH
BREWER D/B/A R & S TRUCKING:
G. C. Perry, III
Perry, Preston and Miller
Paintsville, Kentucky
Jeffrey D. Damron
Riley & Walters, P. S. C.
Prestonsburg, Kentucky
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