APEX MINERALS v. TERRY PRICE AND APEX MINERALS TERRY PRICE; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: June 22, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001818-MR
APEX MINERALS
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
CIVIL ACTION NO. 00-CI-00584
v.
TERRY PRICE
APPELLEE
AND
2000-CA-002149-WC
APEX MINERALS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-98-01752
TERRY PRICE; DONALD G. SMITH,
Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and TACKETT, Judges.
HUDDLESTON, Judge:
In these consolidated appeals Apex Minerals
appeals from a Pike Circuit Court order granting Terry Price’s
motion for judgment on the pleadings due to Apex’s failure to
properly file a petition for reconsideration or notice of appeal
within 30 days of an Administrative Law Judge’s decision.1
Apex
also appeals a decision of the Workers’ Compensation Board which
dismissed Apex’s appeal of the ALJ’s decision to dismiss Apex’s
renewed motion for reconsideration.
On November 6, 1998, Price filed an application for
Resolution of Injury Claim against Apex claiming work-related
injuries to his neck, back and leg in August 1997.
An ALJ awarded
a 15% permanent impairment rating to Price, based on the testimony
of two physicians.2
Apex attempted to file a petition for reconsideration of
the ALJ’s award.
Apex asserts that the petition was placed in an
envelope properly addressed to the Department of Workers’ Claims
and affixed with proper postage and mailed.
reached the Department of Workers’ Claims.
The petition never
On May 1, 2000, Price
filed a petition to enforce the award, pursuant to Kentucky Revised
Statute (KRS) 342.305, in Pike Circuit Court.
On May 10, 2000,
Apex filed a renewed petition for reconsideration.
In an order
dated May 30, 2000, the ALJ overruled the renewed petition.
Price’s motion for judgment on the pleadings was granted
by Pike Circuit Court on June 27, 2000.
A separate order was
1
Pike Circuit Court entered two orders. The first order,
entered June 27, 2000, granted Price’s motion for judgment on the
pleadings.
The second order, entered July 20, 2000, granted
Price’s motion for costs and attorneys’ fees. Price argues that
Apex’s notice of appeal to this Court was untimely because the
notice was not filed within 30 days from the June 27 order. Even
though Apex appeals from the substance of the June 27 order, it had
30 days from the July 20 order to file its appeal, and its notice
of appeal, filed July 28, 2000, was timely.
2
The 15% figure was arrived at by taking the 10% impairment
rating assigned to Price multiplied by 1.5, the multiplier under
Ky. R. Stat. (KRS) 342.430(1)(c)(1).
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entered on July 17, 2000, awarding Price’s attorneys a fee and
costs.
While Price’s motion for judgment on the pleadings was
pending, Apex filed a notice of appeal to the Workers’ Compensation
Board, dated June 28, 2000, from the ALJ’s decision to overrule
Apex’s renewed petition for reconsideration.
On August 9, 2000,
the Board dismissed Apex’s appeal, holding that the ALJ lacked
jurisdiction to enter the May 30, 2000, order overruling the
renewed petition for reconsideration.
Apex appeals from the order of Pike Circuit Court and
from the opinion of the Board dismissing its appeal of the ALJ’s
decision.
Apex argues that Pike Circuit Court erred in enforcing
the ALJ’s award because the Department of Workers’ Claims never
lost jurisdiction of Price’s claim.
Further, Apex contends, it
substantially complied with the filing requirement of KRS 342.281
by properly addressing, affixing postage to and depositing the
petition for reconsideration in the mail.
The initial issue to be resolved is whether depositing a
petition
for
reconsideration
in
the
mail
constitute a “filing” under KRS 342.281.
is
sufficient
to
KRS 342.281 provides
that:
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
administrative law judge. . . . The [ALJ] shall be
limited
in
the
review
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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 correction within ten (10)
days after submission.3
The Supreme Court has held that a party is required to file a
petition for reconsideration with the finder of fact before an
issue is preserved for appellate review.4
Therefore, if it is
determined that mailing a petition for reconsideration is not
sufficient to constitute a filing, then the action of the Board and
Pike Circuit Court must be affirmed.
As Price correctly points out, it is undisputed that the
Department of Workers’ Claims did not receive Apex’s petition for
reconsideration.
For
this
reason,
we
must
affirm
the
granting Price’s motion for judgment on the pleadings.
order
As we
observed in Rice v. McCoy,5 “[u]nder Workmen’s Compensation Board
Regulation 803 KAR 25:010, Section 1,(7), ‘[t]he date of filing is
the date the pleading, motion or other document is received by the
board at its office at Frankfort, Kentucky.’”6
3
We went on to say
Emphasis supplied.
4
See Eaton Axle Corp. v. Nally, Ky., 688 S.W.2d 334, 338
(1985); see also Halls Hardwood Floor Co. v. Stapleton, Ky. App.,
16 S.W.3d 327, 330 (2000) (explaining that the holding in Eaton
Axle, that a petition for reconsideration must be filed in order to
preserve an issue for appellate review, was reinstated by the
General Assembly in 1996 by the deletion of language that failure
to file such a petition did not preclude an appeal).
5
Ky. App., 590 S.W.2d 340 (1979).
6
Id. at 341 (emphasis supplied). The current section of the
Kentucky Administrative Regulations is 803 KAR 25:010(1)(5), which
states “‘Date of filing’ means the date a pleading, motion, or
(continued...)
-4-
that “KRS 342.281 is mandatory; a showing of good cause offers no
relief
from
its
provisions.”7
Thus,
if
the
petition
for
reconsideration is not received by the Department of Workers’
Claims, the petition has not been timely filed even though it was
mailed in time to reach the board.
Apex directs our attention to Smith v. Goodyear Tire and
Rubber Co.8 for the proposition that substantial compliance with
KRS 342.281 is sufficient.
case.
Smith is distinguishable from this
In Smith the appellant met the requirement of Kentucky Rule
of Civil Procedure (CR) 76.40(2) by properly and timely forwarding
a petition for review of a Workers’ Compensation Board’s opinion by
registered mail. However, the filing fee was not “timely” received
with the petition.
This Court held that the appellant had timely
placed the Court on notice of the appellant’s desire for review of
the Board’s opinion, and that the appellant had substantially
complied
with
the
filing
requirement.
In
this
case,
Apex’s
petition for reconsideration was never received.
“Filing” under KRS 342.281 means that the petition for
reconsideration must be received by the Department of Workers’
Claims.9
Simply mailing the petition is inadequate to meet the
filing requirement.
Under KRS 342.281, Apex had fourteen days to
6
(...continued)
other document is received by the commissioner at the Department of
Workers’ Claims in Frankfort, Kentucky, . . .”
7
Rice, supra, n. 5, at 341, citing Johnson v. Eastern Coal
Corp., Ky., 401 S.W.2d 230, 231 (1966).
8
Ky. App., 772 S.W.2d 640 (1989).
9
803 KAR 25.010(1)(5).
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file a petition for reconsideration of the ALJ’s award.
Apex
failed to do this, and Price properly filed in Pike Circuit Court
a motion to have the ALJ’s award enforced.10
The decision of the Board dismissing Apex’s appeal of the
decision of the ALJ is affirmed.
Likewise, the Pike Circuit Court
order granting Price’s motion for judgment on the pleadings is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. Stuart Bennett
JACKSON & KELLY, P.L.L.C.
Lexington, Kentucky
John T. Chafin
KAZEE, KINNER, CHAFIN,
HEABERLIN & PATTON
Prestonsburg, Kentucky
10
See Pierce v. Russell Sportswear Corp., Ky. App., 586
S.W.2d 301, 303 (1979).
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