FLUOR CONSTRUCTION INTERNATIONAL, INC. v. LARRY KIRTLEY; GARDNERS SERVICE COMPANY; SPECIAL FUND; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 29, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002572-WC
FLUOR CONSTRUCTION INTERNATIONAL,
INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-30526
v.
LARRY KIRTLEY; GARDNERS SERVICE
COMPANY; SPECIAL FUND; HONORABLE
DONALD G. SMITH, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON, AND McANULTY, JUDGES.
DYCHE, JUDGE:
Fluor Construction International, Inc., petitions
this court for review of an opinion of the Workers’ Compensation
Board (“Board”) dismissing its appeal from an order of the
Administrative Law Judge (“ALJ”).
We reluctantly affirm.
Fluor had petitioned the ALJ for reconsideration of an
award adverse to it.
On March 30, 2000, the ALJ signed an order
denying the petition.
Pursuant to 803 KAR 25:010E §1(5), that
order was deemed “filed” three days later.
Unfortunately, the
order was not mailed to counsel of record for Fluor, who did not
find out about the existence of the order until May 5, 2000, when
he called to inquire about it.
On May 8, he filed a motion for
the order to be set aside and reissue the order so that his
appeal would not be untimely.
The ALJ granted that motion on May
30, and Fluor filed a Notice of Appeal to the Board on June 9,
2000.
The Board raised the issue of its jurisdiction to hear
the appeal sua sponte, remarking that, “Failure to file a timely
notice of appeal is a jurisdictional defect that is fatal to the
appeal.”
(Citations omitted.)
It further stated that the “fact
that Fluor’s counsel was not served with a copy of the order on
petition for reconsideration excuses it from filing a timely
notice of appeal.”
The Board applied CR 77.04(4) to this
situation:
Failure of the trial court to require service
of notice of entry of any judgment or order
under this rule or the failure of the clerk
to serve such notice, or the failure of a
party to receive notice, shall not affect the
validity of the judgment or order, and does
not affect the time to appeal or relieve or
authorize the court to relieve a party for
failure to appeal within the time allowed,
except as permitted in Rule 73.02(1).
CR 73.02(1) allows the trial court, upon a showing of “excusable
neglect,” to extend the time for taking an appeal for not more
than 10 days from the expiration of the original time.
While we sympathize with the plight of counsel for
Fluor, we can find no authorization in the Kentucky
Administrative Regulations for the action of the ALJ, who was, we
are sure, only trying to be fair.
-2-
And, assuming that the
adoption by the Board of the provisions of CR 77.04(4) is proper,
not even the exception provided for in CR 73.02(1) saves the
appeal.
If the Kentucky Supreme Court, the General Assembly, or
the writers of the Administrative Regulations deem this problem
to be antithetical to the administration of justice, perhaps one
of those bodies will remedy this situation.
Until then, we find
no relief for Fluor.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
SPECIAL FUND:
James G. Fogle
Louisville, Kentucky
Joel D. Zakem
Frankfort, Kentucky
-3-
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