ROBERT L. WHITTAKER, DIRECTOR OF WORKERS' COMPENSATION FUNDS, SUCCESSOR TO SPECIAL FUND v. CARL S. GLASS; TOWN & COUNTRY FORD ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
December 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001166-WC
ROBERT L. WHITTAKER, DIRECTOR OF
WORKERS’ COMPENSATION FUNDS,
SUCCESSOR TO SPECIAL FUND
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-87-25781
v.
CARL S. GLASS; TOWN & COUNTRY FORD
(SETTLED); HON. DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE EMBERTON, CHIEF JUDGE, SCHRODER AND TACKETT, JUDGES.
TACKETT, JUDGE:
The Special Fund appeals from a judgment of the
Workers’ Compensation Board rendered May 8, 2002, which affirmed
an opinion and award entered by an Administrative Law Judge on
January 3, 2002, finding Carl Glass to be totally occupationally
disabled on reopening and apportioned 50% of the liability to the
Special Fund.
On appeal, the Special Fund argues that the
reopening was not timely filed and that it was not joined as a
party in a timely matter.
We affirm.
Glass sustained a work-related back injury during the
course of his employment with Town & Country Ford on June 18,
1987.
This claim was settled between Glass and Town & Country
without the participation of the Special Fund.
In this
settlement, Glass received a lump sum payment of $62,000.00,
representing a 70.5% occupational disability.
On February 23, 1994, Glass filed a motion to reopen,
which was voluntarily dismissed.
On October 23, 1995, Glass
again filed a motion to reopen.
This motion was denied due to
Glass’s failure to establish a prima facie increase in
occupational disability.
The Special Fund was not named as a
party in either motion to reopen.
On December 10, 2000, Glass’s wife, Joyce, faxed a
letter to the Department of Workers Claims seeking to reopen her
husband’s claim.
Within a week after the date of the fax, Joyce
received a letter from the Commissioner’s office stating that the
Department of Workers Claims had received the fax but Glass
needed to mail two original copies of the faxed documents.
Joyce
immediately mailed the original copies to the Commissioner’s
Office, which were filed and bear a date stamp of December 13,
2000.
The ALJ, after finding that Glass served his motion on his
former employer, granted the motion to reopen.
Glass filed a motion to join the Special Fund as a
party on March 30, 2001.
In support of this motion, Glass argues
that no liability accrued to the Special Fund until June 2000,
-2-
when Dr. Martyn Goldman performed an independent medical
examination on Glass.
During his examination, Dr. Goldman
diagnosed status postlaminectomy and diskectomy at L4-5 X2 and
status post bilateral posterolateral fusion at L4-5.
Dr. Goldman
assessed a 23% whole person impairment under the AMA Guidelines
to Glass, but did not believe Glass’s medical condition had
worsened since the 1992 settlement.
However, in a supplemental
report, Dr. Goldman stated that comments from Dr. Timir Banerjee,
who opined in 1988 that Glass’s work injury probably resulted in
an L5-S1 disc herniation and aggravated an old arthritic
condition, had nothing to do with the L4-5 lumbar spine level.
In her opinion, award and order, the ALJ found that the
parties knew of Dr. Banerjee’s report in 1988 and during the
attempts to reopen Glass’s claim in 1994 and 1995.
However, the
ALJ accepted Dr. Goldman’s opinion that Dr. Banerjee probably
referred to pre-existing arthritic changes at a level different
from that of the work injury.
Relying on this interpretation,
the ALJ found that no basis for joining the Special Fund existed
prior to 1992 and that Glass properly joined the Special Fund on
March 30, 2001.
Further, the ALJ also found that Glass timely
filed his motion to reopen by faxing and mailing a hard copy of
his motion to the Commissioner’s Office prior to the deadline.
The Board affirmed the ALJ’s decision.
This appeal followed.
In workers’ compensation, the standard of review is set
forth in Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687 (1992):
-3-
The function of further review of the [Board]
in the Court of Appeals is to correct the
Board only where the the [sic] Court
perceives the Board has overlooked or
misconstrued controlling statutes or
precedent, or committed an error in assessing
the evidence so flagrant as to cause gross
injustice.
As the finder of fact, the ALJ has sole authority to
assess and to evaluate the quality, character, and substance of
the evidence.
Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985).
If there is substantial evidence to support
the findings of fact, they may not be disturbed on appeal.
Evansville Printing Corporation v. Sugg, Ky. App., 817 S.W.2d 455
(1991).
The Special Fund argues that the Board erred in holding
that Glass’s motion to reopen his claim was timely filed,
pursuant to Kentucky Revised Statutes (KRS) 342.125, because the
hard copy of Glass’s letter was not filed in the record until
December 13, 2000.
We disagree.
KRS 342.125 was amended on December 12, 1996 to mandate
that all motions to reopen must be filed within four years of the
award or order or within four years of December 12, 1996,
whichever is later.
KRS 342.125(8).
Neither KRS nor the
regulations of the Workers’ Compensation Board address the filing
of an incomplete motion to reopen.
The statutes and regulations
also fail to provide for filing documents via facsimile
transmission.
The Board, however, compared Glass’s faxed,
incomplete motion to reopen to an incomplete Application of
-4-
Resolution of Injury Claim.
803 KAR 25:010E Section 3(2)
provides that incomplete applications may be rejected and
returned to the applicant and if the application is resubmitted
by the applicant within twenty days of the date it was returned,
the filing shall relate back to the date the application was
first received by the Commissioner.
Thus, using this analogy,
the Board accepted Glass’s argument that since the faxed motion
to reopen was received by the Commissioner prior to December 12,
2000, with a hard copy being filed on December 13, 2000, the
motion to reopen was timely filed.
In the absence of relevant case law, our inquiry is
whether the ALJ’s decision was permissible pursuant to the
administrative regulations.
In determining the application of a
statute or regulation, the applicable law must be construed
reasonably and liberally with the goal of applying the provisions
of the statute so as to effectuate its purpose, and to extend the
statute to every employee that can be fairly brought within its
provisions.
Bob White Packing Co. v. Hardy, Ky., 340 S.W.2d 245,
247 (1960); Wilson v. SKW Alloys, Inc., Ky. App., 893 S.W.2d 800,
802 (1995).
Furthermore, workers’ compensation claims are meant
to be practiced in a somewhat flexible manner and the ALJ is not
required to follow strict technical rules of procedure so long as
the parties are afforded administrative due process.
Estill
County Farm and Home Supply v. Palmer, Ky., 416 S.W.2d 752
(1967).
We realize that the administrative regulations do not
-5-
provide for the filing of pleadings by facsimile transmission.
However, we are compelled to agree with Glass’s assertion that
the filing of the motion to reopen was analogous to the filing of
an application for adjustment of claim.
Glass’ fax was timely
received at the Department and the hard copy was filed in the
record on December 13, 2000, which is within twenty days of the
fax.
Also, Joyce Glass testified that she was advised by the
Department how to file a reopening on behalf of her husband and
indeed followed those instructions.
Accordingly, we find that
the Board correctly found that Glass’s motion to reopen was
timely filed.
In the alternative, the Special Fund argues that the
ALJ abused her discretion in joining it as a party defendant.
We
disagree.
From 1987, the date of Glass’s injury, until 1990, and
from 1994 through the date of this reopening, KRS 342.120(2)
provided that the Special Fund should be named as a party, “. . .
as soon as practicable, by motion, unless there is a showing of
good cause, . . .”
The statute does not set out a specific time
frame for joining the Special Fund, but requires only that it be
joined “as soon as practicable.”
KRS 342.120(2) vests the ALJ
with broad discretion as to the time permitted for joining the
Special Fund.
Based upon the facts and circumstances of each
case, the ALJ must determine what is “as soon as practicable.”
Martin County Coal Corporation v. Preece, Ky. App., 924 S.W.2d
840, 841 (1996).
-6-
In the case before us, the ALJ found that the Special
Fund was joined timely pursuant to KRS 342.120(2), reasoning:
. . . However, the law in effect at the time
of reopening allowed Special Fund joinder ‘as
soon as practicable’ after potential
liability is known. See, KRS 342.120(2).
While Dr. Banerjee’s report was probably
known to the parties in 1988, the
Administrative Law Judge adopts Dr. Goldman’s
opinion that Dr. Banerjee probably referred
to pre-existing arthritic changes at a level
different from that of the work injury.
Therefore, no certain basis for Special Fund
joinder existed prior to the 1992 settlement
agreement and the record does not establish
any later evidence which would have mandated
Special Fund joinder prior to Dr. Goldman’s
June 4, 2000 report and June 14, 2001
supplemental report. Because no evidence of
record existed which would have led a prudent
party to believe that the Special Fund might
have some liability in this claim at the time
of the original settlement or at the time of
the 1992 reopening, the Administrative Law
Judge finds that the Special Fund was joined
as soon as practicable. This issue is
resolved in favor of Mr. Glass.
The Special Fund contends that the ALJ should have
followed KRS 342.120(2) as enacted from April 1990 until April
1994.
During this time, KRS 342.120(2) required the Special Fund
to be joined as a party no later than forty-five days prior to
the first scheduled pre-hearing conference.
This assertion is
incorrect.
Peabody Coal Co. V. Gossett, Ky., 819 S.W.2d 33 (1991)
stands for the proposition that the law in effect on the date of
an injury controls the rights and obligations of all parties in a
workers’ compensation proceeding.
A statutory enactment adopted
subsequently may apply in some cases depending on whether the
-7-
legislation is deemed remedial or procedural or is expressly
declared retroactive by the legislature.
Id at 36.
In the present case, the vested rights and
responsibilities were clearly fixed as of 1987, which was the
date of Glass’s work-related injury.
Also, the ALJ’s findings
concerning the joinder issue were clearly set forth in her
opinion, award and order, with both law and evidence supporting
those findings.
Consequently, we find no error since the Board
properly affirmed the well-reasoned decision of the ALJ.
For the foregoing reasons, the judgment of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joel D. Zakem
Frankfort, Kentucky
Robert L. Catlett, Jr.
SALES, TILLMAN & WALLBAUM,
LPPC
Louisville, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
