BOB LAYER GENERAL EXCAVATING v. ROGER A. CHILTON; ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE;
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RENDERED:
September 19, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000149-WC
BOB LAYER GENERAL EXCAVATING
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-98-61897
v.
ROGER A. CHILTON;
ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, COMBS, AND SCHRODER, JUDGES.
BAKER, JUDGE.
Bob Layer General Excavating (“Bob Layer”)
petitions us to review an Opinion and Order of the Workers’
Compensation Board (“the Board”) entered December 18, 2002.
affirm.
We
On September 12, 1998, Roger A. Chilton (“Chilton”)
suffered a work-related injury while in the employee of Bob
Layer.
Chilton subsequently filed a workers’ compensation
claim.
The Administrative Law Judge (ALJ) ultimately awarded
Chilton permanent partial disability (PPD) benefits based upon a
seventeen percent impairment rating to the body as a whole.
Additionally, the ALJ awarded Chilton temporary total disability
(TTD) benefits from September 17, 1998, through September 20,
1998, and from October 1, 1998, through October 2, 2000.
Bob
Layer timely filed a Petition for Reconsideration which was
denied by the ALJ on August 5, 2002.
Bob Layer then filed an
appeal with the Workers’ Compensation Board on August 21, 2002.
On December 18, 2002, the Board rendered an Opinion and Order
dismissing.
The Board determined that Bob Layer’s appeal with
regard to the issue of TTD benefits was untimely filed.
This
review follows.
Bob Layer contends that the Board committed error by
concluding that its appeal was untimely filed.
Specifically,
Bob Layer contends that the Board overlooked the fact that it
timely filed a Petition for Reconsideration on August 5, 2002,
thus extending the deadline for an appeal to the Board to
September 4, 2002.
Chilton agrees with Bob Layer that the Board
erred in determining that the appeal was untimely filed.
Specifically, Chilton states in his brief that “the Board
overlooked the Appellant’s Petition for Reconsideration when it
calculated the date by which an appeal should have been filed.
In considering the Petition for Reconsideration and the ALJ’s
order overruling said Petition, the appeal to the Board was
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timely filed.”
Brief for Appellee at 3.
We believe it evident
that Bob Layer timely filed an appeal to the Board; thus, we
proceed to the merits of this case.
See Keefe v. O.K. Precision
Tool & Die Co., Ky. App., 566 S.W.2d 804 (1978).
Substantively, Bob Layer contends that the ALJ’s award
of TTD benefits between March, 1999, and January, 2000, was not
supported by substantial evidence.
Although the Board dismissed
the appeal as untimely, the Board, nevertheless, concluded that
the ALJ’s award of TTD benefits was indeed “supported by
substantial evidence.”
In the case at hand, it appears that
Chilton was originally scheduled for surgery in March, 1999, but
failed to have the surgery until January, 2000.
It is this ten-
month period between the time Chilton was first scheduled for
surgery and the date of his actual surgery that Bob Layer
contests.
Specifically, Bob Layer argues:
Layer points out that it is undisputed that
Chilton was advised by Dr. Raque no later
than December 28, 1998 that he needed to
undergo cervical surgery. It is also
undisputed that Chilton’s surgery was
originally scheduled in mid-March 1999.
Thus, Chilton had more than two months in
which to get himself mentally prepared to
have this surgery. In spite of these facts,
the ALJ determined that Chilton’s delay in
the performance of surgery was “reasonable
and justified”. Layer submits that two and
one-half months is more than ample time for
Chilton to have prepared himself mentally,
and that any finding to the contrary
constitutes an abuse of discretion.
-3-
Brief for Appellant at 4 (citations omitted).
Essentially, Bob Layer asserts that the ten-month
delay was unreasonable; hence, it should not have been required
to pay Chilton TTD benefits during such period.
Apparently,
Chilton testified that he was hesitant to undergo the surgery,
and when he attempted to reschedule the surgery, it was
discovered that he suffered from a heart problem.
In any event,
the ALJ concluded that:
Based upon the evidence it is the conclusion
of the Administrative Law Judge, that
inasmuch as Mr. Chilton was extremely
emotionally distressed over undergoing
surgery and also had some physical problems
which may have prevented the performance of
the surgery at an earlier date, any delay in
the performance of surgery was reasonable
and justified and that he is entitled to
recover for temporary total disability
benefits until he was released by Dr. Raque
on October 2, 2000.
ALJ’s Opinion and Order at 5 (emphasis added).
We think the
ALJ’s finding that Chilton was extremely emotionally distressed
about undergoing surgery was supported by Chilton’s testimony
and that this finding constitutes substantial basis upon which
to base the ALJ’s award of TTD benefits during the ten-month
period.
As such, we reject Bob Layer’s claim that the ALJ’s
award of TTD benefits between the time period of March, 1999,
and January, 2000, was not based upon substantial evidence.
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For the foregoing reasons, the Opinion and Order of
the Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
John S. Harrison
Louisville, Kentucky
BRIEF FOR APPELLEE, ROGER A.
CHILTON:
R. Mark Beal
Louisville, Kentucky
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