SAFETY KLEEN v. ERIC LEE MARAMAN; DONALD LEE SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: August 6, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000157-WC
SAFETY KLEEN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-01894
ERIC LEE MARAMAN; DONALD LEE
SMITH, Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, Chief Judge; BUCKINGHAM and TACKETT, Judges.
COMBS, CHIEF JUDGE.
Safety Kleen petitions for review of an
opinion of the Workers’ Compensation Board of December 24, 2003,
affirming an award of benefits to the appellee, Eric Maraman.
Safety Kleen argues that the Board erred in concluding that the
Administrative Law Judge (the ALJ) did not abuse his discretion
in denying its motion to re-open proof after the final hearing.
Finding no error, we affirm.
Maraman sustained an injury to his back on July 15,
2001.
Upon reporting the injury to his supervisor that same
day, he was warned that he should not attempt to collect
workers’ compensation benefits.
Maraman underwent surgery on
August 6, 2001, to excise a herniated disc at L4-5.
Although he
missed several months of work, he was not paid any temporary
total disability (TTD) benefits.
When he was released to work
in November 2001, he was informed that Safety Kleen no longer
had work for him.
Although Maraman ultimately found other
employment, he now earns less money than he had received while
working for Safety Kleen.
Maraman filed a claim for workers’ compensation
benefits on November 13, 2002.
On December 16, the Commissioner
of the Labor Cabinet mailed a notice of the filing to Safety
Kleen and its insurer, AIGS/INS.Co.
The notice advised as to
the “specific time requirements for defensive responses” and of
the need to provide to the Department of Workers’ Claims notice
of the name and address of counsel.
On December 23, 2002, a scheduling order was issued
and was mailed to Safety Kleen and its insurer, notifying them
that they had forty-five (45) days to file a Notice of Claim
Denial or Acceptance (Form lll) and that a Benefit Review
Conference would be conducted on April 9, 2003.
The order
warned Safety Kleen that if it failed to file a Form 111, the
-2-
allegations in Maraman’s application for benefits would be
deemed admitted.
Safety Kleen neither filed a Form 111 nor tendered any
proof prior to the expiration of time for filing proof on
February 22, 2003.
Maraman filed the report of Dr. S. Pearson
Auerbach, an independent medical examiner.
On the day before
the Benefit Review Conference, the ALJ telephoned the thirdparty administrator responsible for administering workers’
compensation benefits on behalf of Safety Kleen, advising that
counsel had never entered an appearance on behalf of Safety
Kleen.
Counsel for both Maraman and Safety Clean appeared at
the Benefit Review Conference on April 9, 2003.
Safety Kleen
did not offer any explanation for its failure to file a Form
111; it did not request additional time to file the form or to
submit proof.
A final hearing was scheduled for April 22, 2003.
On May 8, 2003, after the final hearing, Safety Kleen
moved to re-open the case and sought permission to submit
additional proof on the issue of the work-relatedness of
Maraman’s injury.
It alleged that it had recently learned that
Maraman had been treated by a chiropractor, Dr. William Eriksen,
in the days immediately preceding his alleged back injury.
As
additional grounds for the motion, Safety Kleen’s counsel stated
that he had only become aware of the case on April 8, 2003, and
-3-
that he had not had time to investigate and to take proof within
the time provided by the scheduling order.
The motion to re-open proof times and to reschedule
briefing was denied on May 20, 2003.
rendered his opinion and award.
On June 18, 2003, the ALJ
Because Safety Kleen had not
filed a Form 111, the ALJ applied the provisions of 803 KAR
25:010, Section 5(2)(b), which (as the employer had been warned)
allow the factual allegations of the complaint to be deemed
admitted.
Thus, the ALJ resolved the issue of causation in
Maraman’s favor.
With respect to the issues of extent and duration of
Maraman’s disability, the ALJ relied on the testimony of Maraman
himself and the report of Dr. Auerbach.
The ALJ found that
Maraman could not return to his former work.
Based on the
doctor’s 13% impairment rating, the ALJ awarded Maraman PPD
benefits of $155.04 per week for 425 weeks.
Because no TTD had
been paid, the ALJ also awarded TTD benefits in the amount of
$510.55 per week for the period running from July 27, 2001, to
November 12, 2001.
On July 10, 2003, Safety Kleen moved to file the
medical reports of Dr. Robert Sexton, Maraman’s surgeon, in
support of its allegation that the on-set of Maraman’s back
problems preceded his alleged work-related injury.
Although
counsel for Safety Kleen had the report of Dr. Sexton when he
-4-
deposed Maraman prior to the final hearing, he made no attempt
to offer it as an exhibit at that time.
The motion was denied,
and the pleading was ordered stricken from the record on July
25, 2003.
Safety Kleen appealed to the Board, arguing that it
had not been granted sufficient time to prepare a defense and
that the ALJ abused its discretion in denying its motion to reopen proof.
The Board addressed those contentions as follows:
Contrary to Safety Kleen’s assessment, we do
not believe the phone call from the ALJ must
be construed as knowledge on his part that
neither the employer nor the claims
administrator were [sic] aware of the
proceedings. There is no charge that the
address at which Safety Kleen was served
with Maraman’s Form 101, and the notice of
claim filing and scheduling order issued by
the Commissioner is incorrect. Rather,
every indication is to the contrary.
Moreover, although service on the employer
is sufficient, as a matter of law, we also
note that the notice of claim filing and the
scheduling order issued by the Commissioner
on December 16, 2002, and the December 23,
2002, respectively, were additionally served
on the workers’ compensation insurance
carrier for Safety Kleen at its correct
address in Louisville, Kentucky, on file
with the department. Safety Kleen’s only
allegation with respect to an alleged
deficiency in service of the Form 101, the
notice of filing and the scheduling order is
that the documents were not mailed to the
third party administrator charged with
handling its claims for workers’
compensation. Simply put, that is not the
law. It is neither the responsibility of
the employee nor the Commissioner to insure
that the Form 101 and subsequent pleadings
-5-
are placed in the hands of the individual
ultimately responsible for defending the
interests of the employer.
. . . Safety Kleen has failed to demonstrate
any good cause why it failed to file a Form
111, Notice of Claim Denial or Acceptance,
in compliance with [the December 23, 2002
scheduling] order.
. . .
The granting of extensions of proof time is
a matter within the discretion of the ALJ.
KRS 342.230 empowers the ALJ, in receiving
evidence, to make rulings upon motions
presented “as will expedite the preparation
of the case.” The administrative
regulations permit a party to move for an
extension of time no later than five days
before the deadline sought to be extended
and provide that the extension “may” be
granted upon a showing of circumstances that
prevented timely introduction. 803 KAR
25:010, § 15. The regulations further
provide that, upon motion with good cause
shown, the ALJ “may” order that additional
discovery or proof be taken between the BRC
and the date of the hearing. 803 KAR
25:010, § 13. There is no similar provision
respecting the submission of proof after the
final hearing and, indeed, it will be noted
that the regulations provide that, at the
conclusion of the hearing, the claim “shall”
be taken under submission immediately, or
briefs may be ordered. A decision “shall”
be rendered no later than 60 days after the
hearing. 803 KAR 25:010, § 18. We do not
believe the motion to reopen proof time
filed by Safety Kleen setting forth much the
same argument as it now presents for
allowing the late filing of the records of
Dr. Ericksen presents good cause, much less
compelling circumstances, upon which the ALJ
should have granted the relief requested.
-6-
In its appeal before this Court, Safety Kleen
reiterates the same arguments that it had presented to the
Board.
It contends that the ALJ abused his discretion so as to
deprive it of due process of law when he denied its motion to
re-open proof after the final hearing.
We find no error in the
Board’s resolution of this matter.
Safety Kleen correctly argues that it was entitled to
due process, a principle which includes both notice and the
right to be heard.
American Beauty Homes v. Louisville &
Jefferson County Planning & Zoning Commission, Ky., 379 S.W.2d
450 (1964).
However, the record discloses that Safety Kleen was
served with Maraman’s claim, a fact which wholly refutes the
contention that the ALJ abused his discretion.
The record in
this case reveals that Safety Kleen and its insurer were
provided notice of the claim since Maraman’s Form 101 and
subsequent orders were mailed to Safety Kleen and its insurer at
their correct addresses.
There is no alleged failure of
process, any claim of excusable neglect, or any other reason
which would justify the relief that Safety Kleen sought from the
ALJ.
See, e.g., S.R.Blanton Development., Inc. v. Investors
Realty and Management Co., Inc., Ky.App., 819 S.W.2d 727 (1991),
and Sunrise Turquoise, Inc. v. Chemical Design Co.Inc., Ky.App.,
899 S.W.2d 856 (1995).
-7-
Safety Kleen has not presented any explanation for its
failure to defend Maraman’s claim according to the terms of the
original scheduling order.
It has provided no legitimate basis
to warrant an extension of proof time after the final hearing.
There has been no explanation for its failure to move for an
extension of the proof time at the Benefit Review Conference
(when counsel entered his appearance) or at any time before the
final hearing.
Nonetheless, Safety Kleen argues that it is
entitled to be relieved of the ALJ’s award on the basis that
Maraman would suffer no prejudice by a re-opening of the proof
and a new decision.
We agree with the Board that there was no
abuse of discretion by the ALJ in refusing to accommodate Safety
Kleen’s request for additional time to present a defense.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE MARAMAN:
Allan Weiss
Louisville, Kentucky
Ched Jennings
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.
