DONNIE MORRIS v. W.A. KENDALL & COMPANY, INC.; HON. W. BRUCE COWDEN, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD
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RENDERED: APRIL 8, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001707-WC
DONNIE MORRIS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-97088
W.A. KENDALL & COMPANY, INC.;
HON. W. BRUCE COWDEN, ADMINISTRATIVE
LAW JUDGE AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY AND TAYLOR, JUDGES; EMBERTON, SENIOR, JUDGE.1
EMBERTON, SENIOR JUDGE:
Donnie Morris filed a petition for
review of an opinion and order of the Workers Compensation Board
affirming the decision of the Administrative Law Judge.
The
issue raised concerns the procedural authority of the ALJ to
revise and amend an original decision rendered prior to ruling
on a motion for extension of proof time.
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Morris filed a claim alleging two separate workrelated injuries to his back incurred while performing his
duties within the scope of his employment with W.A. Kendall and
Company, Inc.
Because there were two separate injury dates, two
different insurance companies were involved resulting in Kendall
being represented by more than one carrier and more than one
attorney.
Each carrier alleged that the other was responsible
for Morris’s disability.
Prior to the final hearing, Morris settled with the
carrier that insured Kendall at the time of the first injury
leaving only the claim for the second injury to be litigated.
At the hearing, the parties discussed and agreed that the
deposition of Dr. Gregory Gleis, the independent medical
examiner, filed by the first carrier would not be considered.
However, after the case was briefed and submitted, in August
2003, the ALJ issued an order stating that Dr. Gleis’ deposition
would be considered and sua sponte permitted Kendall thirty days
additional proof time to expire on September 17, 2003.
An
evaluation was scheduled to be performed by Dr. Frank Wood but
since Dr. Wood was unable to provide the report within the
thirty days allotted, Kendall filed a motion for an extension of
the proof time.
No objection was made by Morris.
Without ruling on the extension motion, on September
30, 2003, the ALJ rendered an opinion, finding Morris to be 13%
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permanently disabled as a result of the second injury and
approving the settlement related to the first injury.
Kendall filed a timely petition for reconsideration on
the basis that the ALJ had made a patent error when it decided
the case prior to ruling on the motion for extension.
On
November 14, 2003, the ALJ ordered that its prior opinion be
withdrawn and that Kendall be given until December 1, 2003 to
complete proof and Morris be given thirty days thereafter to
submit rebuttal proof.
On January 30, 2004, relying in part on
the report of Dr. Wood, the ALJ rendered a revised opinion
finding the entire disability attributable to the first injury.
A petition for reconsideration is limited to errors
patently appearing on the face of the award, order, or decision.2
The scope of the ALJ’s authority when considering the petition
is discussed in Wells v. Beth-Elkhorn Coal Corp.:
KRS 342.281 sets out the procedure by
which an aggrieved party can petition the
Board to correct its findings if there is an
error “patently appearing” on its face.
Ordinarily, the petition is made in cases
where a mathematical mistake or error in
computation of certain time periods or dates
appears. However, the statute is to be
liberally construed and is not intended
merely to address clerical errors but all
patent errors. The Board is limited in
granting of the petition in one respect,
however. The petition may not be granted if
it appears that the Board has reconsidered
2
Kentucky Revised Statutes, 342.281.
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the case on it merits and/or changed its
factual findings.3
The Board properly noted that the limitations on the ALJ’s
determination do not permit the consideration of new evidence.4
In this case, the ALJ considered evidence submitted
after the Opinion, Award, and Order and reconsidered the merits
of the claim.
And it did so well beyond the requirement in the
statute that a decision on a petition for reconsideration be
made within ten days after its submission.5
We agree with the
Board that the ALJ’s opinion was improperly revised pursuant to
a petition for reconsideration.
The Board, however, found that the ALJ properly
revised the opinion pursuant to KRS 342.125, the re-opening
statute.
That statute provides that either upon the ALJ’s own
motion or upon the motion of any party, the ALJ may reopen and
review any award or order on one of four grounds including
mistake. The ALJ’s authority has been interpreted to include the
power to correct mistakes of fact and of law contained in an
award or order that has not been appealed.6
The purpose of the
statute is to provide a means to rectify mistakes made by the
3
708 S.W.2d 104, 106 (Ky.App. 1985)(citations omitted).
4
Garrett Mining Co. v. Nye, 122 S.W.3d 513 (Ky. 2003).
5
KRS 342.281.
6
Wheatley v. Bryant Auto Service, 860 S.W.2d 767 (Ky. 1993).
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fact finder so that any injustice to the parties can be
resolved.7
The ALJ considered the merits of the case without
ruling on Kendall motion for extension of time, an act the ALJ
admitted was an over-sight.
By the ALJ’s own admission, had the
motion been considered it would have been granted and the result
the same as it now exists.
Certainly the purpose of KRS 342.125
is served by the ALJ’s consideration of all available proof.
The Opinion and Order of the Workers Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Zaring P. Robertson
MORGAN, MADDEN, BRASHEAR &
COLLINS
Richmond, Kentucky
Ronald J. Pohl
PICKLESIMER, POHL, KISER &
AUBREY
Lexington, Kentucky
7
Id. at 768-769.
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