CONTINENTAL GENERAL TIRE v. JEFF LOOPER; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; DIVISION OF WORKERS' COMPENSATION FUNDS; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 15, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002619-WC
CONTINENTAL GENERAL TIRE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-09105
v.
JEFF LOOPER; HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
DIVISION OF WORKERS' COMPENSATION
FUNDS; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
JOHNSON, JUDGE:
Continental General Tire has petitioned for
review of an opinion of the Workers’ Compensation Board entered
on November 18, 2005, which affirmed an order by the ALJ
vacating an agreed order which had modified Jeff Looper’s
entitlement to temporary total disability (TTD) benefits.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
Having concluded that the Board did not overlook or misconstrue
controlling case law in affirming the ALJ,2 we affirm.
Looper was injured in August 1995, when the vehicle he
was driving for Continental was hit by a co-worker who was
operating a fork-lift.
His workers’ compensation claim was
settled in 1997 based on an 11% permanent, partial disability.
Thereafter, in 2003, Looper moved to reopen his claim for
payment of medical bills and TTD benefits for the time he was
off work from August 28, 2003, to May 4, 2004.
On December 20,
2004, the ALJ entered an opinion awarding Looper TTD benefits of
$415.94 per week from August 28, 2003, to May 4, 2004.
Continental did not appeal the ALJ’s award.
However, on January
13, 2005, an agreed order3 that was signed by counsel for both
parties was sent to the ALJ stating that the attorneys “had a
prior agreement that TTD benefits would extend for a total
period of five (5) months (2 1/2 months following each surgery)
and they hereby request that the [a]ward be amended to reflect
this agreement[.]”
The ALJ signed the agreed order on January
21, 2005.
On March 3, 2005, counsel for Looper filed a motion to
vacate the agreed order.
In support of the motion, counsel
stated as follows:
2
See Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
3
This order was filed during the time for taking an appeal.
-2-
[P]rior to the [ALJ]’s decision being
entered [counsel] agreed with counsel for
[Continental] that the temporary total
disability benefits would be for five
months. This stipulation was never reduced
to writing. After the [ALJ’s] decision was
entered [counsel] and counsel for
[Continental] again discussed this matter
and [counsel] agreed that the TTD should be
limited to five months pursuant to our
previous agreement. After this was done,
[counsel] was informed by [Looper] that
there was no authority for that stipulation
and no authority for the agreed order which
was signed. As a result, the agreed order
should be vacated inasmuch as [Looper] was
not in agreement.
Continental filed its response to the motion on March 10, 2005,
wherein it contended that Looper’s counsel’s motion was
“procedurally incorrect.”
Continental stated:
If this Motion is to be construed as a
Petition for Reconsideration, then it has
not been timely filed within 14 days of the
Order. If the Motion is considered a Motion
to Reopen on the basis of a mistake, then
that is not appropriate as well as a mistake
only pertains to those of law or fact.
A status conference was held on the matter and on
April 11, 2005, the ALJ vacated the agreed order.
Continental
filed a petition for reconsideration on April 25, 2005, which
was denied by the ALJ on May 23, 2005.
Continental appealed to the Board claiming that the
ALJ exceeded his authority by vacating the agreed order.
The
Board entered its opinion on November 18, 2005, wherein it
affirmed the ALJ and stated as follows:
-3-
Although the January 21, 2005[,] agreed
order was tendered and signed after the ALJ
had granted Looper a TTD award and the
agreed order substantially reduced TTD
benefits payable to Looper, the tendered
agreement recited no consideration received
by Looper in exchange for reduced TTD
benefits. The January 21, 2005[,] agreed
order recited an agreement between counsel
that was never reduced to a stipulation, but
the agreed order did not state that Looper
had agreed to a reduction in TTD benefits
and the agreed order was not signed by
Looper. Although Continental is correct in
noting that a client may be bound by actions
or omissions of his counsel, Continental’s
argument ignores the fact that the ALJ’s
informed approval was necessary to give
effect to the agreement between counsel in
Looper’s case. See KRS 342.265(1). Because
of an ALJ’s unique role in approving
settlements in workers’ compensation cases
and in view of the reopening authority
statutorily conferred on an ALJ, we conclude
the ALJ did not abuse his broad discretion
in vacating, on the grounds of mistake, his
approval of the agreed order at issue
[emphasis original].
This petition for review followed.
Continental continues to question the authority of the
ALJ to vacate the agreed order absent Looper’s timely filing of
a petition for reconsideration, notice of appeal, or motion to
reopen.
Looper counters by arguing that the agreed order was
unenforceable because it was entered more than 30 days after the
ALJ’s award was entered and that KRS 342.265(1) requires the
informed approval of the ALJ of an agreed order.
-4-
We conclude that the ALJ acted properly under KRS
342.125 which permits a reopening to amend the award to correct
In Wheatley v. Bryant Auto Service,4 our Supreme
a mistake.
Court acknowledged inconsistencies in previous decisions
regarding the authority of an ALJ to correct an admitted error
in applying the law.
The Supreme Court noted that CR 60.02
permits a trial judge to correct such a mistake in a civil
proceeding.
The Supreme Court concluded that in light of the
munificent, beneficent, and remedial purposes of the Workers’
Compensation Act it was the General Assembly’s intent that KRS
342.125 be liberally construed to permit an ALJ to reopen a
final award that had not been appealed in order to correct an
admitted mistake in applying the law as it existed at the time
of the workers’ injury.
Similarly, in Fluor Construction International, Inc.
v. Kirtley,5 counsel for the employer was not served with an
order denying the employer’s petition for reconsideration.
Upon
motion by the employer, the ALJ set aside the order and reissued
it to enable the employer to file a timely notice of appeal.
The Supreme Court relied on the analysis set forth in Kurtsinger
v. Board of Trustees of Kentucky Retirement Systems,6 in which
4
860 S.W.2d 767 (Ky. 1993).
5
103 S.W.3d 88 (Ky. 2003).
6
90 S.W.3d 454, 456 (Ky. 2002).
-5-
the Supreme Court noted that CR 60.02 is a mistake-correcting
rule which provides a trial court with broad discretion to
vacate an order on the basis of mistake, inadvertence, or
excusable neglect.
In Fluor, the Supreme Court determined that
although the ALJ did not cite the mistake provision of KRS
342.125, that the statute offered relief under the same
circumstances as would be available under CR 60.02.
In this case, the ALJ’s order vacating the agreed
order that reduced the duration of Looper’s benefits also did
not cite KRS 342.125.
However, as the Board explained, the
agreed order did not provide for any consideration to be
received by Looper in exchange for a reduction in his TTD
benefits, nor was the agreement signed by or acknowledged by
Looper, nor did the ALJ give the agreed order his informed
approval under KRS 342.265(1).
Thus, we hold that when KRS
342.125(1)(c) is viewed as being a statutory equivalent to CR
60.02, that it was proper for the ALJ to vacate the agreed order
on the ground that it was a mistake to reduce a claimant’s
benefits without consideration, without acknowledgement by the
claimant, and without the ALJ’s informed approval.
Therefore,
the ALJ did not abuse his discretion in granting the motion to
vacate the agreed order.
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
-6-
ALL CONCUR.
BRIEF FOR APPELLANT:
S. Boyd Neely, Jr.
Mayfield, Kentucky
BRIEF FOR APPELLEE, JEFF
LOOPER:
Mark Edwards
Paducah, Kentucky
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