LESTER BROYLES V. ROBERT L . WHITTAKER, DIRECTOR OF SPECIAL FUND; J . LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE ; AND THE WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCEDURE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : JANUARY 23, 2003
NOT TO BE PUAISHED
LESTER BROYLES
V.
o'
APPEAL FROM COURT OF APPEAL
2001-CA-0251-WC
WORKERS' COMPENSATION BOARD NOS. 94-39601 & 93-48577
ROBERT L. WHITTAKER, DIRECTOR OF
SPECIAL FUND; J . LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE ; AND
`THE WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
REVERSING
In Wheatley v. Bryant Auto Service , Ky., 860 S.W.2d 767 (1993), the Court
determined that an Administrative Law Judge (ALJ) was authorized to reopen a final
award sua ponte in order to correct a legal error therein . Reversing a decision of the
Workers' Compensation Board (Board), the Court of Appeals determined that the
December 12, 1996, version of KRS 342.125(3) prevented an ALJ from correcting an
error in the final award that was entered at the reopening of this claim until two years
after the award's entry . Having concluded, however, that KRS 342.125(3) did not
impose a two-year waiting period on a previously reopened award, we reverse .
On May 9, 1996, the claimant was awarded a permanent, partial disability for an
injury that had occurred on September 14, 1993. On July 16, 1998, he moved to
reopen, alleging a change of disability . He and the employer reached a settlement, but
the matter proceeded to a decision concerning the Special Fund's liability . In an award
that was entered on November 18, 1998, an AU determined that the claimant had
become totally disabled but erroneously calculated the Special Fund's share of the
increased income benefit at the 1993 maximum rate for partial, rather than total,
disability. Nonetheless, although the claimant was awarded $133 .11 per week rather
than the $177 .48 to which he was entitled, he did not petition for reconsideration or
appeal . On June 5, 2000, having discovered the error, he filed a motion to re-docket
the claim for the purpose of correcting the award . In an order that was entered on July
10, 2000, the AU noted that although the time had long since passed for a petition for
reconsideration or request for de novo review, there was no response or objection from
the Special Fund . Relying on Wheatley v. Bryant Auto Service , supra, the AU granted
the motion, to the extent that the claim was re-docketed, and then entered an order
correcting the error in the reopened award from the outset .
After its petition for reconsideration was overruled, the Special Fund appealed . It
maintained that the error could not be corrected under the principles of Wheatlevv
.
Bryant, supra , or Whittaker v. Reeder, Ky., 30 S.W.3d 138 (2000), because the
claimant did not file a timely petition for reconsideration or appeal . Another argument
was that KRS 342.125(3) prohibited reopening within two years of the date of the
award. In the alternative, the Special Fund maintained that the award could only be
corrected prospectively, from the date of the claimant's second motion .
Although the Board reversed with regard to the alternative argument, it affirmed
with regard to the others . Again, the Special Fund appealed . Reversing the Board, the
v
Court of Appeals concluded that although the grounds for reopening under Wheatlev .
B ant, sue, remained, such a reopening was subject to the two-year waiting period of
KRS 342 .125(3) absent one of the listed exceptions . The Court determined, therefore,
that the ALJ erred by reopening the claim within two years after the award in order to
correct the erroneous benefit calculation because none of the exceptions applied .
Thus, the claimant appeals.
From December 12, 1996, until July 14, 2000, KRS 342.125 provided, in
pertinent part, as follows :
(1) Upon motion by any party or upon an arbitrator's or administrative law
judge's own motion, an arbitrator or administrative law judge may reopen
and review any award or order on any of the following grounds :
(a) Fraud ;
(b) Newly-discovered evidence which could not have been discovered
with the exercise of due diligence;
(c) Mistake ; and
(d) Change of disability . . . .
(3) Except for reopening solely for determination of the compensability of
medical expenses, fraud, or conforming the award as set forth in
KRS 342 .730(1)(c)(2) ., or for reducing a permanent total disability award
when an employee returns to work, no claim shall be reopened more than
four (4) years following the date of the original award or order granting or
denying benefits, or within two (2) years of such award or order, and no
party may file a motion to reopen within two (2) years of any previous
motion to reopen by the same party.'
In WheatIev.v Bryant ,
T .
sue, we pointed out that KRS 342 .125(1) authorized the
reopening of a claim upon an ALJ's own motion . Relying on authority concerning the
meaning of the term "mistake" in the context of KRS 342.125 and authority concerning
'Effective July 14, 2000, KRS 342.125(3) was amended to eliminate the
prohibition on reopening within two years of an original award or order and to reduce
the mandatory period between a party's successive motions to reopen to one year .
the correction of a legal error in a final award, we determined that an AU may amend a
final award sua sponte in order to correct an error in applying the law as it existed when
the award was made . Id . at 769.
The Special Fund now concedes that the grounds for reopening that were set
forth in Wheatley v. Bryant, supra , remain valid . It notes, however, that although the
claimant's injury occurred in 1993, the award at reopening that is at issue was rendered
after December 12, 1996 . Furthermore, it points out that the two-year waiting periods
and four-year limitation that are contained in KRS 342.125(3) govern the reopening of
claims in which an award was entered on or after December 12, 1996 . Meade v. Reedy
Coal Co. , Ky., 13 S.W.3d 619, 622 (2000) . The Special Fund asserts, therefore, that
the claimant was not permitted to file a subsequent motion to reopen until two years
after the erroneous award was entered, and that the AU erred by correcting the
reopened award within two years of its entry.
With three exceptions, none of which presently applies, KRS 342.125(3) limits
the time during which a workers' compensation award may be reopened by imposing
both a four-year period of limitations and two two-year waiting periods . Together with
KRS 342 .125(8), it limits the period for reopening to the latter of: 1 .) four years after
December 12, 1996, or 2.) four years following the date of the original award or order
granting or denying benefits . Furthermore, it provides that no claim may be reopened
"within two (2) years of such award or order," i .e. , within two years of the original award
or order granting or denying benefits .
Finally, it provides that no party may file a
motion to reopen within two years of a previous motion to reopen by the same party.
It is apparent that KRS 342 .125(3) prohibited the claimant from filing a second
motion to reopen, on the ground of "mistake," within two years of his previous motion to
reopen . The fact remains, however, that he did not attempt to file such a motion .
Instead, he brought the error in his reopened award to the ALJ's attention via a motion
to re-docket the claim, a pleading to which the Special Fund did not object . Thus, the
question becomes whether, having been informed of the error, the ALJ was authorized
to reopen and correct the award that was entered at reopening on his own motion,
before a period of two years had elapsed . In that regard, we note that although KRS
342 .125(3) prohibits reopening within two years of an "original" award, an award of
increased benefits at reopening is not an "original" award but an amendment to an
existing award . For that reason, the total disability award that was entered at
reopening was not an "original" award and was not subject to the two-year prohibition
against reopening. Thus, having been informed of the error via the claimant's
unopposed motion to re-docket the claim, the ALJ acted within his authority when he
reopened the amended award on his own motion and corrected the amount of the
claimant's income benefit.
The decision of the Court of Appeals is hereby reversed, and the decision of the
Board is reinstated .
Lambert, C .J., and Graves, Johnstone, Keller, Stumbo and Wintersheimer, JJ .,
concur. Cooper, J., dissents without opinion .
21t is noteworthy that if an award or order that is entered at reopening were
viewed as being an original award or order, it would extend the period of limitations for
reopening by an additional four years each time the claim was reopened . See KRS
342.125(8).
COUNSEL FOR APPELLANT :
McKinnley Morgan
Morgan, Bailey & Collins
P .O. Box 1780
Hyden, KY 41749
COUNSEL FOR APPELLEE,
SPECIAL FUND:
David R. Allen
David W. Barr
Labor Cabinet - Special Fund
1047 U .S. Hwy. 127 South
Suite 4
Frankfort, KY 40601-9979
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