Office Move – Charleston, WV
Due to an expansion of the Charleston office team we have
moved to a new location in the Kanawha Boulevard Towers.
Telephone and fax numbers have not changed. The new
address is 1018 Kanawha Blvd., Suite 300, Charleston, WV
25301.
Sidney Coal Co., Inc. v. Paul Kirk
Sidney Coal Co., Inc. v. Paul Kirk, 2010-CA-000809-WC
(April 26, 2012) To be published.
SHORT SUMMARY: There were two issues, the first one was an issue of substantial evidence. The second was whether the Board exceeded its authority by reversing sua sponte and remanding with respect to the maximum weekly benefit allowed by KRS 342.730(1)(d). The Supreme Court affirmed the decision of ALJ Smith and the Board. The Board can identify and correct errors of law and is not limited to the issues identified by the parties.
LONG SUMMARY: The substantial evidence issue was over the application of the three times multiplier. This was the appeal filed by the Defendant. As you can imagine there was substantial evidence to support the ALJ’s decision.
The Supreme Court affirmed the Board’s ability to create an appellate issue. The Board did not exceed its authority under KRS 342.285(2)(c) by ordering the ALJ’s misapplication of KRS 342.730(1)(d) to be corrected. Benefits payable under KRS 342.730(1)(c)1 are limited to 100% rather than 75% of the state’s average weekly wage. The ALJ erroneously applied the latter.
Although KRS 342.730(1) (d) entitled him to receive combined weekly benefits of $631.22 rather than $473.42, he failed to raise the error by filing a petition for reconsideration or appealing. The employer argues on that basis that the Board lacked the authority to correct the error sua sponte. We disagree. The Board acted properly when it reversed the decision concerning, the limitation on benefits and remanded the claim with directions to correct the error. The ALJ committed a patent error in applying the law to the facts as found. The claimant’s failure to file a petition for reconsideration or to appeal would not have prevented the ALJ from correcting such an error sua sponte had the ALJ discovered it. Wheatley v. Bryant Auto Service, 860 S.W.2d 767 (Ky. 1993). In Whittaker v. Reeder, 30 S.W.3d 138, 143-45 (Ky. 2000) which also involved a patent misapplication of the law to the facts, we determined that the Board did not exceed its authority under KRS 342.285(2)(c) by correcting the error sua sponte although the worker failed to file a petition for reconsideration or appeal. We rejected an argument that Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985) and its progeny precluded the Board from addressing such an error in instances where the worker failed to file a petition for reconsideration. We reasoned that whether an award conformed to Chapter 342 was a question of law that a court should review, regardless of whether contested by a party, and that KRS 342.285(2)(c) allowed the Board to do so as well.
COMMENT: The Board can review and correct an order that “is not in conformity to the provisions of this chapter…” KRS 342.285. This we know, but it is the parties that are to identify the issues on appeal, not the Board. Not so says the Supreme Court when it applies to errors of law.
Consider the issues in your claim before appealing. A substantial evidence appeal is almost a guaranteed loser. In this case the Employer lost the appeal, incurred the cost of three appeals, and will now pay greater benefits.
UEF v. Jessie Rogers d/b/a Quality Interiors
UEF v. Jessie Rogers d/b/a Quality Interiors, et al., 2010-CA-001375-WC & 2010-CA-001485-WC
(April 26, 2012) To be published.
SHORT SUMMARY: The Uninsured Employers’ Fund (UEF) asserts that, the Board exceeded its authority under KRS 342.285(2)(c) by remanding the claim in order to provide the claimant with a second opportunity to meet his burden of proof. The Supreme Court agreed and reversed the Board.
LONG SUMMARY: The claimant argued from the outset that KRS 342.140(1)(e) [less than 13 weeks of employment] governed the calculation and had the burden to offer substantial evidence of the necessary facts. The statute applied but that the record lacked sufficient evidence to support a calculation under the statute. The Board exceeded its authority under KRS 342.285(2)(c) by directing the Administrative Law Judge (ALJ) to allow additional proof and then reconsider the matter.
The ALJ found the claimant to be credible in stating that Rogers hired him to work for $10.00 per hour in cash. The ALJ found that the claimant’s wage should be based on a regular 40-hour week at the rate of $10.00 per hour, for a total of $400.00 per week. The claimant’s award included medical benefits; temporary total disability benefits; and $34.67 in partial disability benefits for the following 425 weeks.
The Board agreed with the UEF’s assertion that the record contained insufficient evidence to apply KRS 342.140(1)(e) properly. Convinced that the claimant should not be denied income benefits simply because he failed to submit sufficient proof, the Board relied on KRS 342.285(2)(c) to vacate the average weekly wage finding and remand the claim to the ALJ for
additional proceedings to include the taking of additional proof.
An injured worker has the burden to prove every element of a claim for income benefits, including the applicable average weekly wage. The Board determined that the record would not support a reasonable finding that the claimant’s average weekly wage under KRS
342.140(1)(e) was $400.00. We agree.
The claimant’s Form 110 alleged 40 hours of work per week, but he admitted that roofing is not performed in rainy weather. Moreover, Jones testified in June 2009 that his own employment as a roofer was almost nonexistent during the previous winter. Such evidence precluded a reasonable finding that there would have been 40 hours’ work available to a roofer during each of the 13 weeks immediately preceding February 27, 2009. Having failed to offer evidence of all of the required elements under KRS 342.140(1)(e), the claimant failed to meet his burden of proving his average weekly wage.
Although KRS 342.285(2)(c) permits the Board to review an ALJ’s decision to determine whether it conforms to the provisions of Chapter 342, the Board exceeded its authority under the statute by directing the ALJ to order additional proof and then reconsider the issue. 803 KAR 25:010 specifies the periods within which parties may take proof. Although 803 KAR 25:010, § 15 allows the time for taking proof to be extended, it requires the filing of a motion “no later than five (5) days before the deadline sought to be extended” and “a showing of circumstances that prevent timely introduction.” This is not a case in which an injured worker lacked guidance concerning the manner in which to prove an essential element of his claim for income benefits. The claimant argued correctly from the outset that KRS 342.140(1)(e) governed the calculation because his employment was of less than 13 weeks’ duration when his injury occurred. Having failed to submit adequate proof within the time allowed and absent any evidence of circumstances that prevented him from doing so, the claimant was not entitled to a second opportunity to prove his average weekly wage.
COMMENT: A strange set of facts. Clearly the Board overstepped its authority. The Claimant expected the ALJ to side with him, and he did. The problem was that the Claimant’s testimony was conflicted and he failed to introduce any tangible evidence (such as a tax return, prior 1099, etc.) to evidence his earnings.