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RENDERED: MARCH 20, 2015; 10:00 A.M.
TO BE
PUBLISHED
Commonwealth of Kentucky
Court of Appeals
Mamie baytos, widow of stephen baytos APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. Wc-06-01247
FAMILY DOLLAR,
HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE;
HON. THOMAS G. POLITES, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
VACATING
AND REMANDING
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BEFORE: COMBS, D. Lambert, AND VANMETER, JUDGES.
COMBS, JUDGE: Mamie Baytos appeals
the order of the Worker’s Compensation Board which reversed the order of the
Administrative Law Judge. After our review,
we vacate the order of the Board and remand.
Mamie’s husband, Stephen Baytos,
was employed by Family Dollar Stores. He
sustained a serious work-related injury (a torn thoracic aorta) on February 9,
2006. As a result of the injury,
Stephen died on December 3, 2009.
Pertinent to this case, before Stephen passed away, he entered into a
settlement with Family Dollar. He
accepted a lump-sum payment and agreed not to pursue any future claims. The settlement was not signed by Mamie, and
it did not include references to any future rights that she might have.
On August 31, 2011, Mamie
filed a motion to reopen Stephen’s claim in order to seek death benefits. On June 19, 2012, Administrative Law Judge
(ALJ) Richard Joiner ruled that Mamie’s claim was viable, but that in order to
obtain benefits, she needed to prove that Stephen’s death was caused by the
work injury. Therefore, his order was
interlocutory. On July 16, 2012, ALJ
Joiner retired, and the case was transferred to ALJ Thomas Polites. On February 3, 2014, ALJ Polites adopted the
findings of ALJ Joiner. He determined
that Stephen’s death was a result of the injury, and he awarded death benefits
to Mamie.
Family Dollar appealed to the
Worker’s Compensation Board. On March
14, 2014, Mamie filed a motion to dismiss the appeal. On June 2, 2014, the Board entered an order
reversing the ALJ. It did not rule on
the motion to dismiss, but finding that Mamie’s claims were barred by the
settlement agreement executed between Stephen and Family Dollar, it denied her
benefits. Mamie now appeals.
When an appeal is based upon disputes
of factual issues, the Board must uphold the ALJ’s ruling if it was supported
by substantial evidence in the record. Transportation Cabinet v. Poe,
69 S.W.3d 60, 62 (Ky. 2001). Similarly, when reviewing decisions of the Board, this Court may
only reverse if the Board “has overlooked or construed controlling statutes or
precedent, or committed an error in assessing the evidence so flagrant as to
cause gross injustice.” Western Baptist Hosp. v.
Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). This appeal, however, has presented a
question of law. Therefore, our review
is de novo. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009).
Mamie first argues that the
Board committed error by not dismissing Family Dollar’s appeal. She claims that the notice was defective
because it was taken from an interlocutory order rather than from a final
order.
Kentucky Administrative Rule
803 KAR 25:010 § 21 governs the content of a notice of appeal from an ALJ to
the Board. It provides that the notice
must:
1.
Denote
the appealing party as the petitioner;
2.
Denote
all parties against whom the appeal is taken as respondents;
3.
Name the
administrative law judge who rendered the award, order, or decision appealed
from as a respondent;
4.
If
appropriate pursuant to KRS 342.120 or 342.1242, name the director of the
Division of Workers’ Compensation Funds as a respondent; and
5.
Include
the claim number.
803
KAR 25:010 § 21(2)(c).
Mamie contends that Family
Dollar did not follow the provision to identify the correct judge because it
named ALJ Joiner and not ALJ Polites as authoring the subject order. There is no merit to this argument. The notice of appeal began as follows:
[Family Dollar]
requests a review by the Workers’ Compensation Board of the opinion and award
rendered herein by Honorable Richard Joiner, Administrative Law Judge, on June
19, 2012. The order on the petition for
reconsideration was entered on July 10, 2012.
This appeal was originally filed in August 2012 and was dismissed given
the interlocutory nature of the underlying proceedings.
On February 4,
2014, Hon. Tom Polites, ALJ rendered a decision in this claim which now makes
the 2012 decision by Judge Joiner final and appealable.
While
the notice of appeal includes reference to ALJ Joiner, it explains that the
order by ALJ Polites is the final order.
We cannot conclude that the notice resulted in a defect as it recited
the sequence of orders entered by the ALJs involved.
The substantive issue which
Mamie presents is whether the Board erred by determining that Stephen’s
agreement with Family Dollar prohibits her from seeking death benefits. Kentucky Revised Statute[s] (KRS) 342.750
allows surviving spouses to receive death benefits if the injured employee dies
within four years of sustaining the injury.
It makes no mention of prior agreements reached between the employer and
the injured employee.
There is no dispute that the
settlement between Family Dollar and Stephen precluded him from asserting any future claims. The Board relied on the settlement when
ruling that Mamie’s claim is derivative of Stephen’s claim, holding that her
claim was barred. The Board reasoned
that KRS 342.750 (the statute which governs death benefits) and KRS 342.730
(the statute under which Stephen and Family Dollar reached a settlement) are
both direct income benefits. Thus, Mamie’s entitlement to any benefits was not
addressed or implicated.
The predecessor to our
Supreme Court provided guidance for this scenario in Brashear v. Old Straight Creek Coal Corp., 236 Ky. 83, 32 S.W.2d
717 (Ky. 1930). The employer coal
company compensated Brashear for an injury covering a period of time until he
signed a receipt indicating that he had received the final payment. Id. The Court held that Brashear’s “final
settlement [did] not prevent an award to the widow . . . .” 236 Ky. at 85, 32 S.W.2d. at 718. The Court went on
to explain that:
[H]er motion to
reopen the case should properly be treated as a motion to reopen so far as the
application which she had filed was concerned.
The compensation due her, if any, is quite a different thing from the
compensation paid to her husband.
Id.
The clear holding of Brashear circumvents any need for us to seek
guidance by statutory construction.
Nothing in the current statutes contradicts Brashear, and its circumstances are strikingly similar to the ones
in the case before us.
Additionally, other sources
are harmonious with Brashear indicating
the clear and separate right of the surviving spouse to seek compensation.
The dependent’s right to death benefits is an independent
right derived from statute, not from the rights of the
decedent. Accordingly, death benefits are not affected by compromises or releases executed by decedent….
Arthur Larson, Larson’s Worker’s Compensation, Desk Edition § 98 Scope,
98-1 (2007)(cited by Matter of Fossum, 619 P.2d 233, 238 (Or. 1980);
State Indus. Ins. Sys. v. Lodge, 822 P.2d 664, 666 (Nev. 1991)). The
Supreme Court of New Jersey has stated that “the vast majority” of
jurisdictions consider that “‘the dependents’ rights are not derived from the
employee’s rights, but instead, are separate and independent rights of the
dependent.’” Kibble v. Weeks Dredging & Const. Co., 735 A.2d 1142,
1147 (N.J. 1999) (quoting Brown v. General Aniline & Film Corp., 316
A.2d 478 (N.J. 1974)). See also Judd v. Rinelli, 268 P.2d 671, 672 (Idaho
1954); Owens Corning Fiberglas Corp. v. Indus. Comm’n, 555 N.E.2d 1233,
1238-39 (Ill. App. 1990); Rouse v. WCC, 342 S.E.2d 229, 231 (W.V. 1986);
Hampton’s Claimants v. Director of Div. of Labor, 500 P.2d 1186, 1188
(Colo. 1972); Buchanan v. Kerr-McGee Corp., 908 P.2d 242, 245 (N.M.
1995).
The Board did not provide
authority for its holding that Mamie’s claim was barred by Stephen’s settlement
with Family Dollar. Therefore, we must
follow the precedent provided by Brashear
and reinforced by other sources.
We vacate the order of the
Board and remand for further proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT: Carl E. Grayson Erlanger, Kentucky |
BRIEF FOR APPELLEE FAMILY DOLLAR: Melanie B. Gabbard Lexington, Kentucky AMICUS CURIAE BRIEF FOR KENTUCKY WORKERS’ ASSOCIATION (KIWA) Jeffery A. Roberts Murray, Kentucky |
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