Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: March 27, 2015
CLAIM NO. 201298825
KERRY TOYOTA PETITIONER
VS. APPEAL FROM HON. STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE
ANTHONY ADAMS
HON. STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
AND
ORDER DISMISSING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Kerry
Toyota (“Toyota”) appeals from the July 17, 2014 Opinion, Award and Order
rendered by Hon, Steven G. Bolton, Administrative Law Judge (“ALJ”), awarding
Anthony Adams (“Adams”) temporary total disability, permanent partial
disability and medical benefits. Toyota
also appeals from the ALJ’s October 30, 2014 order overruling its motion for
ruling on its petition for reconsideration.
Toyota argues the ALJ erred in awarding additional temporary total
disability benefits and abused his discretion by not ruling on its petition for
reconsideration. We dismiss the appeal
as it relates to the Opinion, Award and Order as untimely, and affirm the
October 30, 2014 order.
Following
the issuance of the July 17, 2014 Opinion, Order and Award, Toyota alleges it
submitted a petition for reconsideration on July 21, 2014. Adams responded to the petition on August 4,
2014. However, it appears Toyota’s
petition was never submitted in the record.
It is not contained in the record, nor is there any indication the
petition was received by the Department of Workers’ Claims.
On
October 24, 2014, Toyota filed a “Motion for Ruling on Petition for
Reconsideration”, noting Adams had filed a response on August 4, 2014 and it
had not received an order from the ALJ on the matter. By order dated October 30, 2014, the ALJ
overruled the motion, stating there was no petition for reconsideration filed
in the record of the case. As such, the
ALJ stated he was divested of jurisdiction pursuant to KRS 342.281. Toyota appealed.
Toyota’s
appeal as it relates to the July 17, 2014 Opinion, Award and Order is
procedurally barred because it was not timely filed. Specifically, the petition for
reconsideration was not filed within fourteen days after entry of the ALJ’s
July 17, 2014 opinion. The petition
received October 31, 2014, did not extend the deadline for filing a notice of
appeal from the opinion. Because
Toyota’s notice of appeal, filed November 4, 2014, was not filed within thirty
days from the date of entry of the ALJ’s opinion, it is untimely and this Board
does not have jurisdiction to consider Toyota’s appeal from the opinion.
Pursuant
to KRS 342.285, an award or order of the ALJ as provided in KRS 342.275 shall
be conclusive and binding as to all questions of fact if a petition for
reconsideration is not filed as provided for in KRS 342.281. KRS 342.281
provides for the filing of a petition for reconsideration “[w]ithin fourteen
(14) days from the date of the award, order, or decision” of the ALJ. Because Toyota did not file a petition for
reconsideration “as provided for” in KRS 342.281, the ALJ’s decision is
conclusive and binding as to all questions of fact.
KRS
342.285 further provides that “either party may in accordance with administrative regulations promulgated by the
commissioner appeal to the Workers’ Compensation Board for the review of the
order or award.” The Kentucky
Administrative Regulations, 803 KAR 25:010 § 21 (2)(a),
provides any party aggrieved by a decision of an ALJ may file a notice of
appeal to the Board within thirty days of the date it is filed. The statute and regulation are mandatory and
jurisdictional. Toyota’s notice of
appeal was not filed within 30 days from the date of entry of ALJ Bolton’s
opinion and, therefore, this Board does not have jurisdiction to consider his
appeal as it relates to the merits of the claim. Cf.
Rice v. McCoy, 590 S.W.2d 340, 341 (Ky. App. 1979) (KRS 342.285 is
jurisdictional; where petition for reconsideration
of “old” Board’s opinion was untimely, circuit court did not acquire
jurisdiction to consider the appeal). Therefore,
our review is limited to whether the ALJ properly denied Toyota’s Motion for
Ruling on Petition for Reconsideration.
Toyota
argues the ALJ abused his discretion in failing to rule on the petition for
reconsideration. It asserts it submitted
the petition on July 21, 2014 and Adams’ response on August 4, 2014 confirms
the claimant received the petition.
Toyota states that, following the motion for ruling, it was contacted by
the ALJ’s office and was asked to re-send an original copy of the petition,
which it did on October 29, 2014. Toyota
argues its petition should have been considered constructively filed because
Adams filed a response and would not be prejudiced by having a ruling on the
merits.
We
find no abuse of discretion on the part of the ALJ regarding his October 30,
2014 order. Indeed, the ALJ’s failure to
address the merits of the petition cannot be considered an abuse of discretion
because he had no discretion in the matter.
As a matter of law, he was required to overrule the motion. In his October 30, 2014 order, the ALJ noted
his review of the official file of the case revealed no petition for
reconsideration was contained in the record.
Our review confirms there was no record of the filing of the petition
for reconsideration until October 31, 2014, one day after the ALJ issued his
ruling. The petition filed on October
31, 2014 was apparently the copy Toyota sent on October 29, 2014 as noted in
its brief on appeal. Nothing in the
record established the petition had been received by the Department of Workers’
Claims prior to the ruling. Thus, the
ALJ correctly held there was no basis for a ruling. The ALJ has no authority to rule on a
petition for reconsideration filed more than fourteen days following entry of
the opinion. Adams’ response to Toyota’s
motion for ruling filed on August 4, 2014, eighteen days after rendition of the
ALJ’s opinion, could not operate to allow “constructive filing” or extend
Toyota’s time to file the petition for reconsideration.
Accordingly,
as to Toyota’s appeal of the July 17, 2014, Opinion, Award and Order, the
above-styled appeal is hereby DISMISSED. The October 30, 2014, order overruling
Toyota’s motion for ruling on the petition for reconsideration rendered by Hon.
Steven Bolton, Administrative Law Judge is hereby AFFIRMED.
ALVEY,
CHAIRMAN, CONCURS.
STIVERS, MEMBER, CONCURS IN RESULT ONLY.
___________________________
REBEKKAH B.
RECHTER, MEMBER
WORKERS’
COMPENSATION BOARD
COUNSEL
FOR PETITIONER:
HON STEVEN GOODRUM
771 CORPORATE DR #101
LEXINGTON, KY 40503
COUNSEL
FOR RESPONDENT:
HON C ED MASSEY
POB 86
DRY RIDGE, KY 41035
ADMINISTRATIVE
LAW JUDGE:
HON. STEVEN BOLTON
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601