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Workers’
Compensation Board
OPINION ENTERED: March 1,
2019
CLAIM
NO. 201601673
JAMES
GILBERT and
JOHNNIE
TURNER PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE
LAW JUDGE
BLUEGRASS
MATERIALS CO., LLC and
HON.
CHRIS DAVIS,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION AND ORDER
DISMISSING
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BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. James
Gilbert (“Gilbert”) seeks review of the Opinion and Order rendered September
27, 2018 by Hon. Chris Davis, Administrative Law Judge (“ALJ”). The ALJ dismissed Gilbert’s claim against
Bluegrass Materials Co., LLC (“Bluegrass”). Gilbert filed a petition for reconsideration,
which the ALJ denied in an order issued October 15, 2018.
Gilbert filed a Notice of Appeal on
February 1, 2019. Bluegrass filed a
motion to dismiss the appeal as untimely. In his response, Gilbert acknowledges he only
had thirty days to file an appeal from the ALJ’s October 15, 2018 order denying
his petition for reconsideration.
Gilbert’s response specifically states as follows:
Comes now
the Petitioners, JAMES GILBERT and JOHNNIE L. TURNER, by and through Counsel,
and herein states that the Respondent/Employer is correct that the Petitioner
only had 30 days from the date of the Judge’s order on Petition for
Reconsideration to file an appeal.
However, the
undersigned does not recall ever receiving a hard copy of this order in the
mail, and his office inadvertently did not check LMS until very recently to see
that an order had been filed. It was not
until the undersigned’s office was reviewing LMS last week that the Order was
seen.
We
initially note KRS 342.285(1) states as follows:
An award or
order of the administrative law judge as provided in KRS 342.275, if petition
for reconsideration is not filed as provided for in KRS 342.281, shall be
conclusive and binding as to all questions of fact, but either party may in
accordance with administrative regulations promulgated by the commissioner
appeal to the Workers’ Compensation Board for review of the order or award.
803
KAR 25:010 section 22 (2) provides:
(2) Time and format of notice of appeal.
(a)
Within thirty (30) days of the date a final award, order, or decision rendered
by an administrative law judge pursuant to KRS 342.275(2) is filed, any party
aggrieved by that award, order, or decision may file a notice of appeal to the
Workers’ Compensation Board.
(b) As used in this section, a final
award, order or decision shall be determined in accordance with Civil Rule
54.02(1) and (2).
Gilbert
did not file a Notice of Appeal within thirty days as required. Because Gilbert did not timely file a Notice
of Appeal within thirty days from the date of the order denying his petition
for reconsideration, this Board does not have jurisdiction to consider the
appeal as it relates to the merits of the claim. In Rice v. McCoy, 590 S.W.2d 340, 341,
342 (Ky. App. 1979), the Court of Appeals held as follows:
KRS 342.281 is mandatory; a showing of good cause offers no
relief from its provisions. In Johnson
v. Eastern Coal corporation, Ky., 401 S.W.2d 230, 231 (1966), the court
held that “strict compliance with this section is mandatory to obtain a full
Board review.”
Appellee’s petition for reconsideration was untimely filed and
the Board properly overruled it. We note
that a dismissal would have been the more appropriate ruling by the Board; however,
overruling the petition accomplished the same result.
Since the petition for reconsideration was untimely taken, any
right of appeal to the circuit court was lost.
KRS 342.285 is jurisdiction. “The
language of the statute is plain as to the time win which to appeal. The time within which a petition for review
must be filed is mandatory, and if it is not complied with the circuit court
acquires no jurisdiction.” [citation omitted]
The
ALJ rendered the decision on the merits of Gilbert’s claim on September 27, 2018, and denied the petition for
reconsideration in his October 15, 2018 order.
Since this Board does not have jurisdiction to consider this appeal, it
must be dismissed. See also Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918
(Ky. App. 1998).
We
acknowledge Gilbert’s assertion that a hard copy of the ALJ’s order on
reconsideration was not sent to him.
This is addressed in 803 KAR 25:011 (3) (effective October 7,
2016). That section specifically
provides that the filing of all pleadings, motions or orders through LMS became
mandatory on July 1, 2017, with the exception of those
documents submitted by, or to be served upon self-represented litigants. Therefore, there was no requirement for the
mailing of a hard copy of the order denying the petition for
reconsideration. Failure to timely
monitor filings in LMS does not expand jurisdictional filing deadlines. With the Board being otherwise sufficiently
advised;
IT IS HEREBY ORDERED AND ADJUDGED Respondent’s
motion to dismiss this appeal is GRANTED.
Accordingly,
the appeal filed by Petitioner, Gilbert on February 1, 2019 is hereby DISMISSED.
ALL CONCUR.
_____________________________________
MICHAEL
W. ALVEY, CHAIRMAN
WORKERS’
COMPENSATION BOARD
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
JOHNNIE L TURNER
PO
BOX 351
HARLAN,
KY 40831
COUNSEL FOR RESPONDENT: LMS
HON
JEFFREY D DAMRON
PO
BOX 351
PIKEVILLE,
KY 41502
ADMINISTRATIVE LAW JUDGE: LMS
HON
CHRIS DAVIS
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
