Opinion
NO. 2015-CA-001987-WC NO. 2016-CA-000085-WC
02-03-2017
JAMES ROSE APPELLANT/CROSS-APPELLEE v. SPEEDWAY, LLC; WORKERS' COMPENSATION BOARD; HON. WILLIAM RUDLOFF, ADMINISTRATIVE LAW JUDGE APPELLEES/CROSS-APPELLANTS
BRIEF FOR APPELLANT/CROSS APPELLEE: Alan S. Rubin Louisville, Kentucky BRIEF FOR APPELLEE/CROSS-APPELLANT, SPEEDWAY, LLC: David D. Black Vanessa Rogers Louisville, Kentucky
NOT TO BE PUBLISHED PETITION & CROSS-PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-01912 OPINION
AFFIRMING
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BEFORE: ACREE, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: James Rose petitions this Court to review a December 4, 2015, Opinion of the Workers' Compensation Board that vacated and remanded an Opinion of the Administrative Law Judge (ALJ) upon the issue of jurisdiction. Speedway, LLC, also filed a cross-petition from the same Opinion. We affirm Appeal No. 2015-CA-001987-WC and Cross-Appeal No. 2016-CA-000085-WC.
Rose was an employee of Speedway, LLC, starting in August 2013. At that time, Rose worked at Speedway's store in Ashland, Kentucky. Then, on April 25, 2014, Rose was transferred to a Speedway store in Southpoint, Ohio; subsequently, on May 16, 2014, Rose was again transferred and worked at a store in Huntington, West Virginia. On May 19, 2014, and May 22, 2014, Rose allegedly injured his right shoulder while stocking at the store in Huntington. Thereafter, Rose was transferred back to Kentucky and began working at a Speedway store in Louisville on June 20, 2014.
Rose filed a claim for workers' compensation benefits in Kentucky on October 17, 2014. Therein, he claimed to have suffered two work-related injuries to his right shoulder on May 19, 2014, and May 22, 2014. Rose asserted that Kentucky possessed jurisdiction pursuant to the extraterritorial coverage provisions of KRS (Kentucky Revised Statutes) 342.670. By Opinion and Order entered July 13, 2015, the ALJ specifically concluded that "Rose is covered for workers' compensation benefits under the extraterritorial provisions of KRS 342.670." Opinion and Order at 10. Speedway did not file a petition for rehearing but rather directly sought review with the Board. The Board vacated and remanded the ALJ's Opinion and Order. Relevant to our review, the Board concluded that the ALJ erred by failing to set forth any findings of fact as to extraterritorial coverage consistent with KRS 342.670 and by failing to specify the subsection of KRS 342.670 that confers such extraterritorial coverage. Our review follows.
To begin, as an appellate court, our review of a workers' compensation case is limited. We will only reverse the Board's opinion if it overlooked or misconstrued the law or flagrantly erred in its evaluation of the evidence. W. Baptist Hospital v . Kelly, 827 S.W.2d 685 (Ky. 1992).
APPEAL NO. 2015-CA-001987-WC
Rose contends that the Board erred by vacating the ALJ's opinion and remanding for the ALJ to reconsider whether Kentucky could properly exercise jurisdiction under the extraterritorial coverage provisions of KRS 342.670(1). Rose argues that Speedway failed to file a petition for rehearing; thus, any deficiency in the ALJ's findings of fact are deemed waived. Rose also asserts there was substantial evidence in the record to support the ALJ's determination that Kentucky possessed jurisdiction. Additionally, Rose maintains that the Board reached the issue of extraterritorial coverage sua sponte and should have only addressed issues raised by the parties.
It is well-established that a petition for reconsideration of an ALJ's opinion may be filed within fourteen days of such opinion for the purpose of correcting "errors patently appearing upon the face of the award, order, or decision." KRS 342.281. If an aggrieved party fails to file a petition for reconsideration, the ALJ's opinion "shall be conclusive and binding as to all questions of fact." KRS 342.285(1). However, issues of law do not need to be "preserved pursuant to a petition for reconsideration, but rather, may be appealed directly to the Board." Brash-Barry Gen. Contractors v. Jones, 175 S.W.3d 81, 83 (Ky. 2005).
In this case, we believe that the Board properly vacated and remanded the ALJ's opinion and cite to the Board's erudite Opinion herein:
There was no dispute Rose's contract of hire was made in Kentucky and he was injured while working at the Huntington, West Virginia store. . . . [T]he ALJ was faced with determining whether [KRS 340.670] Subsection 1(a) or 1(b) was applicable to the facts of this case. . . .
. . . .
[T]he ALJ did not engage in any discussion or analysis of the potential applicability of KRS 342.670(1)(a) or (b). The blanket statement by the ALJ that both Rose and Kayla [Rose's wife] were credible and convincing lay witnesses and their testimony rang true does not constitute a finding of fact. Similarly, the ALJ's statement Rose was hired and worked largely in Kentucky is a conclusion unsupported by a citation to any specific testimony within the record. Moreover, this statement does not resolve whether at the time of Rose's injury, his employment was principally localized in West Virginia or alternatively, not principally localized in any state.
The ALJ's failure to engage in fact-finding is compounded by his failure to cite to the specific subsection of KRS 342.670(1) he found applicable in determining Rose was "covered for workers' compensation benefits under the extraterritorial provisions of KRS 342.670." The issue is whether at the time of Rose's injury his employment was principally localized in West Virginia or was not principally localized in any state. If Rose's employment was not principally localized in any state, since he was working
under a contract of hire made in Kentucky, Kentucky has jurisdiction. However, if Rose's employment at the time of the injury was principally localized in West Virginia, West Virginia has jurisdiction. . . .Board's Opinion at 26-30.
. . . .
We are cognizant of the significance of Speedway's failure to file a petition for reconsideration. As we have said many times, pursuant to KRS 342.285, in the absence of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is substantial evidence contained in the record to support the ALJ's conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985). However, in the case sub judice, since the ALJ failed to summarize the evidence relating to extraterritorial coverage and to engage in any fact-finding, the failure to file a petition for reconsideration is not legally significant. The ALJ's failure to summarize the conflicting evidence concerning disputed key facts, weigh the evidence in making those findings of fact, and determine the legal significance of those findings, does not require this Board to review the evidence of the record and engage in de facto fact-finding in order to determine whether there is substantial evidence in the record to support the ALJ's decision that Kentucky has extraterritorial coverage of Rose's claim.
We add that the ALJ's failure to make the appropriate conclusions per KRS 342.670(1)(a) and KRS 342.670(1)(b) constitutes a question of law that was not waived by Speedway's failure to file a petition for rehearing. Specifically, the failure of the ALJ to support his determination of extraterritorial coverage with any analysis about whether Rose's employment was principally located in Kentucky or in any other state as provided by KRS 342.670(1)(a) or KRS 342.670(1)(b) renders the ALJ's opinion not in conformity with KRS Chapter 342. See Brasch-Barry Gen. Contractors v. Jones, 175 S.W.3d 81 (Ky. 2005); Sidney Coal Co., Inc. v. Kirk, 364 S.W.3d 168 (Ky. 2012). And, the Board may sua sponte review a question of law even though it is unpreserved. George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004); Twin Res., LLC v. Workman, 394 S.W.3d 417 (Ky. App. 2013). We, thus, reject Rose's contentions of error.
CROSS- APPEAL NO. 2016-CA-000085-WC
Speedway argues that the Board should have reversed the ALJ and concluded that no extraterritorial coverage existed under KRS 342.670. We disagree and believe the Board properly determined that the ALJ must reconsider the issue of extraterritorial coverage under the provisions of KRS 342.670. Considering the ALJ's opinion upon the issue of extraterritorial coverage, it was incumbent upon the Board to remand so that the ALJ can make the appropriate conclusions and analysis concerning whether Rose's employment was principally located in Kentucky or any other state per the extraterritorial coverage provisions of KRS 342.670(1)(a) or KRS 342.670(1)(b).
In sum, we are of the opinion that the Board did not overlook or misconstrue the law or flagrantly err in its evaluation of the evidence. See W. Baptist Hospital , 827 S.W.2d 685.
For the foregoing reasons, the Opinion of the Board in Appeal No. 2015-CA-001987-WC and Cross-Appeal No. 2016-CA-000085-WC is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT/CROSS
APPELLEE: Alan S. Rubin
Louisville, Kentucky BRIEF FOR APPELLEE/CROSS-
APPELLANT, SPEEDWAY, LLC: David D. Black
Vanessa Rogers
Louisville, Kentucky