Opinion
NO. 2013-CA-000016-WC
05-31-2013
DONNA SEBASTIAN APPELLANT v. COMMUNITY BASED SERVICES; HON. CHRIS DAVIS, ADMINSTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Larry D. Ashlock Elizabethtown, Kentucky BRIEF FOR APPELLEE: Matthew J. Zanetti Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-08-79374
OPINION
AFFIRMING
BEFORE: DIXON, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Donna Sebastian appeals from a decision of the Workers' Compensation Board, which vacated an order of the Administrative Law Judge (ALJ) and remanded for additional findings. Sebastian argues that the ALJ exceeded his authority by decreasing her award following a petition for reconsideration and that the award entered upon remand should be reinstated. We affirm.
Sebastian is employed by Community Based Services. On September 1, 2011, the ALJ awarded benefits in the amount of $22.04 per week for 425 weeks for a work-related injury to Sebastian's left knee without the enhancement of any statutory multipliers under Kentucky Revised Statutes (KRS) 342.730. Sebastian appealed to the Board. In a decision entered on February 28, 2012, the Board affirmed in part, vacated in part, and remanded the case to the ALJ for additional findings and analysis on the applicability of the multipliers.
On remand, in an order entered on May 4, 2012, the ALJ found that the 3x multiplier applied under KRS 342.730(1)(c)1 and awarded Sebastian the sum of $70.53 per week for 425 weeks. Community Based Services filed a petition for reconsideration. In an order of reconsideration entered on June 18, 2012, the ALJ reinstated the original benefits awarded on September 1, 2011, and ordered that Sebastian was entitled to the 2x multiplier for any period when she ceased to work for equal or greater wages because of the injury. Sebastian again appealed to the Board.
In a decision entered on November 30, 2012, the Board vacated the June 18, 2012, order on reconsideration and remanded the matter to the ALJ for additional findings and analysis to comply with the directive of its previous decision entered on February 28, 2012. This appeal followed.
The sole issue on appeal is whether the ALJ exceeded his authority by decreasing Sebastian's award following a petition for reconsideration. KRS 342.218 states:
Within fourteen (14) days from the date of the award, order, or decision any party may file a petition for reconsideration of the award, order, or decision of the administrative law judge. The petition for reconsideration shall clearly set out the errors relied upon with the reasons and argument for reconsideration of the pending award, order, or decision. All other parties shall have ten (10) days thereafter to file a response to the petition. The administrative law judge shall be limited in the review to the correction of errors patently appearing upon the face of the award, order, or decision and shall overrule the petition for reconsideration or make any correction within ten (10) days after submission.In Wells v. Beth-Elkhorn Coal Corp., 708 S.W.2d 104, 106 (Ky.App. 1985), this Court stated:
Ordinarily, the petition is made in cases where a mathematical mistake or error in computation of certain time periods or dates appears. However, the statute is to be liberally construed and is not intended merely to address clerical errors but all patent errors. The Board is limited in its granting of the petition in one respect, however. The petition may not be granted if it appears that the Board has reconsidered the case on its merits and/or changed its factual findings.(internal citations omitted).
In the order on reconsideration, the ALJ stated that he misconstrued the directive of the Board, which resulted in patent error of law appearing on the face of the May 4, 2012, award. In an attempt to conform to the directive of the Board, the ALJ reinstated the original September 1, 2011, award, and also provided analysis regarding the applicability of the multipliers. On appeal, the Board found that the ALJ was within his authority to correct the patent error of law but, nevertheless, concluded that the analysis regarding the multipliers was still deficient as a matter of law.
Under Wells, supra, this Court concludes that the ALJ acted within his authority in the order of reconsideration. The ALJ corrected a patent error of law appearing on the face of the May 4, 2012, award and did not alter previous findings of fact or reconsider the case on the merits.
Accordingly, the decision of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Larry D. Ashlock
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Matthew J. Zanetti
Louisville, Kentucky