Riddle v. Scotty's Development, Inc.

7 S.W.3d 385, 1999 Ky. App. LEXIS 116, 1999 WL 731596
CourtCourt of Appeals of Kentucky
DecidedSeptember 17, 1999
DocketNo. 1998-CA-002204-WC
StatusPublished
Cited by4 cases

This text of 7 S.W.3d 385 (Riddle v. Scotty's Development, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riddle v. Scotty's Development, Inc., 7 S.W.3d 385, 1999 Ky. App. LEXIS 116, 1999 WL 731596 (Ky. Ct. App. 1999).

Opinion

OPINION

JOHNSON, Judge:

Mary Page, who is the guardian of three of the children of the decedent, Rebecca Riddle, petitions this Court for review of an opinion of the Workers’ Compensation Board. The Board had remanded the decision to the Chief Administrative Law Judge, who had set the weekly death benefits awarded to Page at a minimum amount, for the Chief ALJ to reduce the weekly death benefits. Since Kentucky’s workers’ compensation laws do not provide for a minimum weekly death benefit, we affirm.

While Riddle was at work on October 18, 1994, she was killed in a gruesome way when she was hit in the head with a blunt object and dropped 35 feet, head first, through a hole in the floor of the building to the concrete surface below. She died from a massive skull fracture. Riddle, who was not married, was the mother of four children whose ages ranged from 4 to 13 years old.

At the time of her death, Riddle was working for Raleigh Zackery, Jr.,1 who owned a scrap metal business and worked odd jobs. Raleigh Zackery and two of his employees were working for Scotty’s Development, Inc., a company which had bought and was restoring a large building. Raleigh Zackery was given the job of removing equipment from the top of the building. On the day before her death, Riddle called Raleigh Zackery to see if he had any work for her. He agreed to pay her $30.00 if she would come to the budding the next day and sweep. When Riddle came to work at around 9:00 a.m., Raleigh Zackery showed her where she could get a broom and where to sweep. Twenty or thirty minutes later, Riddle’s body was found on the ground floor of the building by one of Raleigh Zackery’s other employees. - At the time of the hearing in this matter, the police had not determined the identity of Riddle’s assailant.

On September 5, 1995, Page, Raleigh Zackery’s former wife, was appointed as the guardian for her three grandchildren, Jacob Riddle, Sandie Riddle and Stacey Zackery. On January 17, 1996, she filed a claim to get workers’ compensation benefits for these children.2 On August 27, 1997, the Administrative Law Judge found that on the date of her death, Riddle was an employee of Raleigh Zackery, who was uninsured; that Riddle’s death was the result of a homicide; and that her death came within the provisions of the positional risk doctrine described in Corken v. Corken Steel Products, Inc., Ky., 385 S.W.2d 949 (1964). Furthermore, the ALJ found that Scotty’s “was in the business of owning, renovating, and renting property on the site of the Firestone building,” and that “work performed by outside contractors such as Mr. Zachary [sic] ... was of a vital necessity in order to continue in the property rental business at that site.” Accordingly, the ALJ determined that under Kentucky Revised Statutes (KRS) 342.610 Scotty’s was responsible for payment of benefits to Page for Riddle’s children. The ALJ calculated , Riddle’s average weekly wage to be $8.46 and, noting that KRS 342.750 contained no provision for a minimum amount of benefits in such a [387]*387claim, awarded the children 50% of that wage, or $4.23 per week during their dependency. The ALJ also ordered that under KRS 342.720 Scotty’s was responsible for the payment of burial expenses.

Both Scotty’s and Page filed petitions for reconsideration with the ALJ. Page’s motion was denied, except the benefits were increased to $6.34 per week, an amount equal to 75% of the Riddle’s average weekly wage. The ALJ denied Scotty’s motion to be relieved of Riddle’s burial expenses, and Scotty’s appealed to the Board.3

On December 12, 1997, the Board rendered an opinion which affirmed the decision of the ALJ with respect to the issue of Scotty’s responsibility for burial expenses.4 It also held that the ALJ erred in failing to find that Raleigh Zackery was primarily liable whereby Scotty’s would be allowed to recover from its subcontractor any compensation it had to pay. Finally, the Board, sua sponte, determined that the amount of benefits to be paid on behalf of Riddle’s children should be increased to a minimum benefit:

We feel compelled to address one further issue. KRS 342.285(2)(c) authorizes the Board in its review to determine whether or not an order, decision, or award is in conformity with the provisions of Chapter 342. The ALJ in this claim indicated that a review of KRS 342.750, which provides for death benefits when death results from a work-related incident, provides for no minimum amount of benefits. While that statement is true on its face, KRS 342.740(2) does clearly indicate the legislature’s intent that there be a minimum weekly income benefit for death as well as total disability, that statute providing that wherever a change in the average weekly wage of the state is of an amount that increases or decreases the minimum weekly income benefit for total disability or death by One Dollar or more, an adjustment is to be made in that minimum. KRS 342.730(l)(a) clearly provides that there is no minimum weekly income benefit for permanent partial disability. We have no such language in KRS 342.750. The minimum benefit for a death occurring in 1994 is $83.19. As stated by Justice Palmore in Messer v. Drees, Ky., 382 S.W.2d 209 (1964) at 212, 213:
[Blearing in mind that compensation laws are fundamentally for the benefit of the injured work[er], a just claim must not fall victim to rules of order unless it is clearly necessary in order to prevent chaos.... The important question is whether the man got the relief to which the law entitled • him, based upon the truth as we are now able to ascertain it.

(Emphasis original).

While the authority of an ALJ to amend an order based upon an incorrect view of law previously adopted does not extend to a case where the award has been sustained on appeal, the award in this claim is being in part reversed and remanded with directions that the ALJ enter an award holding respondent, Raleigh Zackery, Jr., primarily liable for it. Therefore, in our opinion, the ALJ is authorized at any time within the period for which compensation is allowed to change or revoke the order on the ground of mistake of law. Stearns [388]*388Coal & Lumber Co. v. Vanover, 262 Ky. 808, 91 S.W.2d 618 (1936); and Wheatley v. Bryant Auto Service, Ky., 860 S.W.2d 767 (1993).

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Bluebook (online)
7 S.W.3d 385, 1999 Ky. App. LEXIS 116, 1999 WL 731596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riddle-v-scottys-development-inc-kyctapp-1999.