Wells v. Ford

714 S.W.2d 481, 1986 Ky. LEXIS 325
CourtKentucky Supreme Court
DecidedAugust 7, 1986
StatusPublished
Cited by3 cases

This text of 714 S.W.2d 481 (Wells v. Ford) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells v. Ford, 714 S.W.2d 481, 1986 Ky. LEXIS 325 (Ky. 1986).

Opinion

LEIBSON, Justice.

The claimant, William L. Ford, filed an application for workers’ compensation benefits alleging disability as the result of coal workers pneumoconiosis.

[482]*482When the case was submitted to the Workers’ Compensation Board for decision, the employer argued that the claim was barred because the employee failed to give due and timely notice as required by KRS 342.316(2)(a). The first Opinion from the Board, dated April 4, 1983, included the following “Findings of Fact”:

“3. The defendants received due and timely notice of plaintiffs claim.”
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6. Defendant employer agrues [sic.] for dismissal for failure to due and timely notice pursuant to KRS 342.316(2)(a) in its brief. However, the defendant did not set forth this affirmative defense as required by 803 KAR 25:010(3)(5).”

In this Opinion the Board awarded plaintiff benefits for 100% occupational disability.

The employer then filed a Petition for Reconsideration claiming that the Opinion contained an error of law on its face because notice need not be affirmatively pleaded. Buckles v. Kroger Grocery and Baking Co., 280 Ky. 644, 134 S.W.2d 221 (1939); Church v. Turner Elkhorn Coal Co., Ky., 492 S.W.2d 877 (1973).

The Board sustained the employer’s Petition for Reconsideration, withdrew its Opinion and Award, and entered a second Opinion and Order, dated August 8, 1983, dismissing the claim “for failure of plaintiff to give due and timely notice.” The new Opinion and Order recited:

“2. The defendants raised the issue of due and timely notice, which we decided adversely. The basis for our finding was that the defendants had waived this defense by failing to affirmately (sic.) plead lack of timely notice as a defense.
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4. The plaintiff last worked on February 18, 1980. Notice was given in August, 1981.
5. Dr. Billy R. Allen testified that he examined plaintiff in 1979 and around August of 1979, advised plaintiff that he had coal worker’s pneumconiosis [sic.] and began a treatment program for the condition. Plaintiff has been a participant in a black lung program held at the Greenville Clinic since approximately May 23, 1979.
6.We find that defendant’s petition should be sustained and this claim dismissed for failure of plaintiff to give due and timely notice.”

The employee, Ford, then appealed to the Ohio Circuit Court which reversed and remanded with directions to reinstate the original Opinion and Order.

The Circuit Court’s opinion concluded that it was “obvious” that in making the original finding the Board “did not make any independent determination as to the notice” question, but instead “relied on its mistaken belief that as the employer had not affirmatively plead the defense of insufficient statutory notice, that the notice requirement had been waived.” Nevertheless, the Circuit Court further concluded that, because it was “obvious” that the Board first considered the “merits” of the notice question “on the Petition for Reconsideration,” at that point the “Board was without authority to review the claim on the merits,” and therefore the original award should stand. The Circuit Court’s decision was based on its interpretation of Beth-Elkhorn Corp. v. Nash, Ky., 470 S.W.2d 329 (1971). The Circuit Court was of the further opinion that the Board had lost authority to change its decision on Petition for Reconsideration because it had not acted on the Petition “within ten (10) days after submission,” as provided in KRS 342.281.

The Court of Appeals affirmed the Circuit Court. In doing so, it went one step further than the Circuit Court; it considered the merits of the issue of notice as though it were an original question before the Court of Appeals, and decided that the employee’s notice was timely because it was made as soon as practicable and because there were circumstances from which it could be inferred that the employer had actual notice in timely fashion.

The principal issue for discretionary review is whether the Board acted within its [483]*483authority when, pursuant to the Petition for Reconsideration, it withdrew its original Opinion and Award, acknowledged it was error to require that the lack of notice defense must be affirmatively pled, and then considered the notice question on the merits, at which point it decided the timely notice question adversely to the claimant.

We note in passing that, as stated, one of the grounds for reversal in the Circuit Court was the Board’s failure to act on the Petition for Reconsideration within ten days after submission. On subsequent appeals the employee has not pursued the claim that the Board lost jurisdiction to change the original award after ten days. We are of the opinion that the statute cannot be construed to mandate a defea-sance of the power to decide a Petition for Reconsideration by providing a time limit of such short duration for issuing the decision. In a statute of this nature, power to decide, once given, is not divested by an unreasonably short and impractical time period for decision making. As in Webster County v. Vaughn, Ky., 365 S.W.2d 109 (1963), “the provision as to time is directory and not a limitation of authority.”

In Eaton Axle Corporation v. Nally, Ky., 688 S.W.2d 334, 338 (1985), we established the rule “that KRS 342.281 [the petition for reconsideration statute] should be utilized as a statutory counterpart of CR 52.04,” which provides that a party shall not complain on appeal “because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02 [to amend or make additional findings].” Eaton Axle was a workers’ compensation case where the issue of notice had been “energetically contested by the employer ... and yet the Board failed to make any finding of fact relating thereto.” 688 S.W.2d at 337. The purpose of our decision was to mandate a procedure whereby the Board would correct those procedural mistakes made in arriving at its decision which are evident from the face of the Opinion, such as failure to make an essential finding of fact, before appeal to the courts. Thus we eliminate the need for a remand for such corrections.

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Bluebook (online)
714 S.W.2d 481, 1986 Ky. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-ford-ky-1986.