Case Information
*1 IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED NOT TO BE PUBLISHED.
PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
RENDERED: APRIL NOT TO BE PUBLISHED Supreme
Court ^rnturkv 2017-SC-000257-WC f2?ol SUNZ INSURANCE COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2016-CA-001517-WC
WORKERS COMPENSATION BOARD NO. l-WC-00465 HENRY J. DECKER; APPELLEES COMMUNICATIONS; OWEN CARROLL
LANEY, D/B/A LANEY UTILITIES;
EMPLOYEE STAFF, LLC; UNINSURED
EMPLOYERS FUND; WORKERS ’
COMPENSATION BOARD; HONORABLE
OTTO DANIEL WOLFF, ADMINISTRATIVE
LAW JUDGE AND ANDY BESHEAR,
KENTUCKY ATTORNEY GENERAL
MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, Insurance Company, appeals from Opinion Appeals affirming Workers' Compensation Opinion, affirmed Administrative Law Judge's determination failed show untimely Notice Claim Denial (Form 111). For following reasons, we affirm.
I. Background. This case has a lengthy procedural history, as Court Appeals succinctly summarized its Opinion: 1
Appellee Owen Carroll Laney, d/b/a Laney Utilities (Laney), is a business erects utility poles. Laney had service contract agreement with Appellee Employee Staff, LLC (ES), provide payroll services workers' compensation coverage assigned employees. Laney did have workers' compensation coverage independent agreement with ES. Appellant, Insurance Company (Sunz), ES's workers' compensation insurance carrier.
Appellee A & C Communications (A C) had contract Mountain Rural Telephone perform work on communication line. A 8& C subcontracted work Laney. Appellee Henry J.
Decker (Decker) injured while working Laney A & C's job. A C workers' compensation through KEMI.
On March 28, 2011, Decker filed Application Resolution Injury Claim (Form 101) naming Laney as defendant-employer Appellee Uninsured Employers' Fund (UEF) as Laney's insurance carrier. also named KEMI other defendants. ” March 2011, Commissioner Department
Workers' Claims (DWC Department) issued certification coverage, provides relevant part follows:
I, Dwight T. Lovan, Department Workers' Claims Commonwealth Kentucky, do hereby certify Owen Carroll Laney d/b/a Laney Utilities ... have workers' insurance Kentucky alleged injuiy date January 4, This insured under Employee Staff LLC. insurance carrier Employee Staff LLC Insurance Company. Ins. Co. v. Decker, No. 2016-CA-001517-WC, WL *1-4
On March 30, 2011, the Commissioner of the DWC issued notice 2 acknowledging the filing of the Form 101 addressed to Decker, his attorney, Laney, the UEF, KEMI and Insurance Company. notice provided relevant part follows:
An application adjustment of injury claim, referenced above, filed with our office March 28, 2011. Defendant employers are advised forward all correspondence their insurance carrier at time of alleged injury. Please comply this request at once, there are specific time requirements defensive responses.
Insurance carriers, self-insured employers uninsured employer please contact counsel of your choice this give written notice Department of Workers' Claims concerning name address of counsel.
A scheduling order, or other appropriate order will be issued.
(Bold-face emphasis added).
On April 20, 2011, Department issued a scheduling order assigning claim ALJ. Addressed Decker, his attorney, Laney, KEMI, UEF Sunz, scheduling order mandates [wjithin forty-five (45) days of this notice, Defendants shall file a notice of claim denial or acceptance (Form 111). If none filed all allegations of application shall deemed admitted. 3 file a Form 111 within 45 days scheduling order.
On April 2011, defense counsel A 85 C filed entry appearance. June filed join and Kentucky Revised Statutes (KRS) 342.270(2) provides relevant part:
[T]he commissioner shall issue notice all parties shall promptly assign claim administrative law judge .... Within forty-five (45) days the date issuance notice required section, or carrier shall file notice denial acceptance, setting forth specifically those material matters admitted, those are denied, basis any denial claim. KAR 25:010§ 5(2)(a), then effect, provided [t]he defendant shall Notice Claim Denial Acceptance 111... within forty-five (45) days after notice scheduling orderf] Further, KAR 25:0 10§ 5(2)(b) provided that: [i]f filed, all allegations application shall deemed admitted. ”
Sunz as parties on grounds Commissioner had certified Laney had workers' through ES and Sunz.
By Order of June 27, 2011, Administrative Law Judge (ALJ) granted A 85 C's motion join ES and Sunz and further ordered that:
[Pursuant KRS 342.270(2) and 803 KAR 25:010, § 5(2), Employee Staff, LLC and Sunz Insurance Company SHALL ENTER AN APPEARANCE AND FILE A FORM 111 within 45 days of date of this order. Employee Staff, LLC and Sunz Insurance Company SHALL TAKE NOTICE pursuant statute and regulation, they shall file notice of denial or acceptance, setting forth specifically those matters admitted, those are denied, and basis any denial claim. Failure file a timely Form 111 may result sanctions provided provisions 803 KAR 25:010, § 5.
(Upper case underline emphasis original). However, neither ES nor timely filed a Form 111 within 45 days ALJ's June 27, Order. 4
On August 19, 2011, counsel for ES filed entry appearance a Form denying claim. August 29, 2011, counsel for filed entry appearance a denying claim. also filed a motion continue hearing for extension time, reflecting counsel newly hired, having been contacted ... representation August 23, Neither nor filed leave a late 111. As noted beginning Opinion, this case now before us remand from decision as result Board's May 22, 2015, Opinion, Vacating part Remanding. The summarized sequence events succinctly but thoroughly follows: found A & liable up-the-ladder pursuant KRS 342.610(2) benefits Forty-five days from June August 2011. statute provides relevant part: contractor who subcontracts all any
part contract his her carrier shall liable payment of
awarded Henry J. Decker ( “ Decker ” ). A & C argues the ALJ erred in overruling its motion strike the untimely Forms submitted Employee Staff, LLC ( ES ) and Insurance ( ” ), and in dismissing them as parties.... For the reasons set forth below, we vacate in part and remand for additional findings fact. primary issue before the ALJ was Decker's employer. It was the position ES and Decker was never made assigned employee pursuant the service agreement. Instead, ES argued Laney was subcontractor A & C. Because Laney not carry workers' compensation outside agreement ES, Decker was uninsured employee and, therefore, A & C bore up- the-ladder liability.
On appeal, issues do concern the ALJ's determination [that] Decker is permanently totally disabled....
On appeal, A & C argues ALJ erred in overruling strike untimely Forms ES Sunz, in dismissing them parties. A & C also claims erred concluding was employee ES, [erred concluding] it [A C] bears up-the-ladder liability. For reasons set forth below, we conclude question whether Forms were properly admitted is determinative all three issues.
Here, never made determination whether good shown.... remand, must determine whether BS/Sunz established for delay specifically state basis finding. If ES failed establish cause, must deemed Decker's and, because ES insured Decker's injury, & would have liability award. If deemed employer, KRS 342.610 inapplicable.
compensation employees subcontractor unless subcontractor primarily liable payment such compensation secured payment provided chapter.
(Bold-face emphasis added). No party appealed. The case was accordingly remanded to ALJ to answer questions raised by Board. The ALJ's “ Remand Amended Opinion, Award Order, ” rendered January 29, 2016, provides relevant part follows: The Board ordered a determination be made, whether “ good cause ” existed excuse Defendants Employee Staff, LLC ( “ ES ” ) and/or Sunz Insurance Company ( “ Sunz ” ), ES' Kentucky workers' insurance carrier, from their untimely filing Form Ills. The instructed, if it determined they did have good cause, then Plaintiffs must deemed ES, who would then liable pay Plaintiffs PTD award.
Sunz did file a Form until August 29, 2011. Sunz filed untimely Form without filing motion for leave form out time nor provide ” explanation for late filing. The ALJ noted that only input suggesting why Sunz might have filed Form after expiration do so was contained its August 29, 2011, motion continue hearing extension time. That candidly indicated that counsel newly hired after having been contacted by August 23, 2011. ALJ explained Sunz's business address listed untimely same address which Commissioner's March 30, 2011, notification April 20, 2011, scheduling order had been sent; thus, ALJ stated there no reason believe had received them. determined neither ES nor provided explanation untimely 111. Consequently, held insurer, Sunz, were liable award. filed petition reconsideration, denied
Order rendered March appealed Board, affirmed Opinion rendered September follows: Permanent total disability. *8 appeal, argues Employee Staff, LLC ( ES )
was not properly joined Decker's claim in accordance with 803 KAR 25:010 § 5(2)(c). It additionally argues the issues of employer-employee relationship non-waivable defenses. also argues Decker's application resolution of did not contain allegations which can deemed admitted against it. Finally, it argues procedural due process rights were violated when ALJ denied it opportunity submit additional proof. Because we determine ALJ performed analysis previously directed by Board, he did not err in refusing allow introduction additional proof, he did not abuse his discretion, we affirm. The Board was not persuaded ALJ erred in not allowing additional proof time:
The ALJ was not directed, or permitted, conduct further proceedings, or allow introduction additional evidence. This is consistent decisions Kentucky Supreme in T.J. Maxx v. Blagg, S.W.3d (Ky. 2008); Nesco v. Haddix, S.W.3d (Ky. 2011); UEF v. Pellant, 2012) prohibit a second bite apple introduction additional evidence on remand. We therefore determine ALJ did err in refusing allow additional introduce evidence, especially in case in it been named since served notifications by Commissioner Kentucky Department Workers' Claims March April 2011. also concluded err determining had shown neglecting
timely Forms 111:
Whether is adequately proven such instances question fact determination within discretion on case by case basis, depending evidence presented.... [T]he exercise such discretion cannot disturbed appeal absent clear showing abuse. test abuse discretion whether fact-finder's decision arbitraiy, unreasonable, unfair, unsupported sound legal principles. *9 In accordance directive this Board, determined ES, insurer Sunz, no moved leave untimely denials, neither demonstrated cause failing do so. He therefore determined they responsible payment Decker's award. Because made determinations required this Board, his decision will disturbed.
(Citations omitted) (Emphasis added).
II. Standard Review. function review Court correct Board only where perceives overlooked or misconstrued controlling statutes precedent, committed error assessing evidence so flagrant gross injustice. ” W. Baptist Hosp. v. Kelly, 685, 687-88 1992).
III. Analysis. appeal, argues it never properly joined party before ALJ; workers benefits cannot awarded against non employer; excused tardy We disagree.
With respect joinder, asserts Commissioner Department Workers' Claims ( DWC ) March certification of ( notification ) April scheduling order make it party it could only have become party virtue June Order Joinder, argues ineffective because failed *10 comply process set forth in 803 KAR 25:010 § 2(3)(b). 7 Sunz points ALJ ’ s interlocutory order entered September in ALJ noted that June 2011 tendered order not indicate nor provide a space for it be indicated, how Order Joinder, and copy claim file, were be served newly joined Defendants (Sunz and ES) as required by 803 KAR 25:010 § 2(3)(b). Sunz argues insufficient joinder constitutes delay filing Form 111. remand, ALJ noted that ’ s business address listed its
untimely Form same address DWC s notification and scheduling order had been sent March and April found no reason believe had received them. further determined neither nor had provided explanation untimely thus were liable award. does dispute it received multiple notices sent it by DWC ALJ, advising it s claim directing it file within days. Rather, asserts service process notice are same thing insufficient joinder deprived procedural due process rights. KAR 25:010 § 2(3)(b) provides: Joinder shall sought soon practicable after legal grounds joinder known. Notice joinder copy shall served manner ordered administrative law
judge. ”
By own admission, waited four months after DWC ’ s scheduling order had been issued, nearly two months after ALJ ’ s Order Joinder, attempt comply.
Whether good delay [in filing 111] been demonstrated is factual determination made ALJ ’ s discretion. standard appellate review ALJ ’ s factual findings clearly erroneous standard. In short, appellate courts may not
second-guess disturb discretionaiy decisions unless those decisions amount abuse discretion.
Am. Woodmark Corp. v. Mullins, S.W.3d (Ky. App. 2016) (internal quotations citations omitted). To establish good cause, ” party seeking relief from default judgment must demonstrate that it guilty unreasonable delay neglect. Terrafirma, Inc. v. Krogdahl, S.W.2d 1964).
In Woodmark, Appeals affirmed ’ s determination defendant failed demonstrate late 314. In that case, defendant submitted adjuster s affidavit, confirmed electronic file contained DWC notification had been filed, but no record scheduling order. noted scheduling order had been mailed same address notification, that evidence scheduling order entered into carrier s electronic database and, therefore, forwarded defense counsel a timely manner, insufficient demonstrate cause. Id. The *12 Appeals agreed, noting that “ [i]nattentiveness or lack diligence carrier or defense counsel not ‘ cause ’ to excuse its delay filing Form 111. ” Id.
Similarly, Sunz did demonstrate for tardy 111. Its August Form denied also filed a to continue hearing an extension time, stating that counsel “ newly hired, having been contacted Sunz ... representation August ” Sunz did request leave to late. Under our standard reviewing decisions Board, we are unable say that “ overlooked misconstrued controlling statutes or precedent, committed error assessing evidence so flagrant as gross injustice. ” W. Baptist Hosp., 687-88. Pursuant that standard, we find no error.
Next, contends employee/employer relationship and under Kentucky Workers Compensation Act ( Act ” ) non- waivable defenses. With respect existence employer/employee relationship between ES Decker, points uncontradicted fact Laney failed designate Decker assigned employee pursuant to service agreement ES, therefore, matter law, did not employ him when accident occurred insure him. asserts assigning liability non-employer workers benefits when no employment relationship exists reversible error. In response, A&C argue effect failure timely file *13 Form 111 was to admit that injury occurred within the course and scope employment and to waive any defense that was an employee under Act.
In Gray v. Trimmaster, 173 S.W.3d 236 (Ky. 2005), addressed consequences an employer ’ s failure to file Form 111. Therein, we noted that provisions contained KRS 342.270(2) 803 KAR 25:210 § 5(2)(a) are mandatory, purpose requiring employer to timely file Form “ to facilitate prompt orderly resolution workers ’ claims. ” Id. penalty provision all allegations application deemed admitted when employer fails timely file Form effectuates purpose provisions encouraging employers to comply [.] Id.
In Gray, we held failing timely file was deemed have admitted claimant sustained injury within scope employment. Id. This result analogous default judgment civil action determines liability, with damages awarded after hearing findings fact conclusions law. Deskins v. Estep, App. 2010). Thus, effect ’ s failure timely admit injury occurred within course scope employment.
Furthermore, contrary s assertion, s decision to reopen matter additional proof issue accordance May Opinion directed remand determine whether existed late of *14 the 111 ” if ES failed to establish cause, must be deemed Decker ’ s [.] This directive is consistent with Kentucky law which prohibits second bite the apple the introduction of additional evidence on remand. See UEF v. Pellant, 396 S.W.3d 292 (Ky. 2012); Nesco v. Haddix, (Ky. 2011); T.J. Maxx v. Blagg, S.W.3d (Ky. 2008). Board reasoned if ES deemed to Decker ’ s employer, then would insured ’ s workers ’ compensation through - thereby relieving A up-the-ladder liability under KRS 342.610(2). Since the Board s Opinion appealed, the Court Appeals held the Board s directions remand became the law the case the ALJ complied, limiting the scope determination to whether existed declining take additional proof pertaining to issue.
In discussing applicability law case doctrine the Board decision, Appeals cited our ruling Thomas v. Kwik Set, 2006-SC-000445-WC, WL at *3 Apr. 2007): law case doctrine concerns extent
judicial decision made at one stage litigation is binding at subsequent stage....
[T]he law case doctrine applies Board's decisions because jurisdiction appellate. party who wishes appeal adverse decision Board must do so decision rendered. To raise issue on appeal from decision on remand would amount attempt re-litigate issue decided previously. Absent change issues evidence remand, doctrine limits questions appeal whether [ALJ] properly construed applied Board's order.
(citations omitted).
We agree with Court Appeals record was sufficiently developed for to comply Board ’ s directive to determine whether existed Sunz s failure timely and no additional proof was required necessary.
Lastly, Sunz argues default judgment should set aside because Decker voluntarily withdrew his default judgment against based on agreement between them would promptly pay him his past due indemnity medical benefits and agreed continue paying such weekly benefits until correct payment obligor was identified this litigation. As acknowledged September interlocutory order, [t]his quid pro quo agreement allowed Plaintiff receive benefits eliminated s exposure having allegations Plaintiffs admitted against them. argues ALJ, Board, Court Appeals improperly disturbed this agreement between it, ES, Decker.
As initial matter, does cite record where such an agreement between it Decker documented. & argues Decker raising this issue first appeal; indeed, neither Appeals opinion nor opinion addresses it. For specific issue heard appeal, party must preserve raising it below. Fischer v. Fischer, 2011). Further, even if issue properly preserved appeal, cannot invalidate statutory requirement even if claimant were agree it. In other words, lacks authority decide whether provisions contained KRS 342.270(2) and *16 KAR 25:210 § 5(2)(a) apply; authority lies ALJ. For these reasons, regard without merit.
IV. Conclusion. For foregoing reasons, we affirm opinion Appeals. All sitting. All concur.
COUNSEL FOR APPELLANT:
Matthew Allen
Mark Reynolds Bush
REMINGER CO., L.P.A.
COUNSEL FOR APPELLEE,
HENRY J. DECKER:
Mark D. Knight
COUNSEL FOR APPELLEE, A&C
COMMUNICATIONS:
Barry Lewis
Melissa L. Moore Lewis
LEWIS & LEWIS LAW OFFICES
COUNSEL FOR APPELLEE,
OWEN CARROLL LANEY
D/B/A LANEY UTILITIES:
Owen Carroll Laney, Pro se
COUNSEL FOR APPELLEE,
EMPLOYEE STAFF, LLC:
Not Represented Counsel
COUNSEL FOR APPELLEE,
UNINSURED EMPOYERS FUND:
James Robert Carpenter
COUNSEL FOR APPELLEE,
WORKERS COMPENSATION BOARD:
Dwight Taylor Lovan
COUNSEL FOR APPELLEE,
HONORABLE OTTO DANIEL WOLFF, ADMINISTRATIVE LAW JUDGE:
Otto Daniel Wolff, IV
COUNSEL FOR APPELLEE,
ANDY BESHEAR:
Andy Be shear App. May 2017). Notes 2-6, infra, from Appeals Opinion.