 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Jones v. Brasch-Barry General Contractors11/24/2004
t the rationale of the Board. But because of a procedural error on the part of Brasch-Berry, we are forced to reverse.
KRS 342.281 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 sub mission.
Likewise, KRS 342.285 reads, " n award or order of the administrative law judge as provided in KRS 342.275, if petition for reconsideration is not filed as provided for in KRS 342.281, shall be conclusive and binding as to all questions of fact . . . ."
In Eaton Axle v. Nally, the Supreme Court held that before a party may file an appeal for errors "which are patent upon the face of the award, order or decision, [the party] must first file a Petition for Reconsideration." Although the Eaton Axle rule was abrogated by a 1994 amendment to KRS 342.281, the amendment was deleted in 1996. And this Court held in Halls Hardwood Floor Co. v. Stapleton that the General Assembly's amendment by deletion signaled its intention "to reinstate the requirement in Eaton Axle that a petition for reconsideration be filed in order to preserve an issue for appellate review." In so holding, we reasoned that " e cannot discern any logical meaning underpinning the 1996 amendments to KRS 342.281 other than a conscious decision by the General Assembly to return to the requirement that a petition for reconsideration must be filed before an issue is preserved for appellate review."
In this case, Jones correctly points out that Brasch-Berry failed to file a petition for reconsideration after the ALJ's decision was entered. Instead, Brasch-Berry appealed directly to the Board. Although Jones properly preserved the issue by addressing it in his brief before the Board, the Board, nonetheless, ruled on the merits of the case. We believe this error was fatal. The language of KRS 342.281, 342.285, and Stapleton require that a petition for reconsideration be filed with the ALJ before factual issues may be addressed by the Board. Since the issue on appeal in this case is of a completely factual nature, we hold that the claims of error made by Brasch-Berry were not properly preserved for appellate review. Therefore, this case is not properly before us; and we must conclude that the decision of the ALJ was "conclusive and binding as to all questions of fact."
For these reasons, the decision of the Board is reversed.
ALL CONCUR.
Page 1 2 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|