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Appalachian Steel Construction6/2/2000
RENDERED: May 26, 2000; 10:00 a.m. TO BE PUBLISHED
Commonwealth Of Kentucky Court Of Appeals
OPINION AFFIRMING
The simple issue to be resolved in this appeal is whether the Workers' Compensation Board erred in affirming a dismissal by the Administrative Law Judge (ALJ) of an attempt to seek review of an arbitrator's award of benefits. Because we find that the document proffered by the appellant was not appropriate to initiate proceedings before the ALJ, we affirm the dismissal of the appeal.
Allen Honaker sought resolution of an injury claim seeking benefits for a back injury with resulting psychological impairment. The back injury was alleged to have occurred while unloading metal arches for his employer on September 19, 1997. Arbitrator Bonnie Kittinger found Honaker to have a permanent partial impairment of 29% due to the work-related back injury and awarded benefits accordingly. The claim for psychological impairment was denied.
Honaker's employer, the appellant here, attempted to seek further review of the arbitrator's decision by filing a document titled "Notice of Appeal" which stated: "Comes now the Petitioner, Appalachian Steel Construction, Inc., by and through counsel, and files this Notice of Appeal to the Kentucky Worker 's Compensation Board from the Opinion and Award by Hon. Bonnie Kittinger, dated March 26, 1999." In spite of the clear attempt to appeal to the Board, the matter was assigned to an administrative law judge. Honaker then moved to dismiss the appeal on the grounds that the notice was not sufficient to seek a hearing before the administrative law judge. The ALJ sustained the motion and dismissed the appeal.
The employer then filed an appeal to the Board which affirmed the dismissal of the appeal finding that the employer had not substantially complied with procedures for seeking a hearing before the ALJ.
KRS 342.275(1), as amended effective December 12, 1996, provides:
(1) Within thirty (30) days after the filing of the benefit review determination with the commissioner, any party may appeal that determination by filing a request for hearing before an administrative law judge. Proceedings before the administrative law judge shall be de novo but subject to penalties for unreasonable proceedings under KRS 342.310.
In contrast, KRS 342.285(1) and (2), as amended effective July 15, 1996, provide:
(1) An 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, but either party may in accordance with administrative regulations promulgated by the commissioner appeal to the Workers' Compensation Board for the review of the order or award.
(2) No new or additional evidence may be introduced before the board except as to the fraud or misconduct of some person engaged in the administration of this chapter and affecting the order, ruling, or award, but the board shall otherwise hear the appeal upon the record as certified by the administrative law judge and shall dispose of the appeal in summary manner. The board shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact, its review being limited to determining whether or not:
(a) The administrative law judge acted without or in excess of his powers;
(b) The order, decision, or award was procured by fraud;
(c) The order, decision, or award is not in conformity to the provisions of this chapter;
(d)The order, decision, or aw
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