Justia Labor & Employment Law Opinion Summaries

An administrative law judge ("ALJ") found that claimant's work for defendant's temporary employment agency was sporadic but failed to specify whether KRS 342.140(1)(d) or (1)(e) was used to calculate her average weekly wage. The Workers' Compensation Board reversed and remanded the claim and this appeal was taken from the decision by the court of appeals to affirm. The employer argued that which subsection of KRS 342.140(1) applied was a factual determination to be made by the ALJ; that the ALJ committed harmless error by failing to specify the subsection of KRS 342.140(1) used in the average weekly wage calculation; and that additional proof should not be permitted on remand. Claimant defended the court of appeals' decision but also argued in a cross-appeal that the record compelled a finding under KRS 342.140(1)(e) that her average weekly wage was $320.00. The court held that the ALJ did not commit harmless error by failing to specify the subsection relied upon and that the ALJ must analyze the evidence under KRS 342.140(1)(e) on remand. The court reversed with respect to the decision to reopen for additional proof because claimant argued from the outset that KRS 342.140(1)(e) controlled the calculation. The court also held that the record contained adequate evidence to apply the statute under the present circumstances and did not compel the finding that either party sought.

Claimant alleged a work-related cumulative trauma injury to his neck and was initially awarded workers' compensation benefits on March 28, 2002. Claimant moved to reopen the award after undergoing surgery and the administrative law judge ("ALJ") rendered another award to claimant on July 19, 2004. On March 3, 2009, claimant filed a motion to reopen. At issue was whether the ALJ properly denied as untimely the claimant's motion to reopen in order to correct a mistake of law in his workers' compensation award and denied as unauthorized his motion to reopen under CR 60.01 and CR 60.02 for the correction of a clerical error in the award. The court concluded that, although KRS 342.125(1)(c) permitted an award to be reopened based on a mistake in applying the law as it existed at the time of the award, KRS 342.125(3) limited the period for such a reopening to four years after the original award or order granting or denying benefits. The court also concluded that the Kentucky Rules of Civil Procedure applied to proceedings before an administrative agency only to the extent provided by regulation and neither Chapter 342 or 803 KAR 25:010 adopted Cr 60.01 or CR 60.02 with respect to workers' compensation proceedings. Accordingly, the court affirmed the judgment.