Kelly Porter v. Axelon, Inc. ( 2023 )

RENDERED: FEBRUARY 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2022-CA-1259-WC
KELLY PORTER APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-85945
AXELON, INC.; HONORABLE JONATHAN
R. WEATHERBY, ADMINISTRATIVE LAW
JUDGE; DR. JOHN JACQUEMIN/ORTHOCINCY;
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: ECKERLE, KAREM, AND MCNEILL, JUDGES.
ECKERLE, JUDGE: Kelly Porter (Porter), pro se, petitions for review of an order
of the Workers’ Compensation Board (Board) dismissing his appeal for failure to
file a timely notice of appeal. We affirm.
On June 5, 2018, Porter filed his initial claim for a low back injury
sustained during his employment with Axelon in Erlanger, Kentucky. On April 21,
2021, the Administrative Law Judge (ALJ) rendered his initial decision that Porter
had sustained a work-related low back injury, awarding temporary total disability
(TTD), permanent partial disability (PPD), and medical benefits.
Following a rigorous period of appellate practice, the issue of the
application of the multiplier provided in Kentucky Revised Statute (KRS)
342.730(1)(c)(2) remained. In his remand opinion and award of January 6, 2022,
the ALJ determined that the 2x multiplier applied to Porter’s PPD award. Axelon
once again petitioned for reconsideration, arguing that the multiplier did not apply
since Porter never returned to work at the same or higher average weekly wage
after the injury date. After the ALJ’s denial of reconsideration, Axelon appealed to
the Board, which vacated his decision and remanded the issue for a recalculation of
Porter’s post-injury wages. Finally, on August 16, 2022, the ALJ rendered his
amended remand opinion and award, finding that the multiplier did not apply since
Porter did not return to work at the same or greater average weekly wage. No
petition for reconsideration was filed.
In his brief, Porter claims that he was advised by a Board staff
member to send his notice of appeal of the August 16, 2022, amended remand
opinion and award to the ALJ, not the Board. He indicates that he emailed it to the
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ALJ on September 13, 2022. Porter did not make a copy of that email or an
affidavit regarding its content or transmission part of the record.
On the instruction of another staffer, Porter sent to the Board a motion
for an extension of time to file an appeal by United Parcel Service (UPS) on
September 16, 2022. It was received on September 19, 2022. A motion for an
extension of time in which to file a brief was received by the Board on October 3,
2022.
Upon receipt of Porter’s motion for an extension of time to file an
appeal, Axelon filed an objection and motion to strike on the grounds that the
Board was without jurisdiction to consider Porter’s motion due to his failure to
comply with the applicable Kentucky Administrative Regulations (KAR). Axelon
asked that the pleading be stricken and that any “appeal” be dismissed. By opinion
and order entered October 3, 2022, Porter’s attempted appeal was dismissed as
untimely.
As noted in Pike County Board of Education v. Mills, 260 S.W.3d
366, 368 (Ky. App. 2008), “our standard of review of a decision of the Workers’
Compensation Board ‘is to correct the Board only where the . . . Court perceives
the Board has overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to cause gross
injustice.’ Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).’”
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Having reviewed the record and the Board’s opinion, this Court cannot find that
the law was improperly applied or that the evidence was incorrectly considered.
KRS 342.285(1) provides that, if no petition for reconsideration is
filed, “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.” However, those regulations set forth very specific
requirements that must be met to perfect the appeal.
803 KAR 25:010 § 22 states in pertinent part:
(1)(b) Parties shall insert the language “Appeals
Branch” or “Workers’ Compensation Board” on
the outside of an envelope containing documents
filed in an appeal to the board.
(2) Time and format of notice of appeal.
(a) Within thirty (30) days of the date a final
award, order, or decision rendered by an
administrative law judge pursuant to KRS
342.275(2) is filed, any party aggrieved by that
award, order, or decision may file a notice of
appeal to the Workers’ Compensation Board.
...
(c) The notice of appeal shall:
1. Denote the appealing party as the petitioner;
2. Denote all parties against whom the appeal
is taken as respondents;
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3. Name the administrative law judge who
rendered the award, order, or decision
appealed from as a respondent;
...
5. Include the claim number; and
6. State the date of the final award, order, or
decision appealed.
While Porter’s motion for extension of time complies with Section 22
as to these requisites in many respects, it still must have been timely filed.
803 KAR 25:010 § 1(7)(b)2. states that:
(7) “Date of filing” means the date that:
(b) A pleading, motion, order, opinion, or other
document is received by the commissioner at the
Department of Workers’ Claims in Frankfort,
Kentucky, except:
2. Documents transmitted by United States
registered (not certified) or express mail, or
by other recognized mail carriers shall be
deemed filed on the date the transmitting
agency receives the document from the
sender as noted by the transmitting agency
on the outside of the container used for
transmitting, within the time allowed for
filing.
Porter’s motion, having been mailed on September 16, 2022, was
untimely from its inception, as evidenced by the envelope1 in which it arrived. In
1
Found at Record 716.
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Rice v. McCoy, 590 S.W.2d 340, 342 (Ky. App. 1979), the Court recognized that
the timely filing of an appeal is both mandatory and jurisdictional. Jolly v. Lion
Apparel, Inc., 621 S.W.3d 411 (Ky. 2021). Indeed, the Supreme Court has deemed
failure to file a timely notice of appeal “fatal” based upon facts such as those
presented herein, where the notice of appeal was sent by mail to the Board,
arriving 31 days after the filing of the ALJ’s decision. Workers’ Compensation
Board v. Siler, 840 S.W.2d 812, 813 (Ky. 1992).
Accordingly, we affirm the Workers’ Compensation Board’s opinion and
order dismissing.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kelly Porter, pro se Cate A. Poole
Covington, Kentucky Lexington, Kentucky
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