COMBS, Judge.
Appellant, Sunz Insurance Company, appeals from an Opinion of the Workers' Compensation Board affirming the Administrative Law Judge's determination on remand that Sunz failed to show good cause for untimely filing its Notice of Claim Denial (Form 111). We affirm.
This case has a lengthy procedural history, and we refer to the record only as necessary to resolve the issues before us involving numerous Appellees.
Appellee Owen Carroll Laney, d/b/a Laney Utilities (Laney), is a business which erects utility poles. Laney had a service contract agreement with Appellee Employee Staff, LLC (ES), to provide payroll services and workers' compensation coverage for its "assigned employees." Laney did not have workers' compensation coverage independent of its agreement with ES. The Appellant, Sunz Insurance Company (Sunz), is ES's workers' compensation insurance carrier.
Appellee A&C Communications (A&C) had a contract with Mountain Rural Telephone to perform work on a communication line. A&C subcontracted that work to Laney. Appellee Henry J. Decker (Decker) was injured while working for Laney on A&C's job. A&C has workers' compensation coverage through KEMI.
On March 28, 2011, Decker filed an Application for Resolution of Injury Claim (Form 101) naming Laney as the defendant-employer and Appellee Uninsured Employers' Fund (UEF) as Laney's "insurance carrier." Decker also named A & C and KEMI as "other defendants."
On March 28, 2011, the Commissioner of the Department of Workers' Claims (DWC or the Department) issued a certification of coverage, which provides in relevant part as follows:
(bold-face emphasis original)
On March 30, 2011, the Commissioner of the DWC issued notice
(Bold-face emphasis added).
On April 20, 2011, the Department issued a scheduling order assigning the claim to an ALJ. Addressed to Decker, his attorney, Laney, KEMI, the UEF and
On April 28, 2011, defense counsel for A&C filed an entry of appearance. On June 2, 2011, A&C filed a motion to join ES and Sunz as parties on grounds that the Commissioner had certified that Laney had workers' compensation coverage through ES and Sunz.
By Order of June 27, 2011, the Administrative Law Judge (ALJ) granted A&C's motion to join ES and Sunz and further ordered that:
(Upper case and underline emphasis original). However, neither ES nor Sunz timely filed a Form 111 within 45 days of the ALJ's June 27, 2011 Order.
On August 19, 2011, counsel for ES filed an entry of appearance and a Form 111 denying the claim. On August 29, 2011, counsel for Sunz filed an entry of appearance and a Form 111 denying the claim. Sunz also filed a motion to continue the hearing and for extension of time, reflecting that its counsel was "newly hired, having been contacted by Sunz . . . for representation on August 23, 2011. Neither ES nor Sunz filed a motion for leave to file a late Form 111.
As noted at the beginning of this Opinion, this case is now before us on remand from a decision of the ALJ as a result of the Board's May 22, 2015, Opinion, Vacating in part and Remanding. The Board summarized the sequence of events succinctly but thoroughly as follows:
(Bold-face emphasis added). No party appealed. The case was accordingly remanded to the ALJ to answer the questions raised by the Board.
The ALJ's "Remand Amended Opinion, Award and Order," rendered January 29, 2016, provides in relevant part as follows:
The ALJ noted that the "only input suggesting why Sunz might have filed the Form 111 after expiration of the time to do so" was contained in its August 29, 2011, motion to continue hearing and for extension of time. That motion candidly indicated that counsel was newly hired after having been contacted by Sunz on August 23, 2011. The ALJ explained that Sunz's business address listed on its untimely Form 111 was the same address to which the Commissioner's March 30, 2011, notification and the April 20, 2011, scheduling order had been sent; thus, the ALJ stated that there "is no reason to believe" Sunz had not received them. The ALJ determined that neither ES nor Sunz provided a good cause explanation for the untimely filing of the Form 111. Consequently, the ALJ held that ES and its insurer, Sunz, were liable for the award.
Sunz filed a petition for reconsideration, which the ALJ denied by Order rendered March 31, 2016. Sunz appealed to the Board, which affirmed by Opinion rendered September 16, 2016, as follows:
The Board was not persuaded that the ALJ erred in not allowing Sunz additional proof time:
The Board also concluded that the ALJ did not err in determining that Sunz and ES had not shown good cause for neglecting to timely file Forms 111:
(Citations omitted). (Emphasis added).
Sunz appeals. Sunz's first argues that there was good cause to excuse the delayed filing of the Forms 111; i.e., that neither Sunz nor ES was provided copies of the claim file as required by 803 KAR 25:010§2(3)
In the case before us, the ALJ explained that there was no reason to believe that Sunz had not received the Commissioner's March 30, 2011 notification or the April 20, 2011 scheduling order and that Sunz "did nothing" in response. By Order of June 27, 2011, the ALJ directed Sunz to file a Form 111 within 45 days; however, Sunz did not file the Form 111 until August 29, 2011 — well beyond the prescribed 45 days. When Sunz finally did file the form, it did so without filing a motion for leave. The only "input" to explain the late filing was contained in Sunz's August 29, 2011, motion to continue the hearing/motion for extension of time — and that was the statement by Sunz that it had just contacted counsel on August 23, 2011. Thus, by its own admission, Sunz waited
American Woodmark Corp. v. Mullins, 484 S.W.3d 307, 314 (Ky. App. 2016) (internal quotation marks and citations omitted). In Woodmark, the defendant submitted the adjuster's affidavit, which confirmed that the electronic file contained the Department's notification that a Form 101 had been filed — but that there was no record of the scheduling order. The ALJ noted that the scheduling order had been mailed to the same address as the notification. The ALJ determined that the "evidence that the scheduling order was not entered into the carrier's electronic database and, therefore, not forwarded to defense counsel in a timely manner, was insufficient to demonstrate good cause." Id. at 314. This Court agreed. "Inattentiveness or lack of diligence by the carrier or defense counsel is not `good cause' to excuse its delay in filing the Form 111." Id.
As our Supreme Court explained in Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992), the function of review in this Court "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." Pursuant to that standard, we find no error.
Next, Sunz contends that the employee/employer relationship and coverage under Kentucky Workers' Compensation Act are "non-waivable defenses." We disagree. Gray v. Trimmaster, 173 S.W.3d 236 (Ky. 2005) (Effect of employer's failure to timely file Form 111 was to admit that injury occurred within course and scope of employment.); Huntsman v. Manning, 2014-SC-000569-WC, 2015 WL 5042157, at *5 (Ky. June 11, 2015) (Defendant waived defenses that claimant was not an employee under the Act by failing to timely file Form 111.).
Sunz also contends that the Form 101 did not contain allegations against it or ES; therefore, it contends that none can be deemed admitted against Sunz by virtue of the untimely filed Form 111. However, Decker and Sunz were joined as parties by the ALJ's June 27, 2011 Order. Furthermore, by Order of September 1, 2011, the ALJ granted Decker's motion and amended the Form 101 to include ES "as a Defendant Employer in the alternative."
In its May 22, 2015, Opinion remanding, the Board directed the ALJ to "determine whether or not good cause existed for the late filing of the Form 111." The Board further instructed that if "ES failed to establish good cause, it must be deemed Decker's employer. . . ." The Board's reasoning was premised on the fact that if ES were deemed to be Decker's employer, Decker would be insured by ES's workers compensation coverage through Sunz — thus relieving A&C of up-the-ladder liability under KRS 342.610(2). The Board announced what then became the law of the case. Our Supreme Court explained in Thomas v. Kwik Set, 2006-SC-000445-WC, 2007 WL 1159959, at *3-4 (Ky. Apr. 19, 2007):
(Citations omitted). We agree with the Board that "the ALJ made the determinations required by this Board [on remand], [and] his decision will not be disturbed."
Sunz contends that entry of what amounts to default judgment against it is void because the ALJ "did not have particular case jurisdiction over ES and Sunz" and did not have the authority to decide the case as he did. Again, we disagree.
Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 429 (Ky. App. 2008) (citations and internal quotation marks omitted). In Basin Energy Co. v. Howard, 447 S.W.3d 179, 187 (Ky. App. 2014), this Court explained: "if a court or administrative body acts within its general jurisdiction, but outside its particular-case jurisdiction, its acts are voidable, but not void . . . because the parties can waive particular-case jurisdictional defects."
The ALJ joined ES and Sunz as parties upon A&C's Motion based upon the Commissioner's certification that Laney was insured under ES and that ES's insurance carrier was Sunz. KRS 342.325 provides that "[a]ll questions arising under this chapter, if not settled by agreement of the parties interested therein, with the approval of the administrative law judge, shall be determined by the administrative law judge except as otherwise provided in this chapter." Clearly, the ALJ had both subject matter and particular case jurisdiction in the case before us; Sunz waived any defenses that it might have had by failing to timely file the Form 111.
Sunz also argues that it was denied procedural due process by not being permitted to present additional proof on remand pertaining to the issue of good cause. Citing Woodmark, 484 S.W.3d at 307, Sunz contends that this Court confirmed that it is appropriate when "on remand, proof was reopened on the issue of whether [the employer] had good cause for the delay in filing the Form 101." While proof may have been reopened in that case, it was not at issue on appeal. Central to that issue is the discretion of the ALJ.
We agree with the Board that the ALJ did not err in refusing to provide Sunz additional time to submit proof on remand under the facts of this case. "It has long been accepted that an ALJ has broad discretion to control the taking and presentation of proof in a workers' compensation proceeding." New Directions Housing Authority v. Walker, 149 S.W.3d 354, 358 (Ky. 2004).
Finally, Sunz contends that it should be allowed to present proof on the extent and duration of Decker's disability in the event that we affirm the Board. Because this issue was not presented as a matter on appeal to the Board, it is not properly before us. Kem Coal Co. v. Baker, 918 S.W.2d 236, 238 (Ky. App. 1996). Nevertheless, we note that the ALJ's determination that Decker is permanently and totally disabled was not challenged on appeal.
We affirm the September 16, 2016, Opinion of the Workers' Compensation Board.
ALL CONCUR.
