it is a “fundamental concept that one waives error at the trial level by failing to properly and timely object or otherwise bring the error to the attention of the trier of fact.”
How later courts described this case
- it is a “fundamental concept that one waives error at the trial level by failing to properly and timely object or otherwise bring the error to the attention of the trier of fact.”
- error in workers’ compensation decision which has not been preserved before the Board may not be the subject of judicial review
Written by the judges who cited it.
The opinion
WINTERSHEIMER, Justice,
dissenting.
I must respectfully dissent from the Majority Opinion because the undisputed error in this award may be corrected regardless of whether the 1994 amendment to KRS 342.281 is remedial or applies in this case. Wheatley v. Bryant Auto Service, Ky., 860 S.W.2d 767 (1993), determined that the mistake provision of KRS 342.125 authorized an Administrative Law Judge to reopen a worker’s compensation award in order to correct an error of law, even though no petition for reconsideration had been filed and the award had not been appealed. In that case, the ALJ had misapplied the law and erroneously awarded total disability benefits for a period of only 425 weeks when, at the time of the injury, the law provided for a lifetime award.
In this case, it is undisputed that the findings of fact by the ALJ entitled Smith to receive benefits equal to 80 percent of those for total occupational disability. KRS 342.730(l)(a). However, the ALJ erroneously computed the award as one for an 80 percent permanent, partial occupational disability under KRS 342.730(l)(b).
The Special Fund did not defend the computation by the ALJ to the Board but argued only that Eaton Axle Corporation v. Nally, Ky., 688 S.W.2d 334 (1985), precluded the claimant’s appeal of the issue. Although it can be argued that the particular error in this award was a mixed question of fact and law, nonetheless, it is clear that the wrong subsection of KRS 342.730 was applied. Under these circumstances, I believe that a reopening in order to correct this award is permitted. Furthermore, because this conclusion would render moot the question of whether the 1994 amendment of KRS 342.281 was remedial, I would refrain from addressing that issue.
Therefore, I would reverse the decision of the Court of Appeals and remand this case to the ALJ for a reopening of the award and the entry of a corrected award pursuant to KRS 342.730(l)(a).
SPAIN and STUMBO, JJ. join in this dissent.