Osborne v. Pepsi-Cola, PEPSI-COLA

• Decision Date: 26 September 1991
• Docket Number: No. 90-SC-806-WC,PEPSI-COLA,90-SC-806-WC
• Citation: 816 S.W.2d 643
• Parties: Emanual OSBORNE, Appellant, v.; Larry Beale, Director of Special Fund; Donna H. Terry, Administrative Law Judge; and The Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 643

816 S.W.2d 643

Emanual OSBORNE, Appellant, v. PEPSI-COLA; Larry Beale, Director of Special Fund; Donna H. Terry, Administrative Law Judge; and The Workers' Compensation Board, Appellees.

No. 90-SC-806-WC.

Supreme Court of Kentucky.

Sept. 26, 1991.

Melbourne Mills, Jr. Law Office, Versailles, for appellant.

Thomas G. Mooney, Mackenzie & Peden, P.S.C., Louisville, for appellee Pepsi-Cola.

Denis S. Kline, Labor Cabinet, Louisville, Cathy Utley Costelle, Louisville, for special fund.

CHARLES E. MOORE, Special Justice.

Emanuel Osborne filed an application for workers' compensation benefits alleging he sustained an injury arising from his employment with Pepsi-Cola. At the prehearing conference the parties stipulated plaintiff sustained a work-related injury.

Nonetheless, the evidence adduced by Mr. Osborne addressed in part whether his injury resulted from his employment. Also, his brief to the administrative law judge stated, "The defendant-employer has denied all aspects of Mr. Osborne's claim, feeling there was no work relation...."

The administrative law judge issued an opinion and award without referring to the parties' stipulation. The judge found no work-related injury and dismissed the claim.

Mr. Osborne filed a petition for reconsideration pursuant to KRS 342.281 and argued the evidence required a finding that his injury was work-related. In the petition he never mentioned the parties' stipulation. The administrative law judge denied the petition for reconsideration.

Mr. Osborne appealed to the Workers' Compensation Board and, for the first time, contended the stipulation bound the administrative law judge to find his injury was work-related. Also, he continued arguing the evidence required finding his injury arose out of his employment.

The Workers' Compensation Board concluded Mr. Osborne waived his right to rely on the stipulation and refused to enforce it. The Board further ruled the evidence did not compel the finding of a work-related injury.

Following Mr. Osborne's unsuccessful appeal to the Court of Appeals, we granted discretionary review to consider whether the Workers' Compensation Board erred by not applying the stipulation and whether the evidence compelled finding the injury work-related. First, we will consider the stipulation issue.

Initially we note KRS 342.270 encourages stipulation of facts not in dispute to aid in the disposition of workers' compensation claims in a summary and efficient fashion. The regulations of the Workers' Compensation Board infuse stipulations with strength. One may obtain relief from a stipulation only by motion and showing good cause. 803 KAR 25:011.

Neither party moved to set aside the stipulation. Thus, the parties and the administrative law judge were bound by the stipulation. Wagoner v. Hopkins, Ky., 531 S.W.2d 511 (1975). The question remains whether the Workers' Compensation Board properly refused to correct the error of the administrative law judge in overlooking the stipulation.

Under the new statutory scheme the administrative law judge is the finder of fact. KRS 342.275 and KRS 342.285. The Workers' Compensation Board is an administrative appellate body. KRS 342.285(1). KRS 342.285(2) limits the Board's scope of review.

Although not unique, only a few jurisdictions employ limited administrative appellate review in workers' compensation actions. 3 Larson's Workmen's Compensation Law, Secs. 80.12(c)(1), 80.12(c)(5) (1989, 1990 Cum.Supp.). Where utilized, the judiciary sanctions strict adherence to the legislatively defined roles of the fact finder (administrative law judge) and the appellate body (Workers' Compensation Board). Nord v. City of Cook, 360 N.W.2d 337 (Minn.1985). We discern no impediment to the legislature's discretion to select such a structure and an obligation on our part to give it the effect intended by the legislature.

KRS 342.285(2) confines the Workers' Compensation Board to determining whether:

(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 award is clearly erroneous on the basis of the reliable, probative and material evidence contained in the whole record; or

(e) The order, decision or award is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Our jurisprudential system embodies 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. We diversely apply the principle to composition of the jury, Rankin v. Blue Grass Boys Ranch, Ky., 469 S.W.2d 767 (1971), evidence, Blakeman v. Joyce, Ky., 511 S.W.2d 112 (1974), instructions, Mapother and Mapother v. Douglas, Ky., 750 S.W.2d 430 (1988), etc. The doctrine extends to administrative law. 2 Am.Jur.2d, Administrative Law, Sec. 724 (1962, 1991 Cum.Supp.); Clemons v. Kentucky Alcoholic Beverage Control Board, Ky., 443 S.W.2d 226 (1969).

However, in informal proceedings such as workers' compensation actions, administrative agencies should hesitantly rely on any principle to excuse correctable error. On the other hand, a party neither by action nor inaction should induce the administrative trier of fact to commit error and then be heard to complain of it on appeal. After all, workers' compensation actions are adversarial proceedings where customarily parties hire lawyers to protect their interests, as opposed to relying on a paternalistically conducted proceeding.

Professor Larson frames the opposing policy consideration succinctly, "the theme pervading much of the adjectival law of workmen's compensation is the necessity of striking a balance between relaxation of rules to prevent injustice and retention of rules to ensure orderly decision making and protection of fundamental rights." 3 Larson, Workmen's Compensation Law, Sec. 77A.83 (1989, 1990 Cum.Supp.).

In this case, after entering into the stipulation, Mr. Osborne: (1) adduced evidence on the issue forming the basis of the stipulation; (2) listed work-relatedness as an issue in his brief; and (3) did not mention the stipulation in his petition for reconsideration. When all these occurrences converge in a case, a party cannot be heard to complain that the administrative law judge failed to enforce the stipulation on administrative appeal. Under these circumstances, he cannot challenge the administrative law judge's action on the basis that it exceeded his or her power, is not in conformity with the statutes or was arbitrary or capricious.

Mr. Osborne primarily bases his claim that the Workers' Compensation Board should have redeemed him from his somnolence on Eaton Axle v. Nally, Ky., 688 S.W.2d 334 (1985). He claims Eaton Axle teaches errors need merely be raised at the administrative level to preserve judicial reviewability. That analysis overlooks the ramifications of the revision of our workers' compensation system.

When we decided Eaton Axle, the Workers' Compensation Board decided claims. Then, we held patent errors must be addressed to the Workers' Compensation Board via a petition for reconsideration. Now, under appropriate circumstances, a petition for...