No. 00-99297 (2002). Bluegrass Towing v. Clark.

• Case Date: October 09, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-99297 (2002). Bluegrass Towing v. Clark BLUEGRASS TOWING PETITIONER vs. CURTIS CLARK and HON. DONALD SMITH, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: October 9, 2002CLAIM NO. 00-99297APPEAL FROM HON. DONALD SMITH, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.GARDNER, Member. Bluegrass Towing appeals from an opinion and award rendered by Hon. Donald Smith, Administrative Law Judge ("ALJ"), awarding Curtis Clark ("Clark") total occupational disability benefits. The only issue on appeal concerns Bluegrass Towing's failure to file a Form 111, Notice of Acceptance or Denial, and the ALJ's determination that Clark's average weekly wage as listed in his Form 101 was deemed admitted. On appeal, Bluegrass argues its failure to file a Form 111 should have no effect in this claim regarding Clark's average weekly wage. The facts necessary to determine the issue on appeal are relatively limited. Clark filed an Application for Resolution of Injury Claim against Bluegrass on November 4, 1997, for a work-related back injury occurring on March 3, 1997. That claim ultimately resulted in an award based on a 10% impairment rating. Clark filed a motion to reopen Claim No. 97-02359 on May 26, 2000. He filed the instant claim with a new Application for Resolution of Injury Claim against Bluegrass on May 30, 2000, alleging a subsequent injury to his back and leg on December 10, 1999. In the new application, Clark listed his average week wage at date of injury as $638. On July 3, 2000, the usual notice was sent to all parties that the defendant had forty-five days to file a claim denial or acceptance (Form 111) stating "if none is filed, all allegations of the application shall be deemed admitted." A benefit review conference (BRC) was scheduled for October 9, 2000. Bluegrass has never filed a Form 111. The claim was placed in abeyance while Clark underwent medical treatment and a BRC was held on March 20, 2002. The BRC order indicates that among the contested issues were "AWW (1999)" and "Form 111 (1999)." It also lists Clark's average weekly wage for 1997 as $540.85. On March 21, 2002, Bluegrass filed its AWW-1, wage certification, in the record. According to the parties' briefs, Bluegrass sought live testimony from one of its employees...