concurring in part and dissenting in part.
The error that the majority opinion has made in this case is akin to a “category mistake.” See Gilbert Ryle, The Concept of Mind 16 (1949). The opinion correctly concludes that the ALJ order from which this appeal is taken is not an order resolving a motion to reopen under KRS 342.125 as that provision only pertains to motions to “end, diminish, or increase compensation previously awarded.” KRS 342.125(4). The “motion for clarification/ motion to reopen” filed in this case did not request, nor did the ALJ purport to grant, such relief. The motion only requested clarification of the apportionment status of a previously entered award that had reached its conclusion by operation of law because the injured worker’s widower remarried during the pendency of the appeals.
However, KRS 342.125 does not govern all motions to reopen, just those that seek to “end, dimmish, or increase compensation previously awarded.” The motion filed in this case falls with the purview of KRS 342.325:
All 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.
Notably, no authority precludes the Board, upon motion of either party, from resolving a dispute as to the meaning and effect of a previously entered award. In fact, Hale v. Nugent Sand Co., Ky.App., 657 S.W.2d 246 (1983), overruled on other grounds by Brown Badgett, Inc. v. Calloway, Ky., 675 S.W.2d 389 (1984), held that “[t]he Board has continuing jurisdiction over the amounts payable under an Award.” Id. at 247 (citations omitted). It just cannot “end, diminish, or increase compensation previously awarded” absent compliance with the procedural requirements of the reopening statute, KRS *821342.125(1). Thus, the ALJ was not, as the majority concludes, without jurisdiction to entertain a motion to resolve a “question[s] arising under this chapter,” i.e., the interpretation of the apportionment status of a previously entered award.
The opinion and award for which clarification was requested was entered on May 2, 2000, and modified by orders granting petitions for reconsideration entered on July 24 and September 20, 2000. The need for clarification is apparent from the following chronological record:
July 15, 1993 — Cynthia K. Hall was injured in a work-related accident while employed by Peyton’s, Inc. She was forty-two years old and married to James C. Hall. She continued to work until October 29, 1993.
January 28, 1997 — The original opinion and award was entered awarding Mrs. Hall TTD benefits of $253.34 per week through March 20, 1995, payable by the employer, and PPD benefits of $126.68 (sic) payable for life for a 50% permanent partial disability, apportioned equally between the employer and the Special Fund. At the time of Mrs. Hall’s injury, KRS 342.120(6) provided, inter alia, as follows:
[T]he employer shall be liable for the payment of all income benefits until the benefits paid have reached a percentage of the full income benefits awarded by the administrative law judge which is equal to the percentage of disability which would have resulted from the latter injury or occupational disease had there been no pre-existing disability or dormant, but aroused disease or condition.
Thus, the employer’s portion of the liability (50% of life expectancy) was payable first with the remainder payable by the Special Fund. During the pendency of the appeals from this award, the employer paid Mrs. Hall $253.34 per week from October 29, 1993 — -March 25, 1995, and $126.68 per week from March 25, 1995— April 17, 1999, in aggregate, totaling $49,516.32.
June 6, 1997 — The Workers’ Compensation Board (“Board”) reversed the original award, holding that it relied upon the clearly erroneous finding of fact that Mrs. Hall could return to work, and remanded for additional findings consistent with its opinion. In a later opinion on a subsequent appeal, the Board explained that it reversed and remanded the initial award because the ALJ had applied a standard of “what might have been” rather than “what was.” Peyton’s Inc. v. Hall, Claim No. 93-27664, slip op. at 3 (Jan. 24, 2001). (Remember those words.)
December I, 1998 — The Court of Appeals affirmed.
September 23, 1999 — This Court affirmed in part, reversed in part, and remanded to the ALJ “for additional specific findings on the question of occupational disability and for the entry of an award which is consistent with those findings.” Whittaker v. Peyton’s Inc., Ky., No. 97-CA-1681-WC, slip op. at 10 (Sept. 23, 1999) (emphasis added).
October 7, 1999 — Mrs. Hall died of causes unconnected to her work-related injury. At the time of her death, no award existed in her favor (or, at best, the previous award became a nullity upon the finality of the Supreme Court opinion on October 14, 1999, per CR 76.30(2)). KRS 342.730(3) provides, inter alia, as follows:
[Wjhen an employee, who has sustained disability compensable under this chapter, and who has filed, or could have timely filed, a valid claim in his lifetime, dies from causes other than the injury before the expiration of the compensable period specified, portions of the income benefits specified and unpaid at the in*822dividual’s death, whether or not accrued or due at his death, shall be paid, under an award made before or after the death, for the period specified in this section ...:
(a) To the widow or widower ... benefits at fifty percent (50%) of the rate specified in the award.
(Emphasis added.) Under this statute, after October 29, 1999, the only person entitled to claim benefits because of Mrs. Hall’s work-related injury was her widower, Mr. Hall. Presumably, KRS 395.195 and .196 would authorize her personal representative to claim on behalf of her estate those benefits that accrued prior to her death. However, while all concerned have treated this case as if the estate were a party, no personal representative has filed a separate SF 101 or motion to intervene on behalf of Mrs. Hall’s estate.
Apparently, no one apprised the Board of Mrs. Hall’s death. Nor has any claim for benefits been filed by Mr. Hall. Nevertheless, similar to the putative estate, the parties have treated this case as if Mr. Hall had either filed a separate claim or intervened. In this respect, the parties, the ALJ, and the board have all relied on language contained in Whittaker v. Patrick, Ky., No.2000-SC-1095-WC, slip op. (Sept. 27, 2001), an unpublished opinion, which by law, may not be cited as authority. CR 76.28(4)(c) (“Opinions that are not to be published shall not be cited or used as authority in any other case in any court of this state.”).
May 2, 2000 — Pursuant to the mandate expressed in this Court’s opinion of September 23, 1999, the ALJ made additional findings of fact and rendered a new opinion awarding Mrs. Hall $253.34 per week in lifetime benefits for permanent total disability, apportioned 50% against the employer and 50% against the Special Fund. Again, the award ordered the employer’s portion of the benefits to be paid “for the number of weeks proportionate to its respective liability” before any payments were due from the Special Fund. Hall v. Peyton’s Inc., Claim No. 93-27664, slip op. at 5 (May 2, 2000).
July 21, 2000 — The ALJ granted the petitions for reconsideration filed by both the “plaintiff’ and the employer, neither of which is in this record. The order identifies the plaintiff as “James C. Hall, surviving spouse of Cynthia K. Hall” and amends the award of May 2, 2000, to read as follows:
[Wjeekly benefits in the amount of $253.34, representing the total and permanent occupational disability, are to be paid to the estate of Cynthia Hall [though the estate was never made a party] for the period from October 29, 1993 through her date of death on October 7, 1999.... The defendant is entitled [to] credit for all benefits heretofore voluntarily received. From October 8, 1999 and continuing thereafter for the remainder of Ms. Hall’s life expectancy, the defendants are to pay the sum of $126.67 to James C. Hall, surviving spouse of Cynthia Hall [though he never filed a claim or a motion to intervene] .... All benefits awarded herein are apportioned equally between the defendant-employer and the Special Fund, with the defendant employer ordered to pay all benefits initially, subject to its proportionate share. In the event that Mr. Hall remarries prior to the expiration of compensable period, benefits are to be paid pursuant to KRS 342.730(3)(e).
Hall v. Peyton’s Inc., Claim No. 93-27664, slip op. (July 24, 2000) (emphasis added).
September 20, 2000 — The ALJ also granted the Special Fund’s petition for reconsideration (which is also not in the record), reciting the same language em*823phasized in the July 24, 2000, order. The Special Fund appealed, interpreting the “subject to its proportionate share” language to mean that the Special Fund was liable for 50% of the income benefits payable from October 23, 1993 — October 7, 1999, even though those benefits accrued during the employer’s initial payment period.
January 2k, 2001 — The Board affirmed. With respect to the apportionment of the award made to the estate, the board distinguished Williamson v. Island Creek Coal Co., Ky.App., 899 S.W.2d 499 (1995), relied on our aforementioned unpublished opinion in Whittaker v. Patrick, supra, and analogized this case to Leeco, Inc. v. Crabtree, Ky., 966 S.W.2d 951 (1998), which held that the employer was entitled to the benefit of the former “tier down” provision in KRS 342.730(4) even though the “tier down” of benefits would not occur in that case until the Special Fund’s payment period. Id. at 955-56. Here, the exact amount of benefits owed to the estate was known at the time of the award and the employer had not yet paid the full amount sought to be apportioned to the Special Fund. (The employer did not seek apportionment of the benefits that accrued from October 29, 1993 — March 25, 1995, the period for which the employer had already paid the entire amount owed, but only of those benefits that accrued from March 26, 1995 — October 7, 1999, the period during which the employer had paid only less than 50% of the entire amount now deemed to be owed).
KRS 342.125 prohibits ... a reopening from affecting benefits previously paid. However, when no such benefits have been paid, apportionment ab initio is appropriate. Newberg v. Cash, Ky.App., 854 S.W.2d 791 (1993).
Peyton’s Inc. v. Hall, Claim No. 93-27664, slip op. at 7 (Jan. 24, 2001). Although the award was not a reopened award but a new award rendered after remand, the same principle applies.
October 26, 2001 — The Court of Appeals affirmed, adopting the Board’s opinion verbatim, also citing and quoting our aforementioned unpublished opinion in Whittaker v. Patrick, supra:
We conclude, therefore, that where a worker dies before receiving an award of income benefits, the benefits that accrue before his death and any benefits that continue to his survivors after his death must both be viewed by the ALJ as parts of the same award. As a result, any benefits that are payable to the worker’s estate and any remaining benefits that are payable to survivors must be treated as parts of a whole, and the sum of those benefits must be apportioned.
Whittaker v. Hall, Ky.App., No.2001-CA-000390-WC, slip op. at 9 (Oct. 26, 2001) (quoting Whittaker v. Patrick, supra). The Court of Appeals then concluded, “[T]he Board did not err in ordering the known value of the award to be apportioned equally between Peyton’s and the Special Fund.” Id. As no further appeal was taken, these holdings are now the law of this case. Pennwalt Corp. v. Beale, Ky.App., 840 S.W.2d 830, 832 (1992).
Meanwhile ...
May 27, 2001 — Mr. Hall remarried. KRS 342.730(3)(e) provides that when an employee entitled to benefits dies from causes unrelated to the work-related accident and the widow or widower subsequently remarries, benefits are payable:
To the widow or widower upon remarriage, up to two (2) years, benefits as specified in the award and proportioned under paragraphs (a) or (b) of this subsection, if the proportioned benefits remain unpaid, to be paid in a lump sum.
*824The facts that generated the “motion for clarification” were (1) the Special Fund’s continued refusal pay its apportioned share of the benefits owed to Mrs. Hall’s estate from March 26, 1995 — October 7, 1999; (2) the Special Fund’s refusal to pay its apportioned share of the survivor’s benefits owed to Mr. Hall from October 8, 1999 — May 21, 2001; and (3) the Special Fund’s refusal to pay its apportioned share of the two-year lump sum benefit payable to Mr. Hall after May 21, 2001. In each instance, the actual value of each award is now known and the amounts awarded remain unpaid.
January 28, 2002 — Again relying on our aforementioned unpublished opinion in Whittaker v. Patrick, the ALJ held that the Special Fund was liable for its apportioned share of all three awards.
June 26, 2002 — The Board affirmed, holding, “[T]he contingency of the widower’s remarriage necessitated a reopening so that the award could conform with reality.... [B]ased on Whittaker v. Patrick, the award required modification so as to conform with the reality of the widower’s remarriage.” Whittaker v. Hall, Claim No. 93-27664, slip op. at 11 (June 26, 2002).
December 28, 2002 The Court of Appeals affirmed, adopting the Board’s opinion verbatim and further holding that the law of the case doctrine precluded it from reconsidering its previous opinion of October 26, 2001. Whittaker v. Hall, Ky.App., NO.2002-CA-001586-WC, slip op. at 12 (Dec. 20, 2002).
Because KRS 342.325 vests the ALJ with jurisdiction to resolve such disputes, I would affirm the ALJ, the Board, and the Court of Appeals in all respects. Obviously, the Court of Appeals’ opinion of October 27, 2001, is the law of the case with respect to the apportionment of the award of benefits to the estate. The same reasoning that upheld that apportionment applies as well to the apportionment of the award of survivor’s benefits owed to Mr. Hall, ie., the actual value of benefits owed is now known and benefits remain unpaid. Since the actual value of two-year lump sum benefits owed to a widow or widower upon remarriage will always be known, the Special Fund’s argument that the employer must pay the entire lump sum because it falls within the employer’s payment period is specious at best. The ALJ simply conformed the previously entered award to reality. In contrast, the majority opinion conforms only to “what might have been” instead of “what is.” Peyton’s Inc. v. Hall, Claim No. 93-27664, slip op. at 3 (Jan. 24, 2001).
Accordingly, I dissent.