DR. JAMES JENSEN v. KENTUCKY BOARD OF MEDICAL LICENSURE
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002209-MR
DR. JAMES JENSEN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 99-CI-007061
KENTUCKY BOARD OF MEDICAL LICENSURE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND TACKETT, JUDGES.
MILLER, JUDGE:
Dr. James Jensen brings this appeal from a
September 7, 2001 order of the Jefferson Circuit Court.
We
affirm.
On May 22, 1997, the Kentucky Board of Medical
Licensure (Board), appellee herein, issued an emergency order
suspending Jensen's medical license.
An emergency hearing was
scheduled, and the Board issued an administrative complaint.
Kentucky Revised Statutes (KRS) 311.592.
The Board's complaint
enumerated myriad instances of egregious conduct on the part of
Jensen in his professional capacity.
Prior to the emergency
hearing, the Board issued an order directing Jensen to undergo a
psychiatric/neuropsychological evaluation.
Before undergoing
said exam, Jensen agreed to voluntarily surrender his medical
license for a period of three years in return for a termination
of the Board's action against him.
canceled.
The emergency hearing was
A proposed Agreed Order of Surrender was drafted and
forwarded by the Board to Jensen.
Jensen neither completed nor
signed the order.
There is some confusion, but it seems that, though
represented by counsel, Jensen filed a pro se pleading with the
Board.
Therein Jensen again offered to voluntarily surrender his
medical license for three years.
set.
Jensen failed to appear.
A pre-hearing conference was
unable to contact him.
scheduled.
His counsel reported they were
Another pre-hearing conference was
At the conference, the Board filed a Motion for
Default Order.
A copy of this motion was sent to Jensen at his
last three known addresses.1
By order dated August 11, 1997, the
hearing officer directed Jensen to respond by September 2, 1997
to the Motion for Default Order.
The order was mailed to his
last two known addresses, and faxed to a telephone number in
Hawaii where Jensen had relocated.
Jensen did not file a
response.
On September 17, 1997, the hearing officer issued a
Recommended Order.
KRS 13B.110.
Therein, the hearing officer
recommended the Board find Jensen in default, find the
1
Jensen's counsel were still unable to contact him. They
withdrew by order of the hearing officer dated September 15,
1997.
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allegations contained in the Board's complaint true, and revoke
Jensen's license to practice medicine.
The order also included
statements of Jensen's exception and appeal rights.
On October
16, 1997, the Board accepted the hearing officer's recommended
order, and issued a final order.
No statement of appeal rights
appeared in the final order, however, the recommended order
containing a statement was incorporated by reference.
Attempts
to serve these orders upon Jensen at his last known address in
Hawaii were unsuccessful.
On July 29, 1999, Jensen filed a petition seeking
judicial review pursuant to Kentucky Revised Statutes (KRS)
311.593 in Franklin Circuit Court.
By agreement, the action was
transferred to Jefferson Circuit Court by order dated November 9,
1999.2
On September 7, 2001, the Jefferson Circuit Court
dismissed Jensen's petition for failure to timely file pursuant
to KRS 13B.140(1).
This appeal followed.
Jensen maintains the circuit court erred in dismissing
his action as untimely.
Jensen first complains that the Board's
final order lacked a statement of his appeal rights as required
by KRS 13B.120(3), which reads:
The final order in an administrative hearing
shall be in writing and stated in the record.
If the final order differs from the
recommended order, it shall include separate
statements of findings of fact and
conclusions of law. The final order shall
also include the effective date of the order
2
Jensen petitioned for reinstatement of his medical license
through several faxed messages sent to the Board between
September 1 and September 24, 1999. The Board denied Jensen's
petitions, concluding he did not meet the statutory requirements
for reinstatement of his medical license.
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and a statement advising parties fully of
available appeal rights. (Emphasis added).
Because the final order failed to contain an
independent statement of his appeal rights, Jensen contends the
circuit court's dismissal of his petition as untimely was an
exercise of arbitrary power in violation of Section 2 of our
Constitution.
However, the circuit court reasoned that the
mandate of KRS 13B.120(3) was satisfied when the final order
adopted the Recommended Order of the hearing officer, which order
did, in fact, contain a statement of appeal rights.
We are aware that when the legislature statutorily
prescribes the method and time for appeal from a decision of an
administrative agency the requirements are mandatory and must be
met in order for the court to obtain jurisdiction.
See Frisby v.
Board of Education of Boyle County, Ky. App., 707 S.W.2d 359
(1986).
Moreover, a court is required to give credence to the
statutory language used by the legislature and give the language
its ordinary meaning.
See Court of Justice, ex rel,
Administrative Office of the Courts v. Oney, Ky. App., 34 S.W.3d
814 (2001).
In this regard, we note that KRS 13B.120(3) plainly
sets out three requirements for final orders in administrative
hearings; (1) the final order shall be in writing and stated in
the record, (2) separate statements of findings of fact and
conclusions of law shall be included if they differ from the
recommended order, and (3) the effective date of the order along
with a statement advising the parties of their appeal rights
shall be included.
The third requirement specifically states
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that the final order “shall” include a statement of the parties'
appeal rights.
While we interpret this requirement as mandatory,
we think the method of compliance is open to some discretion.
The question before us is whether compliance with the
statute may be had by a final order which incorporates the appeal
rights set forth in the hearing officer's recommendation.
compelled to agree with the circuit court.
We are
We are of the opinion
that in the absence of a showing that one is misled by the
incorporation process, compliance with the requirements of KRS
13B.120(3) may be had by incorporating the hearing officer's
notice of appeal rights.
Jensen also contends that he was not lawfully apprised
of the proceedings which resulted in a default judgment.
13B.050(h).
We think this contention is without merit.
KRS
The
record is clear that the problem faced by Jensen is not the
failure of the Board to notify him of the proceedings, but his
own refusal to make himself available for notification.
We know
of nothing the Board could have done other than what it did, nor
have we been apprised of any reasonable alternative.
It seems to
us that Jensen's position is that so long as he does not accept
notice of proceedings, the Board is powerless to act.
We cannot
accept this position.
Having reviewed the record herein, we are of the
opinion the circuit court was without error in dismissing the
petition.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
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ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas P. Goodness
Lexington, Kentucky
C. Lloyd Vest, II
Louisville, Kentucky
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