CHED JENNINGS, ATTORNEY v. KENTUCKY MIRROR AND PLATE GLASS; CHRISTOPHER DERRICK BRIAN; HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002773-WC
CHED JENNINGS, ATTORNEY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-63785
v.
KENTUCKY MIRROR AND PLATE GLASS;
CHRISTOPHER DERRICK BRIAN; HON. DONNA
H. TERRY, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Ched Jennings, the attorney for Christopher
Derrick Brian, has petitioned this Court for review of a Workers’
Compensation Board opinion which affirmed the Administrative Law
Judge’s opinion and award on his motion for an attorney’s fee
pursuant to KRS1 342.320(2)(c)2.
1
Having concluded that the Board
Kentucky Revised Statutes.
2
At the time Jennings moved for an attorney’s fee, KRS
342.320(2)(c) provided:
Upon an appeal by an employer or carrier from
(continued...)
has not overlooked or misconstrued controlling statutes or
precedent by affirming the ALJ, we affirm.
On August 20, 1998, Brian was injured while working for
Kentucky Mirror & Plate Glass.
On August 25, 1999, the ALJ
entered an opinion which awarded Brian temporary total disability
benefits in the amount of $465.35 per week from September 4,
1998, through December 20, 1998.
affirmed the award by the ALJ.
On February 18, 2000, the Board
A petition for review was filed
with this Court and the Board was affirmed on April 13, 2001.
The case was not appealed to the Supreme Court of Kentucky.
On May 21, 2001, Jennings filed a motion requesting the
award of an attorney’s fee pursuant to KRS 342.320(2)(c).
July 19, 2001, the ALJ denied the motion stating:
As the parties are aware, the relevant
statutory provision was declared
unconstitutional in City of Louisville v.
Slack, Ky., 39 S[.]W[.][3]d 809 (2001).
While counsel for plaintiff does make an
interesting argument regarding the
applicability of Slack to the pending motion,
the Administrative Law Judge finds no support
in the Supreme Court’s decision for allowance
of an attorney fee under a statutory
provision which has been declared
2
(...continued)
a written determination of an arbitrator or
an award or order of an administrative law
judge, if the employer or carrier does not
prevail upon appeal, the administrative law
judge shall fix an attorney’s fee to be paid
by the employer or carrier for the employee’s
attorney upon consideration of the extent,
quality, and complexity of the services
rendered not to exceed five thousand dollars
($5,000) per level of appeal. This
attorney’s fee shall be in addition to any
fee awarded under paragraphs (a) and (b) of
this subsection.
-2-
On
unconstitutional.
On December 5, 2001, the Board affirmed the ALJ’s ruling.
This
petition for review followed.
Jennings argues that Slack should not apply to the case
sub judice because his work on Brian’s case had been
“substantially completed” before Slack became final.
We agree
with the Board’s conclusion that the case law, including Slack,
required the ALJ to deny a claim for an attorney’s fee that was
based on a statute that had been declared unconstitutional.
In Slack, the Supreme Court held that KRS 342.320(2)(c)
was unconstitutional as a violation of the employer’s right to
procedural due process and as “a pure act of arbitrary power that
violates Section 2 of the Kentucky Constitution.”3
Slack became
final on May 20, 2001, one day before Jennings filed his motion
for an attorney’s fee pursuant to KRS 342.320(2)(c).
Jennings argues that Slack should not be retroactively
applied to bar his claim for an attorney’s fee because his work
was “substantially completed” before Slack was final.
Jennings
states in his petition that “[t]he work and litigation of the
claim of Christopher Derrick Brian had already been substantially
completed [when Slack became final]. . . .
As such, Ched
Jennings is entitled to receive an attorney fee from Kentucky
Mirror & Plate Glass.”
However, Jennings fails to provide any
legal authority for this argument other than to argue that Slack
is being improperly applied retroactively.
Board Member Gardner in writing for the Board clearly
3
Slack, 39 S.W.3d at 813.
-3-
and concisely addressed the issue raised by Jennings as follows:
In the instant case, unlike in Burns v.
Level, [Ky., 957 S.W.2d 218 (1998)] the issue
of constitutionality of KRS 342.320(c) was
properly raised by Kentucky Mirror.
Obviously, the issue of the constitutionality
of that statute could not be raised until
Jennings requested an attorney fee pursuant
to it. It is well-settled that an attorney
is not entitled to a fee until the fee is
approved by the ALJ. Land v. Newsome, Ky.,
614 S.W.2d 948 (1981). That portion of the
claim, then, was not concluded at the time
Slack was rendered. One day after Jennings
filed his motion for an attorney fee pursuant
to KRS 342.320(2)(c), Kentucky Mirror filed a
response in which it raised the issue of
constitutionality of that statute. Thus, the
issue of constitutionality of that statute
was properly raised at the earliest possible
time. Even under the holding in Burns v.
Level, it would be proper to apply the
Supreme Court’s holding in City of Louisville
v. Slack to this claim.
We agree with the Board and affirm on this issue.
As a final matter, Kentucky Mirror claims that
Jennings’s petition for review is so frivolous that sanctions
pursuant to KRS 342.310 are appropriate.
KRS 342.310(1) states:
If any arbitrator, administrative law
judge, the board, or any court before whom
any proceedings are brought under this
chapter determines that such proceedings have
been brought, prosecuted, or defended without
reasonable ground, he or it may assess the
whole cost of the proceedings which shall
include actual expenses but not be limited to
the following: court costs, travel expenses,
deposition costs, physician expenses for
attendance fees at depositions, attorney
fees, and all other out-of-pocket expenses
upon the party who has so brought,
prosecuted, or defended them.
Further, CR4 73.02(4) provides:
If an appellate court determines that an
4
Kentucky Rules of Civil Procedure.
-4-
appeal or motion is frivolous, it may award
just damages and single or double costs to
the appellee or respondent. An appeal or
motion is frivolous if the court finds that
it is so totally lacking in merit that it
appears to have been taken in bad faith.
From our research it appears that the workers’
compensation cases in which sanctions have been imposed have been
cases where a party has challenged a finding of fact made by the
ALJ that was supported by substantial evidence.5
In Western
Baptist Hospital v. Kelly,6 the Supreme Court stated that “[t]he
WCB is suppose to decide whether the evidence is sufficient to
support a particular finding made by the ALJ, or whether such
evidence as there was before the ALJ should be viewed as
uncontradicted and compelling a different result.
judgment calls.
These are
No purpose is served by second-guessing such
judgment calls, let alone third-guessing them.”7
In the case sub judice, Jennings has challenged whether
a recently decided case could be applied to deny his request for
attorney’s fees.
While we have clearly rejected the novel legal
argument advanced by Jennings, we do not find that the appeal “is
totally lacking in merit that it appears to have been taken in
bad faith.”8
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
5
Peabody Coal Co. v. Goforth, Ky., 857 S.W.2d 167 (1993);
Daniel v. Armco Steel Co., Ky.App., 913 S.W.2d 797 (1995).
6
Ky., 827 S.W.2d 685 (1992).
7
Western Baptist, 827 S.W.2d at 687.
8
CR 73.02(4); see also Woolum v. Woolum, Ky.App., 684 S.W.2d
20, 22-23 (1984).
-5-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas A. Dockter
Louisville, Kentucky
James G. Fogle
Louisville, Kentucky
-6-
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