MARY FRANCIS TURPIN (now Tallent) v. PULASKI COUNTY BOARD OF EDUCATION; SPECIAL FUND; HON. MARK C. WEBSTER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: July 17, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
97-CA-1401-WC
MARY FRANCIS TURPIN (now
Tallent)
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-91-10239
PULASKI COUNTY BOARD
OF EDUCATION; SPECIAL FUND;
HON. MARK C. WEBSTER,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, KNOX, and MILLER, Judges.
BUCKINGHAM, JUDGE.
Mary Francis Turpin (now Tallent) petitions
for review of an opinion of the Workers’ Compensation Board
(Board) affirming a decision of the administrative law judge
(ALJ).
For the reasons set forth hereinafter, we affirm.
Tallent was employed by the Pulaski County Board of
Education (Pulaski County) as a speech pathologist which required
her to travel between three different elementary schools.
On
September 11, 1989, Tallent suffered work-related injuries to her
neck, head, and shoulders in an automobile accident.
She missed
several days of work as a result of the accident, but she
returned to the same position with Pulaski County through 1992.
On March 25, 1991, the ALJ approved a lump-sum settlement
agreement between Tallent and Pulaski County based on a twenty
percent permanent partial disability.
On November 15, 1995, Tallent filed a motion to reopen
pursuant to Kentucky Revised Statute (KRS) 342.1251 based upon a
worsening of her physical condition and an increase in her level
of occupational disability.
The Special Fund was not named as a
party defendant in the motion to reopen, and the ALJ entered an
order on January 12, 1996, reopening the case.
On April 5, 1996,
Pulaski County filed a motion to join the Special Fund as a
party, and the ALJ entered an order on April 15, 1996, granting
the motion and joining the Special Fund as a party.
The Special
Fund did not file any objection to its joinder prior to the ALJ’s
order.
However, at the prehearing conference held on June 13,
1996,2 the Special Fund objected to its joinder and argued that
Tallent’s claim against it was barred by the statute of
limitations.
1
All references to statutes and regulations herein are to
those in effect at that time.
2
The prehearing conference report states that the hearing
was held on March 13, 1996. However, both Tallent and the
Special Fund agree that the hearing was held on June 13, 1996.
-2-
After hearing the case, the ALJ entered an opinion and award
which found that Tallent was totally occupationally disabled but
that “[t]he Special Fund shall have no liability placed upon it
because of its late joinder and because the statute of
limitations bars any liability on behalf of the Special Fund.”
The ALJ noted that “[w]ere this the usual case, I would also have
no problem in making an apportionment of half of the liability to
the Special Fund . . . .”
In finding that the Special Fund
should have no liability, the ALJ determined that there was a
preexisting condition (scoliosis, for which Tallent had
Herrington rods implanted in her body as a teenager) which
required joinder of the Special Fund in the original action.
The
ALJ also stated, however, that “I do not find that there may have
been a basis for Special Fund liability at that time.”
The ALJ
also stated that since the statute of limitations had run, the
issue of the timeliness of the joinder pursuant to Pulaski
County’s motion was moot.
On appeal, the Board noted that “those factors for
establishing Special Fund liability were not present in Tallent’s
case until after the statute expired on September 11, 1991[,]”
and it held that the ALJ’s finding that the Special Fund should
have been joined in the original action was in error.
However,
the Board affirmed the ALJ’s dismissal of the Special Fund on the
ground that Tallent did not allege any of the grounds for
reopening set forth in KRS 342.125 in her motion to reopen so as
to bring the Special Fund “within any statutory scheme for
-3-
liability.”
The Board also stated that it was not persuaded that
the ALJ was incorrect in his determination that Tallent’s claim
against the Special Fund was barred by the statute of
limitations.
Following the Board’s affirming of the ALJ’s
opinion and award, Tallent petitioned for our review.3
We agree with the ALJ and the Board that Tallent’s
claim against the Special Fund was barred by the applicable
statute of limitations, KRS 342.185(1), which provides in
relevant part as follows:
[N]o proceeding under this chapter for
compensation for an injury or death shall be
maintained unless a notice of the accident
shall have been given to the employer as soon
as practicable after the happening thereof
and unless an application for adjustment of
claim for compensation with respect to the
injury shall have been made with the
department within two (2) years after the
date of the accident . . . .
As the statute provides a two-year period from the date of the
accident in which to bring a claim for compensation, Tallent’s
claim against the Special Fund is barred by the statute due to
its failure to bring such a claim within the two-year period.
Furthermore, the fact that Tallent apparently had no
evidence to support the arousal of her preexisting back condition
3
One member of the Board dissented from the Board’s opinion
in part and stated that since the “injury” was not known until
after the statute of limitations had run against the Special
Fund, the case could be reopened on the ground of “newly
discovered evidence” and the Special Fund could be made a party.
That member also stated that, in his opinion, the statute of
limitations has no application to reopenings.
-4-
until after the expiration of the two-year statute of limitations
does not allow the claim to be filed after the statute has run.
In injury claims involving a single traumatic event, the statute
of limitations runs from the date of the accident and the
“discovery rule” is inapplicable.
Co., Ky., 877 S.W.2d 611 (1994).
See Coslow v. General Electric
Thus, the statute of
limitations began to run on September 11, 1989 (the date of the
accident), and expired on that date in 1991, even though there
was no medical evidence concerning the low back injury until
after the latter date.
The next issue concerns the actual procedure involved
in the reopening of this case and in the joinder of the Special
Fund as a party.
As we noted previously herein, the ALJ’s
granting of Tallent’s motion to reopen was proper as Tallent
alleged a worsening of her condition and an increase in her
occupational disability.
See KRS 342.125(1).
The problems and
confusion arise because Tallent did not seek to make the Special
Fund a party in her motion to reopen and because the Special Fund
did not raise the statute of limitations as a special defense by
special answer as required by 803 KAR 25:010 § 1(8)(g).
The
Special Fund argues that its status as a state agency shields it
from the requirements of the regulation.
It cites Commonwealth,
Dept. of Highways v. Chinn, Ky., 350 S.W.2d 622 (1961).
However,
the Special Fund has obviously overlooked the case of Young v.
Tackett, Ky., 481 S.W.2d 661 (1972), which held that the Special
Fund’s failure to properly plead an affirmative defense based on
-5-
the statute of limitations effected a waiver of its right to rely
on that defense.
Id. at 663.
The Special Fund also argues that the statute of
limitations issue was tried by the consent of the parties and
that Tallent thereby waived any objection to the Special Fund’s
failure to plead the statute of limitations as a special defense.
The Special Fund cites Civil Rule (CR) 15.02 which provides in
relevant part that “[w]hen issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings.”
As the parties contested the statute of limitations
issue on its merits without objection by Tallent that the defense
had not been properly raised, we conclude that the issue was
tried by the consent of the parties although not specifically
raised by the pleadings.
CR 15.02.
As Tallent’s claim against
the Special Fund was barred by KRS 342.185, we find no error in
the dismissal of the Special Fund.
The opinion of the Board which affirmed the opinion and
award by the ALJ is affirmed.
KNOX, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, SPECIAL
FUND:
Mark D. Knight
Somerset, KY
David W. Barr
Labor Cabinet
Louisville, KY
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