EDWARD D. HAYS, ATTORNEY FOR THE CLAIMANT, GLYNDON W. BALLARD V. GLYNDON W. BALLARD; RAMSAY & ASSOCIATES; ROBERT L. WHITAKER, DIRECTOR OF SPECIAL FUND; HON. SHEILA LOWTHER, ADMINISTRATIVE LAW JUDGE; HON. WALTER W. TURNER, COMMISSIONER OF DEPARTMENT OF WORKERS' CLAIMS; AND WORKERS' COMPENSATION BOARD
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RENDERED: June 9, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002537-WC
EDWARD D. HAYS, ATTORNEY FOR THE
CLAIMANT, GLYNDON W. BALLARD
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-24327
v.
GLYNDON W. BALLARD; RAMSAY & ASSOCIATES;
ROBERT L. WHITAKER, DIRECTOR OF SPECIAL FUND;
HON. SHEILA LOWTHER, ADMINISTRATIVE LAW JUDGE;
HON. WALTER W. TURNER, COMMISSIONER OF
DEPARTMENT OF WORKERS’ CLAIMS; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant petitions for review of an opinion of
the Worker's Compensation Board (Board) affirming the
Administrative Law Judge's (ALJ's) decision to limit appellant's
attorney fee to $2,000.
Because the Board did not err in its
interpretation and application of KRS 342.320, we affirm.
The injured employee, Glyndon W. Ballard, was injured
on June 3, 1993 while an employee of Ramsay and Associates
Construction.
He was paid temporary total disability benefits
until March of 1997.
Ballard first consulted with attorney
Edward D. Hays, appellant, on June 12, 1998, and on July 23, 1998
contracted with appellant to represent him concerning his claim.
On January 12, 1999, the Arbitrator determined Ballard to be
totally and permanently disabled.
Ballard was awarded benefits
in the amount of $320 per week for 23.5 years or 1,222 weeks, for
a total of over $300,000.
The agreement between appellant and
Ballard would have permitted appellant to receive a fee of
$20,110.
However, appellant filed a motion for approval of an
attorney fee of $12,000.
In orders dated February 24, 1999 and March 9, 1999,
the Arbitrator awarded appellant a fee of $2,000, the maximum fee
permitted pursuant to KRS 342.320, as amended effective
December 12, 1996.
Appellant appealed to the ALJ, who affirmed
the order of the Arbitrator limiting the attorney fee to $2,000.
The ALJ stated as follows:
KRS 342.320(2)(a), is [sic] amended
effective December 12, 1996, provides that
attorney's fees for representation of parties
at the Arbitrator level shall not exceed
$2,000.00.
Mr. Ballard and his counsel argue
that this provision does not apply to this
claim, since the subject injury occurred
prior to the enactment of House Bill 1.
However, the only exception contained in KRS
342.320 is for claims arising out of injuries
prior to the enactment of House Bill 1, where
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the attorney/client employment contract was
also entered and signed prior to that date.
Based upon the foregoing, it is the finding
of the Administrative Law Judge that the
clear and specific language of KRS
342.320(2)(a) is controlling in this claim.
Land v. Newsom [sic], Ky., 614 S.W.2d 948
(1981); Claude [N.] Fannin Wholesale Co. v.
Thacker, Ky. App., 661 S.W.2d 477 (1983).
Pursuant to that provision, Mr. Hays' fee was
properly limited to the sum of
$2,000.00. . . .
Appellant appealed to the Board, and, on September 24,
1999, the Board affirmed the decision of the ALJ.
The Board, in
interpreting KRS 342.320 as limiting appellant's fee to
$2,000.00, stated:
. . . Hays argues that the date of injury
is the threshold issue and should be
controlling as to the amount of the attorney
fee even under KRS 342.320 as amended.
Hays
points out that KRS 342.320(2)(a) provides
that attorney fees at the Arbitrator level
shall not exceed $2,000.
However, Hays
directs our attention to Section .320(3),
which states, inter alia, "the date of injury
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or last exposure shall control the applicable
maximum attorney's fee."
Hays argues that
although these sections appear to be in
conflict, they are not.
Petitioner contends
that the language of the statute clearly
suggests the Legislature intended this to be
an "either/or" situation.
Either the $2,000
maximum applies for injuries subsequent to
December 11, 1996, or the applicable maximum
under the law in effect at the time of the
injury shall apply to all injuries prior to
December 12, 1996. . . .
. . . Unfortunately for Hays, Section
.320(2)(d) as amended also provides as
follows:
(d) Attorney-client employment contracts
entered into and signed prior to December 12,
1996 for injuries or date of last exposure
occurring prior to December 12, 1996, shall
not be subject to the conditions of
paragraphs (a), (b), and (c) of this
subsection, and the law existing at the date
of the injury or last exposure to the hazards
of an occupational disease shall apply.
-4-
When a provision is consistent with
existing law at the time the statute was
adopted and is consistent with the plain
language of the statute, then an appealing
body is to give it its plain and stated
purpose.
Bailey v. Reeves, Ky., 662 S.W.2d
832 (1984).
As we have previously stated,
however, the statutory analysis does not stop
there.
When there appears to be a conflict
between two provisions in a statute dealing
with the same or similar subject matter, it
is the obligation of the reviewing body to
harmonize those statutory provisions to the
extent possible.
Reisinger v. Grayhawk
Corp., Ky. App., 860 S.W.2d 788 (1993);
Ledford v. Faulkner, Ky., 661 S.W.2d 475
(1983).
When this process involves the
interpretation of a new statute replacing a
prior statute in conjunction with the
retention of a previous statute, then the
reviewing body must review both in an attempt
to ascertain the intent of the new statute.
Fields v. Twin City Drive-In, Ky., 534 S.W.2d
457 (1976).
If one of the two statutory
provisions deals with the subject matter in a
general way while the other is more specific,
then the specific statute controls.
-5-
Land v.
Newsome, Ky., 614 S.W.2d 948 (1981); Claude
[N.] Fannin Wholesale v. Thacker, Ky. App.,
661 S.W.2d 477 (1983).
Here, the limitation of $2,000 for
performance of services before an Arbitrator
is specific.
This is also true of the
language contained in Section .320(2)(d)
cited above.
We believe the language
contained in KRS 342.320(3) is more general
in nature.
Therefore, with the specific
controlling over the general, KRS
342.320(2)(a), when read in conjunction with
Section .320(2)(d) limits the fee to $2,000
before an Arbitrator.
Appellant argues on appeal that the Board erred in its
interpretation and application of KRS 342.320.
Appellant argues
that the provisions in the statute do not conflict, and therefore
there was no need for the Board to determine which was more
specific or general.
Appellant argues that the language in KRS
342.320(3) clearly states, "the date of injury or last exposure
shall control the applicable maximum attorney's fee."
Therefore,
because Ballard's injury occurred prior to December 12, 1996,
appellant argues that he is not subject to the $2,000 limit.
Appellant contends that, contrary to the Board's opinion, the
language in KRS 342.320(3) is not "general" or "non-specific",
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but clearly evidences that the legislature intended that the date
of injury should control the maximum attorney fee.
We disagree.
KRS 342.320, as amended effective December 12, 1996,
states in pertinent part:
(1) All fees of attorneys and physicians, and
all charges of hospitals under this chapter,
shall be subject to the approval of an
administrative law judge or arbitrator
pursuant to the statutes and administrative
regulations.
(2) Attorney’s fees for services under this
chapter on behalf of an employee shall be
subject to the following maximum limits:
(a) Twenty percent (20%) of the award not
to exceed two thousand dollars ($2,000) for
services performed up to and including the
date of a written determination by the
arbitrator. This fee shall be paid by the
employee from the proceeds of the award or
settlement.
. . . .
(d) Attorney-client employment contracts
entered into and signed prior to December 12,
1996, for injuries or date of last exposure
occurring prior to December 12, 1996, shall
not be subject to the conditions of
paragraphs (a), (b), and (c) of this
subsection, and the law existing at the date
of the injury or last exposure to the hazards
of an occupational disease shall apply.
(3) In approving an allowance of attorney’s
fees, the administrative law judge or
arbitrator shall consider the extent,
complexity, and quality of services rendered
. . . The date of injury or last exposure
shall control the applicable maximum
attorneys fee. (emphasis added).
The amended statute specifically states that attorneyclient contracts entered into before December 12, 1996 concerning
an injury which occurred before December 12, 1996 are not bound
by the $2,000.00 limit.
It can therefore be inferred that a
contract entered into after this date is bound by the limitation.
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Although this language appears to be in conflict with KRS
342.320(3), we agree with the Board's analysis that the more
specific language of KRS 342.320(2)(d) controls over the general
language of 342.320(3).
829 S.W.2d 942 (1992).
See, Williams v. Commonwealth, Ky. App.,
Further, KRS 342.0015 specifically
declares the provisions of KRS 342.320 to be remedial.
The
amendment, therefore, does not fall under the general rule
against the retrospective operation of statutes.
See Peabody
Coal Company v. Gossett, Ky., 819 S.W.2d 33 (1991).
Although
Ballard's injuries occurred prior to December 12, 1996, the
attorney-client contract was not entered into until July 23,
1998.
As such, we adjudge that the ALJ correctly applied KRS
342.320 in limiting appellant's fee to $2,000.00.
The decision of the Worker's Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, SPECIAL
FUND:
Edward D. Hays
Danville, Kentucky
David R. Allen
Frankfort, Kentucky
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