THOMAS RIDGE v. VMV ENTERPRISES, INC.; HON. THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 6, 2002; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000449-WC
THOMAS RIDGE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-58317
v.
VMV ENTERPRISES, INC.; HON. THOMAS A.
NANNEY, ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Thomas Ridge petitions for review from an
opinion and order of the Workers’ Compensation Board (Board)
which upheld the decision of the Administrative Law Judge (ALJ)
dismissing Ridge’s claim for a back injury because Ridge failed
to join his back injury claim when he filed his knee injury
claim.
While apparently conceding that KRS 342.270(1) required
joinder of the claims, Ridge contends that the employer and its
insurance carrier waived the right to assert KRS 342.270(1) as a
defense and that the employer was estopped from asserting the
defense.
We agree with the Board and the ALJ that a letter
written before the filing of the knee injury claim would not
waive the joinder requirement nor estop the employer from
asserting said defense.
Hence, we affirm.
On July 3, 1998, while employed by VMV Enterprises,
Ridge sustained a work-related injury to his left knee.
Following the knee injury, Ridge returned to light-duty
employment.
On April 13, 1999, while still on light duty, Ridge
sustained a second work-related injury to his lower back.
On
November 3, 1999, the workers’ compensation carrier sent a letter
to Ridge’s attorney requesting the knee claim be settled and
afterwards the parties concentrate on the back claim.
On April 19, 2000, Ridge filed a workers’ compensation
claim seeking benefits for the knee injury without joining the
back injury.
The claim relating to the knee injury was settled
by way of agreement on August 20, 2000.
Following the settlement of the knee injury claim, on
February 26, 2001, Ridge filed a workers’ compensation claim
seeking benefits for his back injury.
On September 13, 2001, the
ALJ entered an order dismissing the back injury claim on the
basis that the claim violated the jurisdictional provision of KRS
342.270(1) requiring that all causes of action against an
employer must be joined, or else the unjoined claims are barred.
On February 6, 2002, the Board entered an order affirming the
decision of the ALJ.
This petition for review followed.
Ridge appears to concede that KRS 342.270(1) applies to
his claims; however, he asserts that the case should be remanded
to the ALJ for additional review and findings concerning his
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allegation that VMV and its insurance carrier are estopped from
relying upon KRS 342.270(1) because they initiated and agreed to
the bifurcation of the knee injury from the back injury claim.
KRS 342.270(1) provides, in relevant part, as follows:
When the application is filed by the employee
or during the pendency of that claim, he
shall join all causes of action against the
named employer which have accrued and which
are known, or should reasonably be known, to
him. Failure to join all accrued causes of
action will result in such claims being
barred under this chapter as waived by the
employee.
Both the requirement that all claims against an
employer be joined and the provision that failure to do so will
result in waiver of the claim are couched in clear, plain,
mandatory language.
in the wording.
There is no equivocation or lack of clarity
The meaning is simply that all claims must be
joined, and the failure to do so will bar any claims not joined.
There is no room for interpretation here.
Moreover, KRS
446.080(4) states that all words shall be construed “according to
the common and approved usage of language.”
and “will” means will.
“Shall” means shall,
Bowen v. Commonwealth ex rel. Stidham,
Ky., 887 S.W.2d 350, 352 (1994).
The only viable interpretation of KRS 342.270(1) is
that in order to preserve his back injury claim, Ridge was
required to join the claim to the knee injury claim.
Having
failed to do so, it is mandatory under the statute that the back
injury claim be barred.
However, while KRS 342.270(1) is mandatory,
nevertheless, mandatory procedural requirements may, under the
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proper circumstances, be deemed as waived.
See Carroll County
Memorial Hospital v. Yocum, Ky., 489 S.W.2d 246 (1972)(where
uncontradicted evidence was that an adjuster for the employer's
workmen's compensation insurer stated in telephone conversation
with claimant's attorney to not worry about statute of
limitations and to send him additional information regarding the
claim, employer and its insurer were estopped to rely upon
expiration of the limitations period).
However, “a strong case
is necessarily required when a party seeks to avoid the plain
provisions of a [procedural] statute.”
Id. at 248.
Ridge is vague in describing his estoppel theory and
cites us to no authority in support of his estoppel claim.
only evidence is the letter of November 3, 1999.
We construe
Ridge’s argument as relying upon the doctrine of equitable
estoppel.
The essential elements of equitable
estoppel are[:] (1) conduct which amounts to
a false representation or concealment of
material facts, or, at least, which is
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party subsequently
attempts to assert; (2) the intention, or at
least the expectation, that such conduct
shall be acted upon by, or influence, the
other party or other persons; and (3)
knowledge, actual or constructive, of the
real facts. And, broadly speaking, as
related to the party claiming the estoppel,
the essential elements are (1) lack of
knowledge and of the means of knowledge of
the truth as to the facts in question; (2)
reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
(3) action or inaction based thereon of such
a character as to change the position or
status of the party claiming the estoppel, to
his injury, detriment, or prejudice.
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His
Weiand v. Board of Trustees of Kentucky Retirement Systems, Ky.,
25 S.W.3d 88, 91 (2000), quoting Electric and Water Plant Board
of City of Frankfort v. Suburban Acres Development, Inc., Ky.,
513 S.W.2d 489, 491 (1974)(internal quotation marks omitted).
The only basis for Ridge’s estoppel claim is the letter
dated November 3, 1999, (after both injuries and before either
claim was filed) from the insurance carrier to Ridge’s counsel.
The letter stated, in relevant part, as follows:
Regarding [Ridge’s] knee claim. We have an
impairment rating of 5% whole person. Can we
get the knee claim 565/24333 settled and
concentrate on the back claim. Please
contact me to discuss settlement of the knee
claim.
We are persuaded that the statements made by the
insurance carrier in the November 3, 1999, letter do not meet the
criteria for relief under the doctrine of equitable estoppel.
First, the letter was written before either of the two
claims was filed, and the statements suggest nothing as to how or
when Ridge should file his claims.
Second, the statements do not
suggest that Ridge should not join the claims or otherwise comply
with KRS 342.270(1).
Third, the statements contain no false
misrepresentations or concealment of material facts.
Fourth, Ridge, through counsel, had knowledge of the statutory
requirements which needed to be complied with to properly pursue
a claim, and there was no lack of knowledge or means of knowledge
concerning the requirements of KRS 342.270(1).
Again, aside from the November 3, 1999, letter, Ridge
cites us to no other statement or conduct of the insurance
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carrier or the employer which could be construed as a waiver of
KRS 342.270(1).
As previously noted, “a strong case is
necessarily required when a party seeks to avoid the plain
provisions of a [procedural] statute.”
Yocum, 489 S.W.2d at 248.
In this case, Ridge’s evidence of waiver does not meet this
threshold.
For the foregoing reasons, the decision of the Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, VMV
ENTERPRISES, INC.:
John T. Carneal
Paducah, Kentucky
Lyn A. Douglas
Louisville, Kentucky
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