ERIC M. LAMB v. REUBEN LITTRELL; SAFETY KLEEN CORPORATION; ROBERT WHITAKER, DIRECTOR OF SPECIAL FUND; HON. KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: MAY 2, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001988-WC
ERIC M. LAMB
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-74159
REUBEN LITTRELL; SAFETY KLEEN
CORPORATION; ROBERT WHITAKER,
DIRECTOR OF SPECIAL FUND;
HON. KEVIN KING, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION
BOARD
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE; HUDDLESTON AND McANULTY, JUDGES.
McANULTY, JUDGE.
This is a petition for review of a decision by
the Workers’ Compensation Board affirming an order issued by the
administrative law judge limiting Appellant to attorney fees in
the amount of $10,000.00.
We reverse and remand.
Appellant represented Rueben Littrell in a workers’
compensation claim against Safety Kleen Corporation (Safety
Kleen) and the Special Fund.
On June 14, 1996, Littrell
suffered a work-related injury to his back while employed by
Safety Kleen.
Littrell took a few months off, but returned to
work on August 10, 1996.
On September 15, 1998, Littrell
suffered an onset of increased symptoms and sought medical
treatment.
time.
Littrell was not able to continue working after this
Littrell employed Appellant as his attorney on September
29, 1999.
With Lamb’s assistance, Littrell filed an Application
for Resolution of Injury Claim with the Department of Workers’
Claims on June 30, 2000.
Beginning December 12, 1996, an arbitrator
preliminarily handled all workers’ compensation claims, but,
during the regular session of the General Assembly in 2000, the
legislature repealed all statutory references in the Workers’
Compensation Act to arbitrators and abolished Kentucky’s fouryear experiment requiring binding mediation.
effective December 12, 1996.
See KRS1 342.270(2)
The amendments eliminating
arbitration became effective July 14, 2000.
As stated in the opinion rendered by the Workers’
Compensation Board on August 15, 2001, pertaining to Appellant’s
appeal on the issue of attorney fees,
[i]n April 2000, in order to assure an
efficient procedural transition between the
old and new systems, Commissioner Walter W.
Turner by executive action ordered all
further claims to be directly assigned to
1
Kentucky Revised Statutes.
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administrative law judges, bypassing all
additional proceedings involving
arbitrators. Littrell’s cause of action was
one of those claims.
Eventually, Littrell and Safety Kleen settled the
claim for payments with a total value of $165,185.80.
The
administrative law judge approved the settlement on February 9,
2001.
Appellant sought attorney fees in the amount of
$13,009.29, the amount of recovery specified in Appellant’s
contract with Littrell (20% of the first $25,000 recovered, 15%
of the next $10,000 and 5% of the excess).
On February 9, 2001,
the administrative law judge rendered an order limiting the
attorney fees to $10,000 based on his interpretation of KRS
342.320(2)(b), as in effect from December 12, 1996 to July 14,
2000.
In support, the administrative law judge made the
following notations:
The Administrative Law Judge notes that the
contract for representation was entered into
between the Plaintiff and counsel on
9/29/99. Therefore, the 1996 amendments to
the Act apply to this motion for attorney’s
fees. Furthermore, the Administrative Law
Judge notes that this claim was never
practiced before an Arbitrator, being
assigned directly to an Administrative Law
Judge.
KRS 342.320 provides that an attorney is
limited to a maximum fee of $2,000 for
practice before an Arbitrator and, upon
appeal to an Administrative Law Judge, to a
maximum of $10,000 for any additional amount
recovered before the Administrative Law
Judge. The Administrative Law Judge
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believes that, reading paragraphs (2)(a) and
(2)(b) together, it was the legislature’s
intent to limit a Plaintiff’s attorney who
practiced only before an Administrative Law
Judge to a maximum fee of $10,000. In doing
so, the Administrative Law Judge notes that
paragraph (2)(b) states that the amount
awarded by the Administrative Law Judge
shall be “in addition to the fee, if any,
awarded” at the arbitration level. Since no
fee was awarded at the arbitration level,
the $10,000.00 fee cap must apply.
On February 23, 2001, Appellant filed a petition for
reconsideration requesting a finding of fact that the
administrative law judge would have awarded Appellant attorney
fees of $13,009.29, but for the cap of $10,000 in the 1996
Amendments of KRS 342.320(2)(b).
On March 9, 2001, the
administrative law judge made a finding that he would have
awarded the fee requested ($13,009.29) had the amount not
exceeded the $10,000 cap.
Appellant appealed the decision of the administrative
law judge to the Workers’ Compensation Board.
The Board
affirmed the decision, precipitating this appeal.
Appellant presents several issues on appeal, all
pertaining to one fundamental question which is, “what law
governing attorney fees for workers’ compensation cases applies
to this claim?”
Specifically, the issue is whether the 1994,
1996, or 2000 amendments to KRS 342.320 determine the maximum
amount of attorney fees to which Appellant is entitled.
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The standard employed by this Court when reviewing a
workers' compensation decision is set forth in Western Baptist
Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992):
The function of further review of the
[Workers' Compensation Board] in the Court
of Appeals is to correct the Board only
where the the [sic] Court perceives the
Board has overlooked or misconstrued
controlling statutes or precedent, or
committed an error in assessing the evidence
so flagrant as to cause gross injustice.
In this case, we believe that KRS 342.0015 and Daub v.
Baker Concrete, Ky., 25 S.W.3d 124 (2000) are dispositive of the
issues on appeal.
KRS 342.0015 is entitled “Application of 1996
(1st Extra Sess.) Ky.Acts ch. 1” and reads as follows:
The substantive provisions of 1996 (1st
Extra. Sess.) Ky. Acts ch. 1 shall apply to
any claim arising from an injury or last
exposure to the hazards of an occupational
disease occurring on or after December 12,
1996. Procedural provisions of 1996 (1st
Extra. Sess.) Ky. Acts ch. 1 shall apply to
all claims irrespective of the date of
injury or last exposure, including, but not
exclusively, the mechanisms by which claims
are decided and workers are referred for
medical evaluations. The provisions of KRS
342.120(3), 342.125(8), 342.213(2)(e),
342.265, 342.270(3), 342.320, 342.610(3),
342.760(4), and 342.990(11) are remedial.
(emphasis added).
In Daub, the Kentucky Supreme Court addressed the
application of the 1996 Act to the allowable attorney fees for
proceedings practiced before an arbitrator.
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See Daub, Ky., 25
S.W.3d 124 (2000).
The court noted that the attorney fees
statute in effect at the time was enacted, at least in part, to
correspond to the changes in the mechanism or procedure by which
claims were decided.
See id. at 127.
“Consistent with the
different types of procedure which were employed when litigating
a claim before an arbitrator and before and ALJ, the amended
version of KRS 342.320 contained different provisions with
regard to attorney’s fees.”
Id.
KRS 342.0015 makes it clear that the legislature
intended for the changes in procedure by which claims were
decided to apply to all claims pending on or after July 14,
2000, irrespective of the date upon which they arose.
25 S.W.3d at 128.
See Daub,
Accordingly, as the 2000 amendments to the
Workers’ Compensation Act eliminated the arbitration level and
assigned claims directly to an administrative law judge, the
commissioner ordered Littrell’s claim to be assigned directly to
an administrative law judge.
KRS 342.270(2).
KRS 342.0015 also makes it clear that the legislature
considers the amendments of KRS 342.320 to be remedial.
Daub, 25 S.W.3d at 128.
See
Moreover, the 2000 amendments to KRS
342.320 are consistent with the procedural amendments to KRS
342.270(2) because they eliminate all provisions for proceedings
practiced before an arbitrator.
In pertinent part, KRS
342.320(2) is as follows:
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In an original claim, 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 first
twenty-five thousand dollars ($25,000) of
the award, fifteen percent (15%) of the next
ten thousand dollars ($10,000), and five
percent (5%) of the remainder of the award,
not to exceed a maximum fee of twelve
thousand dollars ($12,000). This fee shall
be paid by the employee from the proceeds of
the award or settlement.
In view of the legislature’s express declaration that
the 2000 amendments to KRS 342.320 are remedial and the
procedure followed in this case, we conclude that the amendments
to KRS 342.320 apply to all claims pending on or after July 14,
2000, the effective date of the 2000 amendments.
S.W.3d at 128.
See Daub, 25
Appellant was not limited to attorney fees of
$10,000, but was limited to attorney fees of $12,000 under the
2000 amendments.
Therefore, we reverse the board.
In concluding the above, we are aware that KRS
342.320(b) goes on to state, “[a]ttorney-client employment
contracts entered into and signed after July 14, 2000, shall be
subject to the conditions of paragraph (a) of this subsection.”
However, we do not find that the 2000 amendments only apply to
attorney-client employment contracts entered into and signed
after July 14, 2000, when a pending claim filed June 30, 2000,
is assigned directly to an administrative law judge pursuant to
the 2000 amendments.
Thus, even though the Appellant and
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Littrell signed the employment contract on September 29, 1999,
we believe the 2000 amendments to KRS 342.320 on the issue of
Appellant’s attorney fees are applicable.
Since the administrative law judge has indicated that
he would have awarded Appellant the fee requested of $13,009.29,
we remand for entry of an order awarding him the sum of $12,000,
the maximum fee allowed under the 2000 amendments to KRS
342.320(2).
EMBERTON, CHIEF JUDGE, CONCURS.
HUDDLESTON, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
Eric M. Lamb
Lamb & Lamb
Louisville, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
Zoel D. Zakem
Frankfort, Kentucky
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