ROBERT L. WHITTAKER, Director of SPECIAL FUND v. BILL SMITH, Deceased; SALLY SMITH, Widow; WOLFE CREEK COLLIERIES; DONNA H. TERRY, Chief Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 26, 1999
TO BE PUBLISHED
ROBERT L. WHITTAKER,
Director of SPECIAL FUND
v.
APPEAL
FROM COURT OF APPEALS
NO. 97-CA-1306-WC
(Workers' Compensation Board No. 84-1497)
BILL SMITH, Deceased;
SALLY SMITH, Widow;
WOLFE CREEK COLLIERIES;
DONNA H. TERRY, Chief
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
OPINION
OF
APPELLEES
THE
COURT
AFFIRMING
This
workers' compensation
appeal
concerns
whether
the
widow of an injured worker who died for reasons unrelated to his
work injury is entitled to a continuation of benefits under his
award.
KRS 342.730(3).
Bill Smith was born on August 27, 1928, and had a second
grade
and
Sally
education.
around
the
His entire employment history involved work in
coal
mining
industry.
In 1954, he was married to
Smith, the claimant herein. Mr. Smith was seriously injured
at work on January 6, 1984, and in December, 1986, he was awarded
benefits for permanent total disability for so long as he was so
disabled.
The award was apportioned 71.43% to the employer and
28.57% to
the
Special
Fund.
Mr. Smith died on January 10, 1995, and was survived by the
claimant,
his
subsequent
widow.
events
The accuracy of the record with regard to
is
undisputed.
It
indicates
that,
in
January,
1995, the claimant sought a continuation of the award from the
employer
through
the
attorney
who
had
represented
her
husband.
The
record indicates that shortly thereafter she was advised by the
employer
to
attempts
to
contact
obtain
its
a
carrier.
continuation
The record documents several
of
the
award
from
the last of which is a letter dated June 27, 1996.
the
carrier,
Claimant's
attorney indicated that shortly after sending the letter he was
advised by telephone that it would be necessary to have the
claimant
substituted
as
a
party
to
the
action.
On July 16, 1996, claimant moved to be substituted as a
party to the underlying claim in order to recover the benefits to
which
she
was
entitled.
The motion was overruled by the Chief
Administrative Law Judge (CALJ) with leave to reinstate when
accompanied by a notarized affidavit in support of the motion, a
copy of Mr. Smith's
marriage
death
certificate.
certificate, and a copy of the parties'
A renewed motion which was accompanied by
the necessary documentation was filed on September 3, 1996, and the
employer's response indicated that it had no objection to the
requested
substitution
of
the
claimant.
Counsel
for
the
Special
Fund filed a notice of representation on September 25, 1996. On
October
22,
1996, the Special Fund filed a special answer in which
it asserted that the one-year period of limitations contained in
KRS 395.278 had expired, providing a complete defense to the claim
for
a
answer
continuation
of
and
a
ordered
benefits.
continuation
The CALJ overruled the special
of
-2-
benefits
to
the
claimant,
noting that it was the failure of the employer's carrier to respond
to claimant's inquiries in a timely fashion that had prevented her
from
filing
the
motion
within
the
statutory
period.
In its appeal to the Workers' Compensation
Board
(Board),
the Special Fund relied upon Hammons v. Tremco, Inc., KY., 887
S.W.2d
336 (19941, and Palmore
(19891,
as
supporting
its
v. Helton, KY., 779 S.W.2d
position.
196
The Special Fund emphasized
that it was a codefendant and should not be estopped from asserting
a limitations defense by the failure of the employer's carrier to
respond
in
a
timely
fashion.
A majority of the Board concluded
that the Special Fund had waived the defense of limitations by
failing to assert it in a timely manner.
803 KAR 25:OlO
§8.
The
dissent pointed out that claimant had failed to raise the
untimeliness of the Special Fund's defense; furthermore, the period
of limitations contained in KRS 395.278 was jurisdictional and did
Caldwell
not have to be pled by means of a special answer.
Bethlehem Mines Corp., KY., 455 S.W.2d
332 S.W.2d
Schultz, KY.,
v.
67 (1970); Schultz v.
253 (1960).
The Court of Appeals affirmed in a two-to-one decision
which distinguished Hammons v. Tremco, Inc. because it involved an
action that was pending at the death of the injured worker rather
than a final award.
Before
This
appeal
by
the
Special
Fund
followed.
1972, KRS 342.111 provided for a continuation of
benefits to the surviving dependents of an injured worker and
contained a period of limitations during which surviving dependents
could
seek
repealed
in
the
continuation
1972.
of
a
KRS 342.730(3)
final
award.
KRS
342.111
was
and KRS 342.750 were enacted at
-3-
that
time.'
Neither
contains
a
period
of
limitations.
reason, in Hammons v. Tremco, Inc. we
determined
law
and
regarding
the
abatement,
survival,
For
that the
general
of actions
revival
should apply to a claim for workers' compensation
that
benefits
which
was pending at the death of the injured worker.
As noted by the Court of Appeals, Hammons v. Tremco, Inc.
involved the requirements that an action which is pending at the
time of the plaintiff's death must be revived within one year by
the plaintiff's successor or personal representative and that the
successor or personal representative must be substituted as the
real
party
in
KRS
interest.
411.140, KRS 395.278, and CR 25.01(l).
This appeal does not concern the revival of an action that was
pending
and,
concerns
compliance
compensation
award
the
provisions
with
regard
to
of
a
surviving
final
workers'
dependents.
A
final
It has the same legal effect as a judgment, and it may
enforced
judgment
award
with
workers' compensation benefits is the equivalent of a
of
judgment.
be
therefore, abated upon the plaintiff's death. It
as
survives
such.
the
KRS
death
342.305.
of
a
Unlike a pending action, a
judgment
creditor.
For
that
reason, the rules concerning the survival of a pending cause of
action do not apply to this case.
See 46 Am.Jur.2d
Judgments § 421
(1994).
On January 6, 1984, the date of Mr. Smith's injury,
KRS 342.730(3)(a) provided that where an injured worker died from
causes unrelated to the work injury and where there was no child
under the age of eighteen or incapable of self-support, his widow
a
worker
'KRS 342.750, which applies to the surviving dependents of
who dies from a work-related injury.
-4-
was entitled to receive "income
benefits
specified
and
unpaid
[his] death, whether or not accrued or due at his death."
that
In
provision
other
as
implicit
in
the
terms
of
this
litigated
at
We view
award.
the terms of Mr. Smith's award provided that upon
words,
his death his widow was entitled to receive any unpaid income
benefits
upon
husband's
As the beneficiary of the award
authorized by the award.
her
terms.
death, claimant
was
entitled
to
enforce
its
To that end, upon motion and proof of her status, she was
entitled to the entry of an order and award which directed the
payment
of
The
income
benefits
question,
to
her.
therefore, is whether or not claimant sought
to enforce her rights as the beneficiary of the award in a timely
manner.
As we have noted previously, Chapter 342 no longer
contains a period of limitations with regard to obtaining the
continuation
of
a
final
workers'
compensation
award.
In any event,
we are aware of no period of limitations which would apply to these
facts which is less than eighteen months.2
We conclude, therefore,
that where claimant's motion for a continuation of the award was
filed eighteen months after the death of her husband, it was timely
filed
and
The
properly
decision
Lambert,
Wintersheimer,
approved.
of
the
Court
of
Appeals
is
affirmed.
C.J., and Graves, Johnstone, Keller, Stumbo, and
JJ.,
concur.
in which he concurs in result
Cooper,
J., files a separate opinion
only.
2KRs 413.090(l) contains a fifteen-year period of
limitations for an action on a judgment, and KRS 413.120 contains a
five-year period of limitations for an action upon a liability
created by statute or for an action not arising on a contract and
not otherwise enumerated.
-5-
ATTORNEY
FOR
APPELLANT:
'
Hon. David R. Allen
Labor Cabinet, Special Fund
360 South Third Street
Louisville, KY 40202
ATTORNEY
FOR
APPELLEES
SMITH:
Hon. Eugene Rice
P-0. Box 896
Paintsville, KY 41240
ATTORNEY FOR APPELLEE WOLFE CREEK
COLLIERIES:
Hon. Bennett Clark.
201 East Main Street
Lexington, KY 40507
-6-
I
RENDERED:
AUGUST 26, 1999
TO BE PUBLISHED
99-SC-0021-WC
ROBERT L. WHITTAKER,
Director of SPECIAL FUND
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 97-CA-1306-WC
(Workers' Compensation Board No. 84-1497)
v.
BILL SMITH, Deceased;
SALLY SMITH, Widow;
WOLFE CREEK COLLIERIES;
DONNA H. TERRY, Chief
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
CONCURRING
APPELLEES
OPINION
BY
JUSTICE
COOPER
I concur in the result reached by the majority in this case.
However,
I would not attempt to distinguish Hammons v. Tremco,
Inc., Ky.,
887 S.W.2d
336 (19941,
but would overrule it.
Hammons purported to apply the statute of limitations
contained in KRS 395.278 to a motion for continuation of benefits
filed under KRS 342.730(3).
However,
KRS
395.278
pertains
only
to the revival of actions in the name of a personal
representative.
personal
KRS 342.730(3)
representative
of
a
does not confer any rights on the
deceased
workers'
compensation
claimant.
specified
Rather,
the statute provides for direct payments to
survivors.
KRS 413.120(2)
provides a limitations period of five years
for an action on a liability created by a statute, when no other
time is fixed by the statute. In Aetna Casualtv & Suretv Co. v.
Snvder,
KY.,
291 S.W.2d 14 (19561,
Charles Selicman
(19621,
overruled on other grounds,
Distrib. Co. v. Brown, Ky., 360 S.W.2d
it was held that KRS 413.120(2) applied to an action for
recoupment
of
workers' compensation
342.055 (now KRS 342.700).
However,
payments
brought
statutory
665 S.W.2d
Thus,
proceedings.
under
KRS
the general statutes of
limitations apply only to "actions," i.e., judicial
not
509
proceedings,
Metts v. City of Frankfort, Ky. App.,
318 (1984).
I conclude that there is no period of limitations
applicable to a motion for continuation of benefits brought under
KRS 342.730(3).
However,
an action brought in circuit court 'Iby
any party in interest" to enforce an award under KRS 342.305
presumably would be subject to the five year limitations period
provided in KRS 413.120(2).
Snvder,
Aetna Casualtv & Suretv Co. v.
suora.
- 2 -
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