JAMES RISTER V. SCRUBET, INC.; ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
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ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-001552-WC
WORKERS' COMPENSATION BOARD NO. 08-00805
SCRUBET, INC. ;
HONORABLE JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) dismissed this coal workers'
pneumoconiosis claim on the ground that the claimant failed to comply with
KRS 342 .270(1) by joining it to his pending occupational hearing loss claim.
The Workers' Compensation Board affirmed the decision and a divided Court of
Appeals affirmed the Board. Appealing, the claimant continues to assert that
he complied with the statute by filing his pneumoconiosis claim during the
pendency of the hearing loss claim; that dismissal was too harsh a sanction ;
that the employer should be estopped from raising the issue of joinder in the
pneumoconiosis claim; and that KRS 342 .270(1) violates Sections 1 and 14 of
the Kentucky Constitution and the 14th Amendment to the United States
We affirm. KRS 342 .270(1) requires a worker to join all known causes of
action that have accrued against the employer to a pending workers'
compensation claim and treats a failure to do so as a waiver. The ALJ did not
err because the claimant filed a pneumoconiosis claim during the pendency of
his hearing loss claim but failed to join it and because the employer did
nothing to warrant an estoppel . Application of the statute to these facts did
not violate the constitutional guarantee of due process or equal protection .
The claimant sustained 35 years of occupational exposure to noise and
coal dust in multiple employments. His last exposure to both conditions
occurred on December 27, 2006, while working for the defendant. His family
physician informed him that he suffered from coal workers' pneumoconiosis in
March 2007 . The claimant notified his employer in a letter dated October 8,
2007 that he suffered from moderate to severe interstitial lung disease,
probably due to coal workers' pneumoconiosis, and intended to file a workers'
compensation claim .
On January 24, 2008 the claimant filed an occupational hearing loss
claim. The claim was assigned to ALJ Overfield . Proof was taken and the
hearing was scheduled for June 26, 2008. The hearing was held as scheduled,
immediately after which the claim was submitted for a decision .
The claimant filed his pneumoconiosis claim on June 25, 2008, the day
before the hearing in the pending hearing loss claim. He failed to inform ALJ
Overfield of the newly-filed claim or move to join it to the pending hearing loss
claim. . On June 30, 2008 the Department of Workers' Claims assigned the
pneumoconiosis claim to ALJ Terry and directed the employer to have the
claimant examined as provided by KRS 342 .316(3)(b) (4) (d) . In a special answer
filed on July 14, 2008, the employer raised a lack of timely notice and the
statute of limitations as special defenses to the pneumoconiosis claim.
ALJ Overfield dismissed the hearing loss claim on August 13, 2008 for
reasons unknown to this court. The pneumoconiosis claim was reassigned to
ALJ Kerr sometime thereafter. In an amended special answer filed on October
1, 2008, the employer denied liability for the claim on the ground that it was
barred by KRS 342 .270(l). ALJ Kerr agreed and dismissed the claim after a
hearing. The claimant asserts that ALJ Kerr erred and must be reversed.
KRS 342 .270(1) states as follows:
If the parties fail to reach an agreement in regard to
compensation under this chapter, either party may
make written application for resolution of claim. The
application must be filed within two (2) years after the
accident, or, in case of death, within two (2) years after
the death, or within two (2) years after the cessation of
voluntary payments, if any have been made. 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 .
I. FILING AS COMPLIANCE WITH KRS 342..270(l).
The claimant argues that ALJ Kerr should not have dismissed his
pneumoconiosis claim because he complied with KRS 342 .270(1) by filing it
during the pendency of his hearing loss claim . We disagree.
KRS 342 .270(1)'s joinder requirement was enacted in 1996 as a
legislative response to cases such as Woodbridge INOAC, Inc. v. Downs' and
Jeep Trucking, Inca v. Howard2 in which the courts confronted problems created
by the piecemeal litigation of workers' compensation claims . Contrary to the
claimant's argument, KRS 342.270(1) creates no exception based on the
different procedures for resolving injury and pneumoconiosis claims . In fact
Jeep Trucking concerned legal difficulties that resulted from the separate
litigation of overlapping injury and pneumoconiosis claims . The statute is
"clear, unequivocal, and mandatory" with respect to a worker's obligation to
join3 all known causes of action against the employer during the pendency of a
workers' compensation claim and with respect to the consequences of failing to
do so.4 The statute's purposes include not only judicial economy, minimizing
1 864 S.W .2d 306 (Ky. App . 1993) (nothing required multiple claims arising from the
same accident to be joined).
2 891 S.W.2d 78 (Ky. 1995) (separate litigation of overlapping injury and occupational
disease claims resulted in awards that exceeded the statutory maximum for total
disability and failed to provide a required credit against the occupational .disease
3 See BLACK'S LAw DICTIONARY 841 (7th e d. 1999) .
4 Ridge v. VMVEnterprises, Inc., 114 S.W.3d 845, 847 (Ky. 2003) .
litigation costs, and streamlining the administrative process but also ensuring
the correct resolution of legal issues.5
The claimant complains that dismissal was too harsh a sanction, but
KRS 342.270(1) does not include exceptions or give an ALJ discretion
concerning the consequences of a failure to comply. KRS 342.270(1) gave ALJ
Kerr no discretion to do anything but dismiss the claimant's pneumoconiosis
claim because it compelled a finding that he waived the claim by failing to
request the Department of Workers' Claims to join it to his pending hearing
loss claim, i.e., to request the Department to assign it to ALJ Overfield to be
considered with his hearing loss claim.
11. ESTOPPEL .
The claimant argues next that the employer should be estopped from
raising a defense under KRS 342 .270(1), noting that he filed the
pneumoconiosis claim during the pendency of the hearing loss claim and that
the employer suffered no prejudice by the lack ofjoinder. He reasons that the
employer's failure to raise the defect in the hearing loss claim, when it could
have been corrected, should bar the employer from raising it subsequently in
the pneumoconiosis claim. We disagree.
KRS 342.270(1) places the obligation to comply with the joinder
requirement on the claimant. Compliance is mandatory and without regard to
employer prejudice . Estoppel is an equitable remedy that an ALJ may use to
prevent an employer from benefiting from its own misconduct . The ALJ did not
err in this case by failing to estop the employer from raising a defense under
KRS 342 .270(1) because nothing indicates that the employer misled the
claimant into thinking that he was not required to comply with the statute or
that it engaged in conduct calculated to cause him to fail to do so.
III. CONSTITUTIONALITY OF KRS 342.270(l).
The claimant bases his constitutional argument on the discrepancy
the limitations periods for occupational disease and injury claims. KRS
342 .316(4)(a) provides a three-year period for filing an occupational disease
claim, but KRS 342 .270(1) requires an injury claim to be filed within a two-year
period. He argues on that basis that KRS 342 .270(l) operates to shorten the
limitations period for workers such as himself, who suffer from both an
occupational disease and an injury. He concludes that KRS 342 .270(1) denies
such workers a remedy, which violates Section 14 of the Kentucky
Constitution, and violates the due process and equal protection clauses of the
United States Constitution . The present facts belie his argument.
The claimant fails to explain how the discrepancy in the statutes of
limitation for injury and occupational disease denied him a remedy or violated
his right to due process or equal protection. The record indicates that it did
not. His pneumoconiosis claim was dismissed based on his failure . to join it to
his hearing loss claim, not because it was untimely. Mindful that courts
address constitutional questions only when required by the parties'
controversy, we decline his invitation to address the matter further.6
Stein v. Kentucky State Tax Commission, 266 Ky. 469, 99 S.W. 2d 443, 445 (1936) .
The decision of the Court of Appeals is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT,
John Earl Hunt
Eric C. Conn . PSC
P.O. Box 308
Stanville, KY 41659
COUNSEL FOR APPELLEE,
SCRUBET, INC. :
James Gregory Allen
Riley 8s Allen, PSC
106 West Graham Street
P.O . Box 1350
Prestonsburg, KY 41653