Kelly Porter v. Axelon, Inc.

• Court: Court of Appeals of Kentucky
• Decided: May 2, 2025
• Docket: 2024-CA-1030
• Status: Unpublished

Opinion

RENDERED: MAY 2, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1030-WC

KELLY PORTER APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-17-85945

AXELON, INC.; JOHN JACQUEMIN; HONORABLE JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND TAYLOR, JUDGES.

THOMPSON, CHIEF JUDGE: Kelly Porter (Appellant) appeals from an opinion

and order of the Workers’ Compensation Board (the Board) dismissing an appeal

from a January 22, 2024 order of the Administrative Law Judge (ALJ) Hon.

Jonathan R. Weatherby. The ALJ granted the motion of Appellant’s attorney, Hon. Alex Berger, for attorney fees. After careful review, we find no error and

affirm the opinion and order of the Board.

FACTS AND PROCEDURAL HISTORY

On April 21, 2021, the ALJ determined that Appellant sustained a

work-related back injury on March 27, 2017, while in the employment of Axelon,

Inc. (Appellee). It awarded Appellant total temporary disability benefits,

permanent partial disability benefits, and medical benefits. The ALJ rendered

amended opinions and awards on May 13, 2021, and June 2, 2021. On appeal, the

Board affirmed in part the second amended opinion and award, and remanded the

matter to the ALJ for consideration of the two-multiplier. Neither party appealed

from the decision of the Board and the matter was returned to the ALJ for

recalculation of post-injury wages.

On remand, the ALJ entered an opinion and award on January 6,

2022, concluding that Appellant was entitled to application of the two-multiplier.

Both parties petitioned for reconsideration. On February 18, 2022, the ALJ issued

additional findings of fact to support its conclusion that Appellant was entitled to

the application of the two-multiplier. Appellee appealed to the Board.

On appeal, the Board vacated the ALJ’s determination concerning the

application of the two-multiplier and remanded with directions to recalculate

Appellant’s post-injury wages. Neither party sought further review. On remand,

-2- the ALJ entered an opinion and award on August 16, 2022, recalculating

Appellant’s post-injury wages under Kentucky Revised Statutes (KRS)

342.140(1)(d). The ALJ further concluded the two-multiplier did not apply

because Appellant did not return to work at the same or greater wages as the pre-

injury amount. Neither party filed a petition for reconsideration. On September

15, 2022, Appellant’s counsel filed a motion to approve his attorney’s fee pursuant

to KRS 342.320.

Appellant did not timely appeal. On September 16, 2022, Appellant,

pro se, mailed a request for an extension of time to file an appeal to the Board,

which was received on September 19, 2022. Appellee filed a response in

opposition to the motion. The Board subsequently entered an opinion and order

dismissing Appellant’s appeal as untimely. Appellant appealed to a panel of this

Court, then to the Kentucky Supreme Court, each of which affirmed.

After finality of that appeal, the Board remanded the matter to the

ALJ for consideration of Berger’s amended attorney fees motion. The ALJ granted

the motion by way of order rendered on January 22, 2024. Appellant objected to

the award of attorney fees by way of a motion filed on January 26, 2024. That

motion was treated by the Chief ALJ (CALJ) as a petition for reconsideration. The

petition was overruled on February 8, 2024. Appellant filed another petition for

reconsideration, which again was overruled.

-3- On February 22, 2024, Appellant, still proceeding pro se, appealed the

January 22, 2024 award of attorney fees to the Board. The appeal was held in

abeyance pending Appellant’s petition for writ of certiorari to the United States

Supreme Court.

Thereafter, the Board rendered an order directing Appellant to show

cause as to why the appeal should not be dismissed for failure to name an

indispensable party, i.e., attorney Berger. Appellant responded on July 18, 2024.

On July 26, 2024, the Board rendered an opinion and order dismissing the appeal

based on Appellant’s failure to name Berger. This appeal followed.

ARGUMENT AND ANALYSIS

Appellant argues that the Board erred in dismissing his appeal of the

ALJ’s award of attorney fees.1 The focus of his argument is that the ALJ

improperly awarded attorney fees while Appellant’s action before the United

States Supreme Court had reached finality. He asserts that Berger wrongfully

abandoned him by withdrawing from representation; that the ALJ erred in denying

1 Appellant’s Petition for Review, which he styled as a “Notice of Appeal,” does not conform to Kentucky Rules of Appellate Procedure (RAP) 49 addressing appeals from decisions of the Board. In the interest of judicial economy, we will ignore the deficiency and proceed with the review. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

-4- Appellant’s motion for reconsideration on this issue; and, that the Board erred in

failing to so rule.2

In workers’ compensation proceedings, the ALJ may award attorney

fees. KRS 342.320(1). “In approving an allowance of attorney’s fees, the

administrative law judge shall consider the extent, complexity, and quality of

services rendered[.]” KRS 342.320(3). “No attorney’s fee in any case involving

benefits under this chapter shall be paid until the fee is approved by the

administrative law judge[.]” KRS 342.320(4).

It is well-established that where attorney fees are awarded in a

workers’ compensation proceeding, and an issue arises on appeal as to the

propriety of the award, the attorney is a necessary party to the appeal. Peabody

Coal Co. v. Goforth, 857 S.W.2d 167, 170 (Ky. 1993). Further, 803 KAR3 25:010

§ 22(2)(c)2. requires that, on appeal to the Board, an appellant shall “[d]enote all

parties against whom the appeal is taken as respondents[.]” The failure to name an

indispensable party is considered a jurisdictional defect requiring dismissal.

Kentucky Rules of Civil Procedure (CR) 19.02.

2 Appellee Axelon, Inc. has filed a responsive brief, but takes no position on the issue raised in Appellant’s Notice of Appeal. 3 Kentucky Administrative Regulations.

-5- CONCLUSION

The Board dismissed Appellant’s appeal from the ALJ’s award of

attorney fees because Appellant failed to name Berger as a party to the appeal.

Berger, as attorney of record who moved for an award of attorney fees for his

representation of Appellant, was an indispensable party to that appeal. Per the

relevant provisions of the KRS, the KAR, and Peabody Coal Co., supra, the Board

properly dismissed the appeal. We find no error. For these reasons, we affirm the

July 26, 2024 order of the Workers’ Compensation Board dismissing Appellant’s

appeal.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE AXELON, INC.: Kelly Porter, pro se Covington, Kentucky Kristin M. Downs Lexington, Kentucky

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