RENDERED: NOVEMBER 8, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1021-WC
KENTUCKY EMPLOYERS’ MUTUAL INSURANCE APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-15-01407
ROGER HALL; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; ENCOVA MUTUAL INSURANCE GROUP (FORMERLY BRICKSTREET MUTUAL INSURANCE COMPANY); LETCHER COUNTY BOARD OF EDUCATION; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES. CETRULO, JUDGE: This is the third appeal to this Court from rulings in a
workers’ compensation case. The history of those proceedings becomes important
in regard to the issues raised herein, even though the issues themselves have
changed significantly.
FACTS AND PROCEDURAL HISTORY
Roger Hall (“Hall”) was a full-time employee at Letcher County High
School from 1976 to 2003, and, thereafter, occasionally worked as a substitute
teacher until 2014. During that time, Hall regularly used a breakroom in a Letcher
County building that, unbeknownst to him, contained asbestos. In September
2015, Hall filed his Form 102 application (“application”), alleging that he
developed mesothelioma due to the asbestos exposure. In that initial application,
he listed his date of last exposure as “gradual,” identified Letcher County Board of
Education (“Letcher County”) as his employer, and identified Appellant Kentucky
Employers’ Mutual Insurance (“KEMI”) as the school’s insurer in 1990. In 2017,
Hall amended the application, listing the date of last exposure as approximately
April 18, 2014.
In the first proceeding, the Administrative Law Judge (“ALJ”)
concluded that Hall’s mesothelioma was caused by his exposure to asbestos during
his course of employment. However, the ALJ determined that Hall’s claim was
untimely filed, finding that Hall’s last injurious exposure to asbestos occurred in
-2- 1990. Therefore, his workers’ compensation claim was dismissed. The Workers’
Compensation Board (“the Board”) reversed, based upon testimony that some of
the asbestos was not removed until Hall retired in 2003 or sometime thereafter.1
The Board held that the statute of limitations was satisfied, and that Hall’s claims
could proceed. Letcher County appealed, and this Court affirmed. On further
appeal to the Supreme Court, in Letcher County Board of Education v. Hall, 576
S.W.3d 123 (Ky. 2019) (“Hall 1”), the Supreme Court agreed the ALJ had erred by
finding the claim barred by the statute of limitations. The case was therefore
remanded to the ALJ in order to determine if Hall was entitled to workers’
compensation benefits. Upon remand, the ALJ considered additional medical
evidence and awarded Hall benefits, now concluding that Hall’s last exposure to
the hazard occurred on April 18, 2014. That award was not entered until April 9,
2020, and determined Hall was totally disabled and entitled to income and medical
benefits from the “defendant and/or its insurance carrier.”
Following this ruling, Letcher County appealed again, contending
now that the Board of Claims had exclusive jurisdiction over Hall’s claim as it was
a state government agency. First, the Board upheld the ALJ’s finding that the
Department of Workers’ Claims (“Department”) had jurisdiction, despite the
1 Hall retired as a full-time teacher in 2003, but he continued to work as a substitute teacher for Letcher County until 2014.
-3- provisions of Kentucky Revised Statute (“KRS”) 49.020 establishing the Board of
Claims. Then, this Court agreed and found that requiring state employees to bring
work-related injury claims in the Board of Claims would defeat the purpose of the
Workers’ Compensation Act (“the Act”).2 Finally, the Kentucky Supreme Court
again agreed and affirmed, noting that the sole issue on this second appeal was
whether the Board had jurisdiction to hear Hall’s claim. The Court so found and
issued that final opinion in June 2023. See Letcher Cty. Bd. of Educ. v. Hall, 671
S.W.3d 374 (Ky. 2023) (“Hall II”).
At this point, we note that the only real parties to all these actions
before the ALJ, the Board, and the two appellate courts were Hall and Letcher
County. However, in August 2021, while the second appeal was pending before
this Court, KEMI filed a motion to intervene in the appeal, and a motion for partial
remand. Therein, KEMI explained that it had determined that it did not insure
Letcher County on the date of the last exposure, ultimately found in 2020 by the
ALJ to be April 18, 2014.3 KEMI argued that Hall’s application had stated the
date of last exposure was “gradual.” As mentioned, Hall’s application had
2 In this second appeal to this Court, the parties also addressed payment of medical bills and interest issues which were not presented to the Supreme Court nor are they relevant to this third appeal.
3 Throughout these proceedings, KEMI had been defending Letcher County, based upon the initial application by Hall.
-4- identified Letcher County as the employer and identified KEMI as the school’s
insurer in 1990. In 2017, Hall had filed a notice of correction listing the date of
injury as approximately April 18, 2014, but that date of last exposure was not
determined until 2020, when the ALJ issued the second opinion and award
granting benefits to Hall.
While the second round of appeals was pending, KEMI’s motions to
intervene and/or remand filed before this Court asserted that insurance records
indicated that Encova Insurance (“Encova”) insured Letcher County on the 2014
last exposure date.4 However, KEMI’s motions to intervene and partially remand
were summarily denied by both this Court and the Supreme Court. In denying the
motions in 2021, our Court specifically stated as follows:
KEMI cites no authority to support its motion for a partial remand at this stage of the case directly to the ALJ. In addition, the scope of review by this Court is limited to matters that were subject to review by the Workers’ Compensation Board, and any remand would be to the Workers’ Compensation Board, not to the ALJ. KRS 342.290; see also Woods v. Private Investigations & Counter-Intelligence, Inc., 545 S.W.3d 854, 855 (Ky. App. 2018) (stating Kentucky law does not permit a litigant to bypass the Board).
Hall II, No. 2020-CA-1404-WC, Order (Ky. App. Sep. 23, 2021).
4 Encova was formerly known as Brickstreet Mutual Insurance Company.
-5- After both appellate courts had affirmed the jurisdiction of the Board,
but denied the motions to intervene, the matter was again remanded. KEMI then
filed another motion to intervene and asked the ALJ to certify coverage. Again,
KEMI explained that it did not insure Letcher County on the now final date of last
exposure and asked the ALJ to certify coverage or direct the Commissioner to do
so, so that the correct insurer would be required to make the payments awarded to
Hall. The ALJ declined to do so, ruling that coverage could not be certified to shift
liability for this matter to the appropriate carrier because the motion was untimely.
The ALJ stated that KEMI had made the motion before this Court as soon as
notified of the issue relative to coverage on the date of last exposure, but still found
it untimely. The ALJ further held “the responsibility to ask for coverage to be
certified rests with the carrier on the risk” who believes they should not be on the
risk.
KEMI appealed to the Board, and Encova then filed a notice of
representation and its own cross appeal before the Board. Both parties briefed the
issue before the Board, and on July 19, 2024, the Board entered an opinion and
order dismissing, as follows:
Because neither KEMI nor Encova have [ever] been joined as a party to this claim, neither has standing to prosecute this appeal. Therefore, this appeal is hereby dismissed. (Opinion Dismissing Page 3)
-6- We initially note neither KEMI nor Encova have ever been properly joined as a party to this claim. As such, neither has standing to pursue this appeal. The parties to this action are, and always have been, Hall and Letcher [County]. There is no remaining dispute of whether Hall contracted mesothelioma due to his exposure to asbestos while employed by Letcher [County]. Two trips through the appellate courts have clearly established that determination. Hall long ago reached age 70 and the payout of any income benefits has fully vested and is accruing six percent interest. (Opinion Dismissing Page 9-10)
In short, the Board’s ruling on appeal differed from the ALJ,
dismissing the action due to standing. In its dismissal, the Board further stated that
the only remaining dispute lies between insurers and could be raised in circuit
court.
KEMI does not deny it was not a party in the original proceedings, but
argues that following the second decision of our Supreme Court, both KEMI and
Encova had voluntarily entered their appearance and filed pleadings before the
ALJ and the Board. Letcher County joins in the arguments of KEMI before this
Court that the proper insurer should be held responsible for the payments owed to
Hall. Encova, now an appellee, argues the Board did not err in concluding this was
now a dispute between insurers to be decided in a circuit court and that the ALJ
lacked authority to certify coverage at this juncture.
The issues in this claim no longer center on Hall’s occupational
disease claim, but rather on which insurer is responsible for payment of workers’
-7- compensation benefits. Hall is fortunately now receiving his payments, and he is
the only party to this appeal who did not file a brief and who did not object below
to the motion to certify coverage.5 Instead, we are now confronted with questions
of standing, joinder, jurisdiction, laches, and preservation, to name a few.
STANDARD OF REVIEW
“[R]egarding questions of law, this Court is bound neither by the
decisions of an ALJ or the Board regarding proper interpretation of the law or its
application to the facts. In either case, the standard of review is de novo.” Miller
v. Go Hire Emp. Dev., Inc., 473 S.W.3d 621, 629 (Ky. App. 2015) (citation
omitted). An ALJ’s decision that a claim was untimely based upon interpretation
of the Act is a matter of law. Anderson v. Mountain Comprehensive Health Corp.,
628 S.W.3d 10, 14 (Ky. 2021).
Further, resolution of this issue requires statutory interpretation.
When interpreting a statute, this Court must first look to the plain language of the
statute and if the language is clear, the plain meaning is presumed to be what the
legislature intended. University of Louisville v. Rothstein, 532 S.W.3d 644, 648
(Ky. 2017) (citations omitted). As the Supreme Court held in Hall II, jurisdiction
5 In fact, Hall asked the Board to order the appropriate party to pay the benefits, and the Board ordered Letcher County to immediately commence payment of Hall’s award pending appeal.
-8- is a procedural threshold through which all claims must pass. Hall II, 671 S.W.3d
at 379 (citations omitted).
ANALYSIS
We begin with the ALJ’s decision and the basic statutory provisions
that are relevant to the issues now before this Court. KRS 342.316(10) provides as
follows:
When an employee has an occupational disease that is covered by this chapter, the employer in whose employment he or she was last injuriously exposed to the hazard of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier, except as otherwise provided in this chapter.
(Emphasis added.)
This is confirmed by case law interpreting the Act as well. See Henry
Vogt Mach. Co. v. Quiggins, 596 S.W.2d 17, 20-21 (Ky. App. 1979). There is no
dispute that Hall’s occupational disease becomes the responsibility of the insurer at
the date of last exposure, April 2014. However, according to both KEMI’s brief
and Letcher County’s brief, that insurer is Encova. Encova does not dispute
coverage in its brief, but simply argues the other parties failed to raise the issue of
coverage on the date of injury when the date was finally adjudicated. Encova
further argues that to “stick” it with the bill after nearly a decade of litigation
-9- would be unfair. However, it is the statute governing occupational disease claims
that “sticks” responsibility upon the insurer on the date of last exposure.
The Act provides that “[a]ll policies insuring the payment of
compensation under [the Act] shall contain a clause” that notice to the employer
“shall be considered notice or knowledge . . . on the part of the insurer . . . and that
the insurer shall . . . be bound by . . . [all] awards. . . rendered against the insured.”
KRS 342.360. Further, the Act provides that the insurer will “promptly pay . . . all
benefits . . . awarded[,] . . . and that the obligation shall not be affected by any”
failures in giving notice. KRS 342.365.
All of these provisions are crucial to the intent and purpose of the Act,
to provide prompt coverage for our Commonwealth’s injured workers. The
primary purpose of the Act is to aid and compensate workers, and the statutes must
be interpreted in a manner that is consistent with that purpose. Kindred Healthcare
v. Harper, 642 S.W.3d 672, 679 (Ky. 2022). Fortunately, the Board herein did
order that Hall’s benefits be paid immediately after multiple prior appeals.
Unfortunately, despite the clear intent of the statute to provide for coverage, the
Act itself does not seem to address whose responsibility it is to notify carriers of a
claim when the date of last exposure is changed from that initially identified by the
claimant.
-10- As indicated, the ALJ found the responsibility to ask for coverage
certification rested with the carrier on the risk.6 The ALJ also found the motion to
certify coverage was untimely. Finally, the ALJ suggested that authority was
limited because the relief KEMI requested had been sought and denied before both
this Court and the Supreme Court.
Taking those rulings in reverse order, a quick review of all four
appellate court decisions confirms that certification of coverage was never
addressed or raised on appeal, except by KEMI’s motions to intervene. “It is well
settled that failure to raise an issue before an administrative body precludes the
assertion of that issue in an action for judicial review[.]” Urella v. Kentucky Bd. of
Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997) (citing Jackson v. State Auto.
Mut. Ins. Co., 837 S.W.2d 496, 498 (Ky. 1992); Personnel Bd. v. Heck, 725
S.W.2d 13, 17 (Ky. App. 1986)); Puckett v. Cabinet for Health & Fam. Servs., 621
S.W.3d 402, 407 (Ky. 2021) (reaffirming Urella).
Yet here, the ALJ was not precluded from addressing this issue
because the appellate court rulings on the motions did not address certification of
coverage. The appellate courts declined to grant intervention by a new party
because that issue had not been presented below to the Board or the ALJ. As we
stated in our Order, our scope of review is limited to matters that were subject to
6 In contrast, the Board dismissed the claim because the carriers were not parties.
-11- review by the Board. Nothing precluded the ALJ from considering the request for
a certificate of coverage once the appellate courts’ jurisdiction was complete. This
Court did not “pass on” a legal question so as to involve a law of the case ruling.
See Puckett, 621 S.W.3d at 409. Neither did the Supreme Court, as it noted the
only issue before it was one of jurisdiction of the Workers’ Compensation Board
versus the Board of Claims. Hall II, 671 S.W.3d at 379.
The ALJ further concluded that KEMI’s motion was untimely, yet
there is nothing in the statute that creates a timeline for certification. In fact, both
KEMI and Encova agree there is no authority in KRS Chapter 342 or in the
regulations that dictates when a motion to certify coverage is timely or untimely.
The ALJ did not refer to any authority in finding the motion untimely. As the
Supreme Court held in Anderson, “[t]he dispositive issue, in this case, is not a
question of fact, but a matter of law, the ALJ’s misapplication of [the Act].”
Anderson, 628 S.W.3d at 14. “The ALJ dismissed [KEMI’s motion] as untimely,”
and, in the absence of any authority for the ALJ’s decision, we conclude that a
motion to certify coverage and join the proper insurer filed within 30 days of the
finality of the Supreme Court’s decision appears timely. Id.
In so holding, we look to the regulations and note that even as to
joinder, motions need only be brought as soon as practicable. 803 Kentucky
Administrative Regulation (“KAR”) 25:010, Section 2, subsection 3 provides:
-12- (a) All persons shall be joined as defendants against whom the ultimate right to relief pursuant to KRS Chapter 342 may exist, whether jointly, severally, or in the alternative. An administrative law judge shall order, upon a proper showing, that a party be joined or dismissed.
(b) Joinder shall be sought by motion as soon as practicable after legal grounds for joinder are known. Notice of joinder and a copy of the claim file shall be served in the manner ordered by the administrative law judge.
In JSE, Inc. v. Ahart, we held “that the ALJ acted within his
discretion” in granting a motion to join a party more than two years after the date
of the work-related injury. 667 S.W.3d 60, 72 (Ky. App. 2020). The case, and the
issue as to who was the employer in that case, was held to be complex. Id. at 73.
Here, our rules of appellate procedure limited what actions could be taken below
while the appeals were pending. “[T]he filing of a notice of appeal divests [a] trial
court of jurisdiction to rule on any issues while the appeal is pending.” Young v.
Richardson, 267 S.W.3d 690, 695 (Ky. App. 2008) (citations omitted). Of course,
those principles apply equally to an ALJ and the Board in a compensation
proceeding.
Based upon our review of the timing and dates of the appellate court
proceedings, we agree with KEMI that the first opportunity to seek certification of
coverage before the ALJ may have been on remand after finality was issued by the
-13- Supreme Court. Arguably, when Hall amended his application and asserted a
revised date, someone should have been alerted to the issue of the proper insurer,
but neither the statute nor the regulations place that obligation upon the insurer
identified by Hall. 803 KAR 25:010, Section 2(3) does not require a specific party
to move for joinder, and the statute appears silent as to who bears the obligation to
certify the correct coverage.
The ALJ concluded that KEMI bore the responsibility to identify and
join Encova. In contrast, KEMI argues the statute places the burden on either Hall,
as claimant, with the filing of the application or the Commissioner under KRS
342.270(1). KEMI is correct that KRS 342.270 provides the framework for the
Commissioner to certify coverage for the initial mechanism of a claim. Similarly,
KRS 342.275(1) provides the statutory mechanisms for initial assignment of the
claim to an ALJ. However, none of the provisions place responsibility for
certification of coverage upon one insurer to another insurer. In the absence of any
provision, statute, or regulation that dictates when such a motion should be filed or
who is responsible for requesting that certification as to coverage, the ALJ erred in
denying relief and refusing to determine the appropriate carrier.
We further note that it is in keeping with the purposes of the Act that
insurers and employers are inexorably tied to each other. KRS 342.360.
Jurisdiction of the insured is jurisdiction of the insurer, and an insurer is bound and
-14- subject to all “awards, judgments, or decrees.” Id. We, therefore, submit that
while an insurer may not expressly be a party to a claim, it carries and maintains
the same interests as the named employer, and consequently, maintains the same
rights, duties, and obligations. The coverage of employers in Kentucky through an
insurance policy is tantamount to accomplishing the underlying purpose of the Act;
it provides the guarantee of payment of benefits to an injured worker. We submit
that, as such, coverage questions are properly and necessarily justiciable by an
ALJ. See generally Kentucky Uninsured Employers’ Fund v. Hoskins, 449 S.W.3d
753 (Ky. 2014); see also Uninsured Employers’ Fund v. Hoskins, No. 2015-SC-
000657-WC, 2017 WL 6380219 (Ky. Dec. 14, 2017) (not to be published) (both
addressing whether a claimant was covered under an insurance policy). Whether
Hall should have certified coverage upon his amendment, or whether the
Commissioner or ALJ should have done so, is not clear from the Act or any
regulation or case law that we have found. However, it is also not clear that
KEMI, identified by the claimant as insurer, had any responsibility to do so.
Turning then to the Board’s dismissal, we also find error in that
regard. While the ALJ found the insurer had a responsibility to certify coverage,
the Board dismissed the case because the insurers were not parties. However, our
Courts have long held that standing exists when one has a “judicially recognizable
interest in the subject matter[,]” and that interest is “present and substantial[.]”
-15- City of Louisville v. Stock Yards Bank & Tr., 843 S.W.2d 327, 328-39 (Ky. 1992)
(internal quotation marks and citations omitted); see also Windchy v. Friend, 920
S.W.2d 57, 58 (Ky. 1996) (finding that the Special Fund had standing to contest an
award of attorney fees). The Board is clearly authorized to determine whether a
decision of the ALJ conforms with KRS Chapter 342, regardless of whether the
insurers were actual parties to the proceeding. KRS 342.285(2) provides for the
Board to review an order of the ALJ to determine whether or not:
(a) The administrative law judge acted without or in excess of his powers;
(b) The order, decision, or award was procured by fraud;
(c) The order, decision, or award is not in conformity to the provisions of this chapter;
(d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record; or
(e) The order, decision, or award is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
The Board concluded that the matter must be dismissed because
neither Encova nor KEMI were joined as parties to the action. However, both
insurers had in fact filed notices of representation before the Board. Moreover, “an
insurance carrier may be made a party” to the workers’ compensation proceeding,
and the ALJ retains “jurisdiction to decide questions [concerning] the insurer’s
-16- obligation to pay workers’ compensation benefits on behalf of its insured.”
Custard Ins. Adjusters, Inc. v. Aldridge, 57 S.W.3d 284, 287 (Ky. 2001).
Indeed, there is case law suggesting that a circuit court would have no
jurisdiction over these matters if the parties were to attempt a separate civil action.
See Kentucky Employers’ Mutual Ins. Authority v. Casada, No. 2002-SC-0196-
MR, 2003 WL 21258891, at *2 (Ky. May 22, 2003) (not to be published). We also
note, as we did in our prior appeal of this case, that a Letcher County trial court
had previously dismissed Hall’s civil suit, reasoning that it was work-related and
his exclusive remedy was to file a workers’ compensation claim. See Hall II, 671
S.W.3d at 379.
The Board in its opinion, referring to Custard Insurance Adjusters,
Inc. v. Aldridge, concluded that this case was now simply a dispute between two
insurers and not a matter for the ALJ or Board to determine. We do not agree with
this interpretation of Aldridge or that this dispute turns solely on the interpretation
of insurance contracts or the terms of the contractual relationship between the
carrier(s) and the employer. Id. The questions presented herein are governed by
the provisions of KRS Chapter 342, not by the policy of insurance so as to require
a separate cause of action in a circuit court.
Aldridge specifically held that several provisions of the Act allow an
insurance carrier to be made a party to the proceedings. 57 S.W.3d at 287. As in
-17- Aldridge, the factfinder has jurisdiction to decide questions affecting the insurer’s
obligation to pay workers’ compensation benefits on behalf of its insured. See id.
Furthermore, having been made a party, an insurer may question whether or not it
had issued “a valid, outstanding policy” that covered the employer at the time of
the worker’s injury. Lawrence Coal Co. v. Boggs, 218 S.W.2d 670, 671-72 (Ky.
1949).
As in Aldridge, the heart of this dispute is the scope of the subject
matter jurisdiction of the Board. This is not the situation found in Wolfe v. Fidelity
& Casualty Insurance Company of New York where an insurer was alleged to have
failed in its duty to defend an employer. See generally 979 S.W.2d 118 (Ky. App.
1998). There, the scope of the contractual duties was governed by the policy, not
by the provisions of KRS Chapter 342. Id. Here, KEMI has defended Letcher
County throughout, and Letcher County joins KEMI in asking this Court to remand
the matter to determine whether Encova’s policy covered the date of last exposure
of Hall.
KRS 342.325 provides that “[a]ll questions arising under this chapter,
if not settled by agreement of the parties interested therein . . . shall be determined
by the [ALJ] except as otherwise provided in this chapter.” The Court in Aldridge
noted the number of provisions within Chapter 342 that address the relationships
-18- between employers, their insurance carriers, and injured workers, and several of
them are relevant to a consideration of the matter at issue, including:
[1.] KRS 342.340 – requires that every employer must either insure or otherwise secure the payment of its workers’ compensation liability.
[2.] KRS 342.360 – charges the insurer with the employer’s notice or knowledge of the injury; provides that “jurisdiction of the insured for the purpose of this chapter shall be jurisdiction of the insurer;” and provides that “the insurer shall in all things be bound by and subject to the awards, judgments or decrees entered against the insured.”
[3.] KRS 342.365 – requires workers’ compensation insurance policies to contain an agreement by the insurer to promptly pay all benefits to those workers who are entitled to receive them and also provides that the agreement is to be construed as a direct promise between the insurer and the injured worker and that it is enforceable by the worker.
Aldridge, 57 S.W.3d at 287. Under all of the above provisions, the insurance
carrier then becomes necessarily an interested party to any decision or award made
by the Board. Lawrence Coal Co., 218 S.W.2d at 672.7
The Board abandoned its duty to mandate coverage and bind the
proper insurer by finding that it could not address these issues because the carriers
“were not parties.” That decision permits an insurer of compensation benefits to
7 We also note that Encova actually agreed below that joinder was still permissible, and indeed it sought to join in the appeal to the Board.
-19- refuse to fulfill its obligations under the Act which we find inconsistent with the
intent and purpose of the Act. We therefore reverse the Board’s finding in that
regard and instruct the Board to remand the matter to the ALJ for fact finding, i.e.,
for a determination of the proper carrier responsible for this loss.
Finally, although the Board dismissed the matter due to the carriers’
failure to join as parties, it also addressed laches. We likewise address that to
simply say that what comprises unreasonable delay is dependent upon the facts of a
particular case. See Plaza Condominium Ass’n, Inc. v. Wellington Corp., 920
S.W.2d 51, 54 (Ky. 1996) (citation omitted). Here, the Board reiterated that KEMI
never moved to be joined as a party after the orders issued by the appellate courts,
nor did it move to join Encova as a party. However, it did move to obtain
certification of coverage for its “insured” employer, Letcher County. Hall did not
object to that motion, and Encova similarly sought to intervene as a party to
address that motion. Generally, the doctrine of laches provides claims may be
barred in such circumstances where a party engages in unreasonable delay, to the
detriment or prejudice of another, rendering it inequitable to allow that party to
reverse a previous course of action. Here, the request for certification did not
result in injury, damages, or prejudice to Hall. Indeed, it would prolong the
process for Hall and his employer to require the parties to institute an action in
circuit court. The Board’s original opinion held that Hall was entitled to
-20- immediate payments from his employer and to medical benefits from the
“defendant and/or its insurance carrier.” Determination of the responsible carrier
is imperative and, as the Board’s opinion noted, “the compensability of certain
medical bills still remains for adjudication by the ALJ.” It makes no sense to have
these fights on two separate fronts when the issues arise from the provisions of the
Act. In Motorists Mutual Insurance Company v. Terry, 536 S.W.2d 472, 473 (Ky.
1976), the Kentucky high Court held that the Board’s jurisdiction over the issue of
policy coverage at the time of injury conforms with the intent to benefit the
workers “who often do not have the financial means . . . to fight on two fronts[.]”
Id. at 473-74.
CONCLUSION
In Zurich American Insurance Company v. Journey Operating, LLC,
323 S.W.3d 696, 701 (Ky. 2010), the Kentucky Supreme Court held that the Act
grants an ALJ the authority to decide insurance coverage issues that affect the
benefits received by the claimant. The ALJ has the authority to decide whether an
employer’s workers’ compensation carrier covered the employer at the time of the
employee’s injury. See id. Just as the Board can determine “whether an
employment relationship existed between the claimant and the alleged employer,
so also may it determine an insurance company’s rights in a compensation
proceeding.” Terry, 536 S.W.2d at 473.
-21- For all the foregoing reasons, and in keeping with the exclusive
remedy provisions and intent of the Act, we again REVERSE the decision of the
Board and instruct the Board to REMAND the matter to the ALJ for a
determination of the insurer on the risk on the date of last exposure to Hall.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE ENCOVA MUTUAL INSURANCE GROUP James G. Fogle (FORMERLY BRICKSTREET Louisville, Kentucky MUTUAL INSURANCE COMPANY):
Ronald J. Pohl R. Tyler Hurst Huntington, West Virginia
BRIEF FOR APPELLEE LETCHER COUNTY BOARD OF EDUCATION:
W. Barry Lewis Hazard, Kentucky
-22-