Larry D. Ashlock Real Party in Interest as Attorney for Cynthia Sipes v. Commonwealth of Kentucky, Department of Juvenile Justice

• Court: Kentucky Supreme Court
• Decided: February 18, 2015
• Docket: 2014 SC 000219
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION :

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED?' PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 19, 2015 NOT TO BE PUBLISHED

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LARRY D. ASHLOCK, REAL PARTY IN INTEREST AS ATTORNEY FOR CLAIMANT, CYNTHIA SIPES APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2013-CA-001645-WC WORKERS' COMPENSATION NO. 10-96674

COMMONWEALTH OF KENTUCKY, DEPARTMENT OF JUVENILE JUSTICE; CYNTHIA SIPES; HONORABLE JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant, Larry D. Ashlock, appeals the dismissal of his appeal

concerning an attorney fee dispute with his former client, Cynthia Sipes.

Ashlock argues that the Workers' Compensation Board ("Board") erred by

vacating and dismissing his appeal on the grounds that he was not a party to

the action and therefore could not file a motion to reopen Sipes's claim.

Ashlock argues that the Board's ruling was erroneous because: 1) he was a

party to the claim since there was a conflict over attorney fees; 2) the Chief

Administrative Law Judge ("CALJ") can reopen a claim on his own motion and would have done so in this matter; and 3) judicial economy is served by

allowing him to reopen the underlying claim. For the reasons set forth below,

we affirm the Court of Appeals.

Sipes suffered a work-related shoulder injury while employed as a youth

worker for the Kentucky Department of Juvenile Justice ("DJJ"). She hired

Ashlock to represent her during the workers' compensation claim process.

Sipes and Ashlock entered into a contingency fee agreement which stated that

he would be paid for legal services rendered pursuant to KRS 342.320(2). The

agreement also stated that if Sipes discontinued Ashlock's services before the

claim ended, he would have a valid lien against any of the claim's proceeds for

reasonable attorney fees and expenses. At some point before Sipes's claim was

settled,' she discharged Ashlock and informed him that she no longer needed

his legal services. Sipes then personally settled the claim with DJJ's third

party administrator.

Approximately a year after he was terminated by Sipes, Ashlock filed a

motion to reopen the claim. The motion argued that the claim should be

reopened pursuant to KRS 342.125(1)(a) and (c) because fraud or mistake

occurred in the entry of the settlement agreement. Ashlock also filed a motion

for attorney fees. Prior to this filing, Ashlock never filed a lien for his attorney

fees with the Department of Workers' Claims or notified DJJ's third party

administrator of an intent to assert a lien.

1 There is a disagreement between the parties as to the date Ashlock was discharged by Sipes. However, due to the disposition of this opinion, it is unnecessary to determine the exact date the termination occurred.

2 The CALJ entered an order finding that Ashlock set forth a prima facie

case for reopening the claim. The matter was then assigned to Administrative

Law Judge. Jeanie Owen Miller ("MO") who conducted a hearing. She found

that Sipes did not have good cause to terminate Ashlock and that he was

entitled to reasonable fees for services rendered. However, Ashlock disagreed

with the amount of money that the ALJ ordered Sipes to pay and believed that

the third party administrator or DJJ should pay his fees and accordingly

appealed to the Board.

The Board held that Ashlock was never joined as a party to the claim

because he did not file a motion to intervene pursuant to CR 24. KRS

342.125(1) states that a claim can only be reopened "[u]pon motion by any

party or upon an administrative law judge's own motion." (Emphasis added).

Thus, since Ashlock was not a party, and the CALJ did not reopen Sipes's

claim on his own motion, the Board found that the reopening was improper.

The Board vacated the ALJ's opinion and dismissed Ashlock's appeal. The

Court of Appeals affirmed and this appeal followed.

The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the findings of the ALJ, or if the evidence

compels a different result. Western Baptist Hospital v. Kelly, 827 S.W.2d 685,

687 (Ky. 1992). Further, the function of further review of the Board in the

Court of Appeals is to "correct the Board only where the Court perceives the

Board has overlooked or misconstrued controlling statutes or precedent, or

s committed an error in a sessing the evidence so flagrant as to cause gross

3 injustice. Id. at 687-688. Finally, review by this Court "is to address new or

novel questions of statutory construction, or to reconsider precedent when

such appears necessary, or to review a question of constitutional magnitude."

Id. Keeping these standards in mind, we affirm the Court of Appeals.

Ashlock first argues that the dismissal of his appeal was inappropriate

because he contends he was always a party to Stipes's claim. KRS 342.320

requires an attorney, at the conclusion of a claim, to file a motion for attorney

fees and prior to doing so the attorney does not have to be joined as a party.

Therefore, because he can file a motion without being joined as a party,

Ashlock contends an attorney must always be a party to the original claim. We

reject Ashlock's argument. While an attorney must file a motion for attorney

fees, that does not make him a party to the original, underlying claim. And

while an attorney is an indispensible party in a fee dispute, the mere fact such

a dispute arises does not automatically join the attorney as a party to the

original claim. Since Ashlock was not a party, he could not file a motion to

reopen under KRS 342.125 and the Board was correct in dismissing his

appeal.

Ashlock's second argument is that we should act as though the CALJ

reopened this matter upon his own motion because the CALJ originally ruled

that this matter should be reopened. In other words, Ashlock wants us to

believe that if the CALJ could, he would go back in time and reopen this matter

upon his own motion. We decline to agree with Ashlock's logic, and reject this

4 argument because the fact of the matter is the CALJ did not reopen this matter

upon his own motion.

Ashlock's last argument is that we should reverse the Court of Appeals

for purposes of judicial economy. He argues that even if he loses this appeal,

since the Board dismissed the matter on standing, he is not barred by res

judicata from filing a new motion to reopen along with a motion to be joined as

a party. However, we decline Ashlock's invitation because workers'

compensation is a statutory creation and we cannot ignore the plain fact that

KRS 342.125 requires either a party to file a motion or the CALJ, on his own

motion, to reopen a claim. James T. English Trucking v. Beeler, 375 S.W.3d 67,

71 (Ky. 2012).

For the above stated reasons, we affirm the decision of the Court of

Appeals.

Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. All concur.

5 COUNSEL FOR APPELLANT, LARRY D. ASHLOCK, REAL PARTY IN INTEREST AS ATTORNEY FOR CLAIMANT, CYNTHIA SIPES:

Larry Duane Ashlock

COUNSEL FOR APPELLEE, COMMONWEALTH OF KENTUCKY, DEPARTMENT OF JUVENILE JUSTICE:

Kenneth Lance Lucas Sarah C. Rogers

COUNSEL FOR APPELLEE, CYNTHIA SIPES:

Cynthia Sipes, pro se