Mills v. Blake

734 S.W.2d 494, 1987 Ky. App. LEXIS 515
CourtCourt of Appeals of Kentucky
DecidedJuly 17, 1987
StatusPublished

This text of 734 S.W.2d 494 (Mills v. Blake) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mills v. Blake, 734 S.W.2d 494, 1987 Ky. App. LEXIS 515 (Ky. Ct. App. 1987).

Opinion

HOWARD, Judge.

In this case, the appellant, the Uninsured Employers’ Fund, seeks to overturn a judgment of the Crittenden Circuit Court upholding an award of workers’ compensation benefits to the appellee, Oman Blake.

Blake filed a claim with the Workers’ Compensation Board on September 22, 1983, against Wesken Wood, Inc., a sawmill where Blake had last worked. Blake claimed that he had developed work-related respiratory problems and was totally disabled. The evidence shows that Blake had also worked about twenty-seven and one-half (27½) years in underground mines, mostly in fluorspar mines. The medical testimony established that Blake had chronic obstructive pulmonary disease and pneumoconiosis (black lung).

On December 9, 1985, the Board found that Blake was 100% occupationally disabled by pneumoconiosis. The Board further found that Blake was employed by Wesken Wood when he was last exposed to the hazards which produced his disease. The monetary award was apportioned 40% against the Special Fund and 60% against the employer, who was then defunct resulting in the liability of the Uninsured Employers’ Fund.

On January 13,1986, the Board issued an order altering its findings of fact. The order stated Blake’s occupational disease was due to “work-related chronic obstructive pulmonary disease” and the liability was apportioned 25% against the employer and 75% against the Special Fund.

The Uninsured Employers’ Fund filed a petition for review of this award with the Crittenden Circuit Court. Blake filed a motion to dismiss on the ground the Uninsured Employers’ Fund neglected to name the Special Fund as a respondent. The court below overruled the motion and subsequently affirmed the decision of the Workers’ Compensation Board.

As a preliminary matter, we must determine whether Blake’s motion to dismiss was properly overruled.

Blake, as cross-appellant, argues that because of the failure of the Uninsured Employers’ Fund to name the Special Fund as a party, the court below did not have the jurisdiction to hear the appeal. In Compton v. American Commercial Barge Line Co., Ky.App., 664 S.W.2d 950 (1984), cited by Blake, this Court held that a circuit court lacks the jurisdiction to hear an appeal from the Workers’ Compensation Board when the appellant fails to name the Board as a party. This Court noted in [496]*496Compton, supra, that an appeal from an administrative body is not a matter of right but a privilege granted by statute and strict compliance is required. See Board of Adjustments of the City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978). KRS 342.285(1) requires that the Board be named as a party; thus, we held that the circuit court properly dismissed the appeal for lack of jurisdiction.

The Uninsured Employers’ Fund argues that under Milligan v. Schenley Distillers, Inc., Ky.App., 584 S.W.2d 751 (1979), the Special Fund is not an indispensable party to the appeal and, therefore, it is not fatal to the appeal to fail to name it. However, in Milligan, supra, the question was whether the Special Fund was an indispensable party, under CR 19.01, to an appeal from a circuit court judgment upholding an award or order of the Board. The Court in Flood, supra, stated that the civil rules, such as CR 19.01, do not apply before an appeal is perfected from an administrative board to the circuit court. Similarly, the indispensability of parties is not an issue in the case at bar.

KRS 342.285(1) requires that when a petition for appeal is made to the circuit court from an order of the Workers’ Compensation Board, the Board and the “adverse party” must be named as respondents. The statute says nothing about naming the Special Fund; thus, strict compliance with that statute is not an issue.

Further, it has been held that “[t]he Special Fund never suffers direct liability; it is only a source of funds for satisfaction of liability imposed upon the employer [KRS 342.120(5)] under given conditions.” Holbert v. Wickes Lumber Supply, Ky.App., 683 S.W.2d 946, 947 (1984). See Yocom v. Milish, Ky., 497 S.W.2d 702 (1973). Thus, the Special Fund’s liability in cases like this is derived from the employer. With all of the true adverse parties before the court, all conditions for the exercise of judicial power are present. See Flood, supra.

The Uninsured Employers’ Fund concedes that Blake suffers from an occupational disease; but it argues that the Board erred in assessing liability for this disease against Wesken Wood.

KRS 342.316(12) provides that:

When an employe has an occupational disease that is covered by this chapter, the employer in whose employment he 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 herein.

The phrase “last injurious exposure” to the hazards of the disease is used in various forms throughout KRS 342.316, e.g., KRS 342.316(1)(a), (1)(b), (3), (4), (7), and (13). KRS 342.620(4) states that “ ‘injurious exposure’ as used in KRS 342.316 shall mean that exposure to occupational hazard which would, independently of any other cause whatsoever, produce or cause the disease for which claim is made.”

Therefore, the basic question in the case at bar is whether the exposure Blake received while employed at Wesken Wood would have produced or caused his disease in and of itself regardless of any other exposure.

The basis of Blake’s claim against Wesken Wood is an exposure to heavy sawdust while performing his work. Blake worked primarily as an off-bearer, that is, he loaded wood for cutting and unloaded boards after they were cut. Blake testified that the sawmill was quite dusty. Blake did not elaborate as he was unable to speak at the hearing before the Board due to a recent throat operation. His attorney read questions and answers prepared in advance and Blake confirmed the answers by nodding his head.

A case somewhat analogous to the instant action is Broadway Rubber Company v. Cecil,

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Related

Milligan v. Schenley Distillers, Inc.
584 S.W.2d 751 (Court of Appeals of Kentucky, 1979)
Wolf Creek Collieries v. Crum
673 S.W.2d 735 (Court of Appeals of Kentucky, 1984)
BOARD OF ADJUST. OF CITY OF RICHMOND v. Flood
581 S.W.2d 1 (Kentucky Supreme Court, 1978)
Yocom v. Milish
497 S.W.2d 702 (Court of Appeals of Kentucky, 1973)
Broadway Rubber Co. v. Cecil
553 S.W.2d 697 (Court of Appeals of Kentucky, 1977)
Compton v. American Commercial Barge Line Co.
664 S.W.2d 950 (Court of Appeals of Kentucky, 1984)
Holbert v. Wickes Lumber Supply
683 S.W.2d 946 (Court of Appeals of Kentucky, 1984)
General Refractories Co. v. Miller
720 S.W.2d 736 (Court of Appeals of Kentucky, 1986)

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Bluebook (online)
734 S.W.2d 494, 1987 Ky. App. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-blake-kyctapp-1987.