 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ridge v. VMV Enterprises9/6/2002
TO BE PUBLISHED
OPINION AFFIRMING
Thomas Ridge petitions for review from an opinion and order of the Workers' Compensation Board (Board) which upheld the decision of the Administrative Law Judge (ALJ) dismissing Ridge's claim for a back injury because Ridge failed to join his back injury claim when he filed his knee injury claim. While apparently conceding that KRS 342.270(1) required joinder of the claims, Ridge contends that the employer and its insurance carrier waived the right to assert KRS 342.270(1) as a defense and that the employer was estopped from asserting the defense. We agree with the Board and the ALJ that a letter written before the filing of the knee injury claim would not waive the joinder requirement nor estop the employer from asserting said defense. Hence, we affirm.
On July 3, 1998, while employed by VMV Enterprises, Ridge sustained a work-related injury to his left knee. Following the knee injury, Ridge returned to light-duty employment. On April 13, 1999, while still on light duty, Ridge sustained a second work-related injury to his lower back. On November 3, 1999, the workers' compensation carrier sent a letter to Ridge's attorney requesting the knee claim be settled and afterwards the parties concentrate on the back claim.
On April 19, 2000, Ridge filed a workers' compensation claim seeking benefits for the knee injury without joining the back injury. The claim relating to the knee injury was settled by way of agreement on August 20, 2000.
Following the settlement of the knee injury claim, on February 26, 2001, Ridge filed a workers' compensation claim seeking benefits for his back injury. On September 13, 2001, the ALJ entered an order dismissing the back injury claim on the basis that the claim violated the jurisdictional provision of KRS 342.270(1) requiring that all causes of action against an employer must be joined, or else the unjoined claims are barred. On February 6, 2002, the Board entered an order affirming the decision of the ALJ. This petition for review followed.
Ridge appears to concede that KRS 342.270(1) applies to his claims; however, he asserts that the case should be remanded to the ALJ for additional review and findings concerning his allegation that VMV and its insurance carrier are estopped from relying upon KRS 342.270(1) because they initiated and agreed to the bifurcation of the knee injury from the back injury claim.
KRS 342.270(1) provides, in relevant part, as follows:
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.
Both the requirement that all claims against an employer be joined and the provision that failure to do so will result in waiver of the claim are couched in clear, plain, mandatory language. There is no equivocation or lack of clarity in the wording. The meaning is simply that all claims must be joined, and the failure to do so will bar any claims not joined. There is no room for interpretation here. Moreover, KRS 446.080(4) states that all words shall be construed "according to the common and approved usage of language." "Shall" means shall, and "will" means will. Bowen v. Commonwealth ex rel. Stidham, Ky., 887 S.W.2d 350, 352 (1994).
The only viable interpretation of KRS 342.270(1) is that in order to preserve his back injury claim, Ridge was required to join the claim to the knee injury claim. Having failed t
Page 1 2 3 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|