LARRY D. ASHLOCK APPELLANT
COMMONWEALTH OF KENTUCKY, DEPARTMENT OF JUVENILE JUSTICE; CYNTHIA SIPES; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. 2010-WC-96674
BRIEF FOR APPELLANT: Larry D. Ashlock Elizabethtown, Kentucky
BRIEF FOR APPELLEE DEPARTMENT OF JUVENILE JUSTICE K. Lance Lucas Sarah C. Rogers Florence, Kentucky
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND VANMETER, JUDGES.
Larry D. Ashlock petitions for review of an opinion of the Workers' Compensation Board which vacated an opinion and order of the Administrative Law Judge (ALJ) and the Chief Administrative Law Judge (ALJ). The Board held that Ashlock, an attorney, did not have standing to file a motion to reopen under Kentucky Revised Statutes (KRS) 342.125 in order to recover attorney fees because he was never a party to the underlying claim. We affirm.
Cynthia Sipes injured her shoulder during the course of her employment as a youth worker for the Kentucky Department of Juvenile Justice. On February 28, 2011, she hired Ashlock to represent her in a claim for workers' compensation benefits. Sipes and Ashlock entered into a contingency fee agreement which provided that he would be paid for his services pursuant to KRS 342.320(2). That statute provides in relevant part that, in workers' compensation cases, attorney's fees shall be subject to the approval of an administrative law judge, shall be subject to certain maximum limits, and shall be paid by the employee from the proceeds of the award or settlement.
The contract between Sipes and Ashlock also stated that
In the event the client discontinues the services of the attorney prior to the conclusion of the claim, the parties agree that attorney will have a valid lien against any proceeds of the claim for reasonable attorney fees for time incurred working on the claim as well as reimbursement for expenses.
Ashlock properly notified Cannon Cochran Management Services, the third party administrator for the Department of Juvenile Justice, of his representation of Sipes, and requested Sipes's records from the Department of Workers' claims.
At the time Sipes retained Ashlock, she was already receiving temporary total disability (TTD) benefits. On May 16, 2011, Kara Smith, a senior adjuster with Cannon Cochran, sent Sipes a letter informing her that her TTD benefits had been terminated. According to Sipes, she contacted Ashlock for help but he did nothing. Sipes then contacted Smith herself. Smith reinstated the TTD benefits. As a result of his lack of assistance in reinstating her TTD benefits, Sipes claims that she discharged Ashlock by means of a telephone call on May 20, 2011, and a follow-up letter on May 23, 2011.
On July 28, 2011, Ashlock received an offer from Smith to settle Sipes's claim for a complete buyout in the amount of $32, 742.30. He did not contact Sipes, who on the next day contacted Smith to inquire about her TTD benefits, which had stopped again. Smith told her about the settlement proposal that had been sent to Ashlock. When Sipes informed Smith that she had discharged Ashlock as her attorney, Smith told her to forward written documentation of the termination. Sipes immediately sent an email to Ashlock, stating that she had sent him a letter on May 23, 2011, terminating his services. She asked him to fax a letter to Smith to let her know that the representation had ended. Ashlock acknowledged that he received the email, yet on August 3, 2011, he sent a letter to Sipes that stated in part as follows:
Please allow this letter to serve as a follow-up to our recent telephone conversation concerning your claim. As I stated to you, I do not have any letter from you in my file from May 23, 2011 nor was I ever contacted by the insurance carrier until receiving this letter of July 28, 2011 that I have enclosed herewith for your review. I have also enclosed herewith the impairment rating report from Dr. Bonnarens. I am attempting to contact the insurance adjustor, Ms. Kara D. Smith, in an attempt to understand the status of your claim. As soon as I receive that information you and I can discuss any further representation of you in this matter.
On August 4, 2011, Sipes faxed a note to Smith advising her that she was no longer represented by an attorney, and that settlement options could be discussed directly with her. Sipes thereafter entered ...