Opinion
No. 2005-CA-000350-WC.
July 8, 2005.
Petition for Review of a Decision of the Workers' Compensation Board, Action No. WC-02-91930.
Robert M. Lindsay, Segal, Isenberg, Sales, Steward Cutler, Louisville, Kentucky, Brief for Appellant.
Judson F. Devlin, Fulton Devlin, Louisville, Kentucky, Brief for Appellee, General Electric Company.
Before: MINTON, SCHRODER, and TAYLOR, Judges.
OPINION AND ORDER DISMISSING
Appellant, by counsel, has responded to this Court's order requiring her to show cause why this appeal should not be dismissed for failure to designate the Workers' Compensation Board as an appellee. Having considered appellant's response, the Court has determined that good cause has not been shown and that this appeal must be dismissed for failure to name the Board, which is an indispensable party to the appeal.
Appellee, General Electric Company, also responded and stated its lack of objection to amending the petition for review to add the Workers' Compensation Board as an appellee.
In her response, appellant contends that, pursuant to the statute that was in effect before the 1992 amendment creating the position of Administrative Law Judge, it was a requirement to join the Workers' Compensation Board as a party to an appeal. However, she adds, "the requirement that the Workers' Compensation Board be named as a party to appeal was omitted upon the creation of the ALJ positions" and the reported cases that require the joinder of the Board are based on statutes which existed prior to 1990. She cites Stahl v. Panarama Rest Care, 788 S.W.2d 276 (Ky.App. 1990) and Compton v. American Commercial Barge Line Co., 664 S.W.2d 950 (Ky.App. 1984).
An indispensable party has been defined as a party "whose absence prevents the appellate court from granting complete relief among those already parties [to the appeal]." Braden v. Republic-Vanguard Life Ins. Co., 657 S.W.2d 241, 243 (Ky. 1983).See also, Ky. R. Civ. P. (CR) 19.02. This Court is of the opinion that, in accordance with that definition, the Workers' Compensation Board is an indispensable party to a petition for review. First, we note that CR 76.25(4)(a) specifically requires the designation of the Board as a party. Next, even though the matter has yet to be addressed in a reported decision, there is other available law that provides us with guidance. When this Court rendered Milligan v. Schenley Distillers, Inc., 584 S.W.2d 751 (Ky.App. 1979), Kentucky Revised Statutes (KRS) 342.285(1), which controlled appeals from the Workers' Compensation Board to a circuit court, required naming the Board as a party while no similar statutory provision required naming the Board on appeal to this Court. Nevertheless, the Court held the Board to be indispensable to an appeal to this Court based on its determination that, in many cases, an Opinion from this Court may require the Board to take certain action. However, without joining it as a party to an appeal, it would not be required to comply with the court's directions.
Based on the same rationale, the Personnel Board and the Board of Claims have been held to be indispensable parties to appeals to this Court. In Hammond v. Dept. for Human Resources, 652 S.W.2d 91 (Ky.App. 1983), appellant contended that the Personnel Board was not necessary to the appeal. In support of her argument she advanced that, while the relevant statute mandated that the Board be made a party to an appeal to circuit court, there was no similar provision for an appeal from circuit court to this Court. In rejecting the argument, the Court then noted that the Workers' Compensation Board has been held to be a necessary party on appeal to this Court even though the relevant statute does not require it either, again for the same reason, i.e., that the Board may be directed to take further action. Id. at 92.
In Smith v. Commonwealth, Dept. of Justice, 686 S.W.2d 831 (Ky.App. 1985), this Court held that the Board of Claims was an indispensable party to an appeal to this Court even though not required by statute to be joined as a party, again because the Court might require the Board to take further action and, therefore, it must be made a party in order to have a duty to conform to the Court's direction. In that case too, similarity with the requirement to name the Workers' Compensation Board on appeal was noted. Id. at 832.
In J.T. Nelson Co., Inc. v. Comstock, 636 S.W.2d 896 (Ky.App. 1982), this Court held that the Kentucky Unemployment Insurance Commission was not a necessary party to an appeal to this Court because the applicable statute specifically mandates the Commission to enter an order in accordance with the Court's final determination. By comparison, the Court noted that KRS Chapter 342 did not include a similar mandate and, as a consequence, unless the Workers' Compensation Board is joined as a party, there is "no duty upon the Board to conform to the edicts of the judiciary." Id. at 900.
We are of the opinion that the principle articulated in those cases is sound and that it provides the rationale for the conclusion that the Workers' Compensation Board is an indispensable party on an appeal to this Court. KRS 342.290 does not expressly mandate the Workers' Compensation Board "to conform to the edicts of the judiciary." Therefore, we now hold that the Board is an indispensable party because it may be required to take further action, such as, for example, be directed to set aside its decision and to order the reinstatement of an Administrative Law Judge award, but that its compliance may be compelled only if it is brought within this Court's jurisdiction. In sum, we believe that the reason why the Board is an indispensable party now is the same as it was when Milligan was rendered. Appellant has not offered any argument that would support a conclusion other than the one we now reach.
Based on the foregoing, it is hereby ORDERED, on the Court's own motion, that Appeal No. 2005-CA-000350-WC be DISMISSED.
ALL CONCUR.