St. Joseph Hospital v. Frye, et al, No. 2011-CA-001797-WC (Ky. App. 2012): KRS 342.270 (1) does not apply and, therefore, a claimant is not required to join all causes of action against a named employer if a subsequent injury occurs after the hearing in the original claim has taken place.
In Frye, a case to be published, the Kentucky Court of Appeals confronted KRS 342.270 (1) which states in pertinent part that:
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 accrued causes of action will result in such claims being barred under this chapter as waived by the employee.
In Frye plaintiff had filed a claim for an injury occurring in 2008. That claim was completely litigated and a final hearing took place on April 9, 2009. However, on April 23, 2009, plaintiff suffered an additional work-related injury with the same employer. After the original claim on the 2008 injury had been decided by the ALJ, she filed a new claim for benefits arising from the 2009 injury. The ALJ found that the plaintiff should have merged the second injury with the first and, therefore, dismissed her claim for benefits arising from the second injury. The Workers’ Compensation Board reversed the ALJ relying on the case of T.J. Maxx v. Blagg, 274 S.W.3d 436 (Ky. 2008).
The Court of Appeals affirmed the Workers’ Compensation Board, agreeing with the Board that there are no regulations governing the reopening of a case after a hearing has been concluded, and a case that has been heard and concluded is not considered to be “pending” within the meaning of KRS 342.270.
COMMENT: This is an issue of first impression in the Commonwealth and it is likely the correct decision. Workers’ compensations litigants now have a clear definition for what “pendency” means under KRS 342.270 (1) and the decision may prove helpful and applicable to other issues that might arise regarding the development of proof after a final hearing has taken place.