Uninsured Employers Fund v. Jose Acahua

RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED

¹'uprtmt @:nurf nf·~tnfutkJ! 2016-SC-000252-:WC

·UNINSURED EMPLOYERS FUND APPELLANT

ON APPEAL FROl\II COURT OF ,APPEALS· CASE-NO. 2015~CA-000993-WC v. WOR;KERS' COMPENSATION BOARD ·NO. 13-WC-00273

JOSE ACAHUA; LUIS LO_PEZ;.. . . APPELLEES. ISAIAS SILVA-LAMAS; HON. THOMAS G .. POLITES, ADMINISTRATIVE LAW JUDGE; AND WORKERS'.COMPENSA'l'ION BOARD

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

An Administrative Law Judge {AW) found thatlsaias Silva-Lamas oecame permanently and totally disableq as a ~esult of a work-related injury that he suffered while employed by Luis Lopez, a:r:1 uninsured employer: Those

findings are not disputed. However, the Uninsured Employers Fund (UEF) . . contests whether Lopez wa~ properly notified of Silva-Lamas's claim. The AW,

the Woi:kers' Compensation Board (the Board),. and the Court of Appeals held that notice was properly given. · We agree and. affirm.

I. BACKGROUND.

On April 11, 2012, Silva-:Lamas, ·who was a month away from his 29th.

birthday, was working as a brick mason's helper when he fell from a ladder and . suffered multiple cervical fractures. As a result, Silva-Lamas has no use of his

legs; very limited use of his arms, and little to no use of his hands. In his · il}itial application for resolution of injury claim, Silva-Lamas named Jose . Acahua as his employer. Acahua did not have any workers' compensation

\ insurance; therefore, the Chief ALJ joined the UEF. as a party.

During the course of discovery, the parties determined that, at the time

of his injury, Silva-Lamas was working on a house owned by Barry Chaney._

Chaney and his wife decided to put a "brick and wood" porch on the back of

their house. Chaney hired a contraCtor named Timberwolf to perform the

framing and carpentry, and he intended to hire his brother-in-law, Stonie

Newsome, to perform the masonry work. However, by the time Timberwolf

completed its part of the construction, Newsome was too busy with other . projects to do the masonry work. Therefore, Newsome had one of his

employees, Jose Acahua, contact Luis Lopez to see if Lopez could do·the work..

Following some .negotiations, Lopez agreed to do the work, and he ~nlisted

Silva-Lamas and two others to assist him. Ac~ua did not perform any work

on the job but acted as ·an interpreter among Lopez, his helpers, and Chaney, and Acahua apparently handled some of the monetary transactions between Chaney and Lopez, who acted as the "boss" on the job.

. Based on the preceding evidence, Silva-Lamas moved to join Newsome . . .

and Lopez as defendant/employers. The AW denied Silva-Lamas's.motion as to Newsome but granted it as to Lopez and sent a copy of the joinder order to Lopez by first-:class mail. Following the AW'sjoinder order, Silva-Lamas filed a second Application for Resolution of Injury Claim, naming Lopez as his ·employer. ·The Commissione~ of the Department of Workers' Cfaims (the DWC), pursuant to 803 KAR 25:010 Section 3, sent acopy of that application to Lopez · via first class mail. The postal service returne~ that mailing stamped · "undeliverable." Because it appeared that Lopez nev~r received notice of the claim, the UEF conte~ted the DWC's Jurisdiction to proceed against him, and by ~xtension, against the UEF. The AW rejected the UEF's ar:gument, finding that, becaus~ Silva-Lamas had done all that was required of him tO file his· claim, the DWC had jurisdiction over Lopez.

The UEF. appealed to the Board,. which affirmed, agreeing with ·the AW . . \ . .. .

that Silva-L.amas acted appropriately pursuant to 803 KAR 25:010 in filing his . . claim. The Board also found that the DWC acted appropriately pursuant·to the

regufation by. serving the. application:on Lopez via.first class mail. The UEF then sought review by.the Court of Appeals'- which affirmed.

As it did below,. the UEF argues that, pursuant . to Kentucky Revised

Statute (KRS) 342.135, the commissioner of the DWC was required to serve , notice of Silva-Lamas's claim by registered njaiL According to the UEF, the commissioner's failure to do so deprived the AW of jurisdiction .over Lopez and, by extension, over the UEF. For the reasoris set forth below, we d:lsagree and

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affirm, albeit for different reasons than those expressed by the Board and the Court of Appeals.

II. STANDARD OF REVIEW.

As a general rule, we grant deference to the findings of an AW; however; when the issue is purely a question of law, as this is, we review the matter de novo. See Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky. 2013).

III. ANALYSIS.

KRS 342.270(1) states that, if the parties fail to reach an agreement as to · compensation, "either party may make written application .for resolution of · claim." 803 KAR 25:010 Section 3(2) provided at the time that the application had to be "filed [with the DWC] with sufficient copies for service on all parties."! Once an application is filed, the co~missioner of the DWC is required to "issue notice of the filing to all parties and" to "promptly assign the claim to an administrative law judge." KRS 342.270(2). Pursuant to 803 KAR 25:010 Section 3(2), the commissioner then serves the application "by first class mail."

. As the UEF notes, the service provision of the preceding regulation app~ars to be at odds with KRS 342.135, which states in pertinent part that:

Any notice required to be given under this chapter shall be considered properly given and served when deposited in the mail in a registered letter or package properly stamped and addressed t~ the person to whorri notice is to be· given at his last known address and in time to reach him in due· time to act thereon. Notice may· also be given and served like notices in civil actions.

Th~ UEF argues that KRS 342.135 requires that notice of a claim l;>e served on the employer by registered mail, and that the DWC dic:l not have jurisdiction over Lopez because 't11e Commissioner failed to serve Lopez by registered mail. However, the UEF's interpretatfon of KRS 342.135 is faulty for two reasons;·

. First, the first sentence of KRS 342.135 states that n.otice given or served

by registered mail is deemed . .' adequate. That sentence does not state it is

mandatory for notice to be given or served by registered mail or that registered mail is the only method by which notice may be given or served. If the General Assembly had wanted registered mail to be the only acceptable method to give or serve notice, it would have made that method mandatory; which leads us to the second reason the UEF's interpretation is faulty.

We presume that the.General Assembly intended for .the statute to be construed as a whole, and for all of its parts to have meaning. Hall v.

Hospitality Resources, Inc., 276 S.W.3d 775 (Ky.2008); Letl!is v. Jackson Energy. Cooperative Corporation, 189 S.W.3d 87 (Ky.2005) .. Looking at KRS 342.135 as a whole, it is clear that the General Assembly intended to provide two methods for notices to be given or served. The first.is by registered mail, the second is pursuant to whatever method the civil rules deem adequate.· We cannot, by adopting the UEF's interpretation, simply negate this second. method by which notice may be given or served.

The UEF argues that this Court's opinion in Nat. Resources.& Environmental Protection Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438 (Ky.

1987) is on "all fours" with this matter. The UEF is m~staken. In Pinnacle, the Cabinet, pursuant to a regula~ion, served Pinnade's attorney with the hearing officer's final report. Id.. Pinnacle contested the adequacy of that service, . noting that the relevant statute required. service on the party, not on its attorney. Id. The Cabinet argued that service was adequate because it complied with the regulation, which required· service on a represented party's attorney rather than on the party. Id.· The Court hel~ that service by the · Cabinet was not adequate because the statute, not the regulation, controlled. Id. at 439. Unlike· the statute at issue in Pinnacle, which made servicv on the party mandatory, the statute herein provides that service may be by registered . mail, .or by a method . consistent. with the civil rules.· Therefore, Pinnacle is neither·controlling nor persuasive.

The preceding does not dispose of this issue beca,use we must determine if service was appropriate under the civil rules. Kentucey Rule of Civil Procedure (CR 5.01) provides that "every written notice ... shall be served upon each party except those in default for failure to appear. Parties in default shall be given notice of pleadings asserting new or additional claims for relief against ·them by summons or warning order .... " CR 5.02 provides that, ."whenever ... service is required or permitted to b~ made[,].• .. [s]ervice ... shall be made by ... mailing [the thi?g to be served] to the ... party at the last known address of such person."2 Based on CR 5.0~ and 5.02 the

CR 5.02 has changed. since this litigation. It now states "Service is complete ·2 upon mailing unless the serving party learns or has reason to know that it did not

-Commissioner's mailirJ.g of.notice of Silva-Lamas's claim·to Lopez complied with the service requirements of the Civil-Rules for three reasons.

First, at the time the notice was mailed, Lopez was not.in default and the notice did not contain new or additional claims of reli~f as envis.ioned by the. ·rule. 3 _Seco~d, because CR 5.02 provides no modifier to "mailing," a~y method

· of mailing, includitig first-class, 'is acceptable. 4 Third~ taking the UEF's . . . argument that all notices must be mailed by registered inail to its logical

conclusion, .the following would have to be made .by registered mail: "riotice of the accident," as required by KRS 342.185, "notice of the as~ignment of the claim to an [AW]" as required by KRS 342:212; an employee's wdtten notice of rejection of the Act, as required by KRS 342.395; and notice of cancellation of. insurance coverage as required byKR~f342.340. Requiring those notices. to b~ sent by registered mail would put a substantial financial drain on injured workers and the workers' compensation system because th_e minimum charge

reach the person served." However, that language was not in the Rule at the time of this litigation .. 3 The new or additional claims referred to in CR 5.01 are claims that were not asserted in the initial complaint. In workers' compensation there are no "complaints." Furthermore, even if the application for adjustment of injury claim were deemed to be a complaint, the application filed agaip:st L_opez would have been tantamount to· the initial complamt. · · 4 This is consistent With the majority of references to the provision of notice to ·litigants by a government81 body. CR 76.04 provides_ that notice of entry of judgment shall be made· by mail. CR 73.03 provides that the clerk shall serve notice that an 'appeal has been filed "by mailing a copy." CR 76.36 provides ·that the clerk shall mail· to each respondent notice )that an original proceeding has been filed in ari appellate court.' Fur1;hermore, while references in the Rules to serVice of notice by parties do not specifically state that service is by mail, those rules default to CR 5.02's requirement.·

. . . . for a registered mailing by the United States Post Office starts at $12.20.5

https:/ /ribbs.usps.gov/shipproductsservices/documents/tech_guides/ E;ictraServicesWe binar. pdf.

The UEF also argues that Lopez was entitled to notice of the claim as a matter of due process. Implicit in that argument is the notion that, if Lopez or any other employer simply cannot be served with notice of a claim, no liability can attach to the UEF. That implication is faulty because KRS 342.630. provides that employers are "mandatorily subject to" the provisiOns of the Act. As noted above, the Act provides that notice may be served pursuant to the Civil Rules, which'do not require that notice must be.received to be effective. Furthermore, KRS 342. 760(4) provides that "[t]he [UEFJ. shall be responsible f?r the payment of compensation when there has been default in the payment of compensation due to the failure of an employer to secure payment of

compensation as provided by this chapter[,]" i.e. by obtaining insurance or self- . !

insuring. The liability imposed on the UEF by this statutory provision is contingent on the employer's status as insured, not on the employer's receipt of notice of the claim.

Finally, we note that service by registered mail does ·not guarantee that the addressee will receive the mailed documents. At best, registered mail guarantees that the post office attempted to make delivery and provides for a return if delivery was not possible. That is exactly what occurred with the

s While such economic concerns are best left to the General Assembly, we note this cost differential because the purpose of registered mail is to provide insurance for what is.being mailed. It is not to ensure delivery. ·

Commissiorier~s .first-class mailing of th.~ notice herein. Therefore, whether the. Commissioner had. mailed the notice of claim by registered mail or by the method provided· for in the reguiation, the result would have been the same.

IV.. CONCLUSION.

For the foregoing . reasons, the Court . of Appeals . is affirmed. . . Minton, C.J.; Cunningham, Hughes, Keller and Venters~ JJ., concur.

Wright, J., dissents .by separate opinion. VanMeter, . ' J., not sitting.

WRIGHT, J., DISSENTING: I respectfully dissent from the majority

opinion affirming the Court ofAppeals. I would, instead, reverse the Court of . . Appeals, vacate the AW'~ order,' and remand the case, as .the DWC failed to

. properly notify Lopez.

KRS 342: 135 says that "any.notice" required under the Kentucky

Workers' Compensation Act is "considered properly given .and served" when . . . . mailed via "registered letter or package" to the recipient's last known address.·

.In· this case, the Department of Workers' Claims sent Lopez notice of the claim

. via first-class mail to, his· last" known I address, which was returned stamped .

"undeliverable." The Department's first-class mailing was insufficient to allow

the absent employer (Lopez) to be ~onsidered constructively noticed of ' . documents initiating the claim against him. Fur.ther, it is undisputed .that

. Lopez never received actual notice of. Silva-Lariias's claim. Therefore, there was no jurisdictfon over Lopez.

The. UEF claimed (and I agree) that the first-class maillng did not comply with KRS 34'.:2.135, whiCh governs the sending of notices required under

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Chapter 342 and provides that such notices are "consi~ered properly given ~nd served" if sent by "registered" mail. Because the notice here was sent by first-class and not regis~ered mail, 6 it was ineffective to seI"Ve as constructive· notice

to Lopez under the Act .. .Therefore, . the AW's ordering Lopez liable for Silva-

Lamas's compensation cannot stand, because due process requires that the employer be given notice of a· claim before he can be made to pay it.

At its core, the statutory-interpretation question before us is about .procedural due process-to wit, how much proces~· is due employers under our Workers' Compensation Act, KRS Chapter 342 (the Act).

Parties that stand to be affected by an administrative ordei: are entitled to . procedural due process. Am. Beauty Homes Corp. v. Louisville & Jefferson Cty. Planning & Zoning Comm'n, 379 S.W~2d 450, 456 (Ky. 1964). At the most fundamental level, this requires reasonable notice and· an opportunity to be heard. Bd. of Levee Comm'rs v. Johnson, 199 S.W. 8, 12 (Ky. 1917). Employers, as real parties in interest, are thus entitled to be given notice of their employees' work-injury claims and afforded an opportunity to contest

6 According to the United States Postal S.erVice website, first-class (or regular) mail is "the least expensive, ·most immediate option for mailing postcards, letters, and large envelopes 13 ounces or less." What is First-Class Mail?, USPS.com, faq.usps.com/?articleld=218984 (last accessed May 10, 2017) ("First-Class mail over 13 ounces is called Priority Mail."). Registered mail, on the other hand, is "the most secure USPS mail service (protected by safes, cage_s, sealed containers, locks and keys)." What is Registered Mail?, USPS.com, http://faq.usp.s.com/?articleld=220838 (last accessed May 10, 2017). It uses a "system of receipts .... to .monitor the mail from the point of acceptance to delivery." Id. Its "delivery status or attempted delivery status" is . available to the sender, and a signature is required upon delivery. Id. See also registered mail; Black's Law Dictionary (10th ed. 2014) ("Mail that the. U.S. Postal Service records at the time of mailing and at each poin,t q_n its route so as to guarantee · safe delivery."). ·

them. Realty Improvement Co. v. Raley, 194 S.W.3d 81~, 822-23 (Ky. 2006). I::Iere, the issue is the first requirement: notice.

The Actexpressly addresses the due-process notice requirement First, it .puts the burden on the DWC ·commissioner to give notice to. all parties that an application for resoluti.on of claim has been filed. KRS 342.270(2). Although both employees and employers are empowered to file such applications if the parties can't come to an agreement outside litigation, see KRS 342.270(i), the typical sce~ario involves an employee filing a claim alleging a work-related injury, which the employer then has 45 days to answer, see KRS 342.270(2). If the employer does not file ari answer, "all allegations of the application shall be deemed admittc;!d.~ 803 KAR 25:010 § 7(2)(b).

Second; the Act dictatesin clear terms how the KRS 342.270(2) notice (or any other notice require_d unqer KRS Chapter 3427) is to be given: "in a registered letter or package properly stamped and addressed. t6 the person to whom notice is to be give!1 at his last known acidress and in time to reach him in due time to act thereon." KRS 342.13S. It also allows for riotices to "be given and served like notices in civil litigation." Id . . (As discussed in more detail below.) Notices that comply with these directives, the statute ad~s, . "shall be ·considered properly.given and served when deposited in the mail." Id.

1 The Court of Appeals read KRS 342.135 as applying only to "pre-claim notice." _That misreading helps explain that court's mistaken conclusion that the administrative regulation directing the DWC to issue notices by first-class mail does not conflict with KRS 342.135's registered-mail requirement. We discuss that · regulation and conflict in more detail below. ·

Thus, KRS 342.135~ by its terms, has two distinct purposes: (1) to define how notice is given and served-.by "registered" mailing to the recipient's last known address, or else in the same 'manner as irt civil actions; and (2) to . stipulate that compliant notices are "considered properly given and served". when mailed-that is, to provide for effective constructive notice. These . purposes are intended· to ensure that parties to be affected by a workers' compensation order receive the process that they are due.

The question here is whether the commissioner's first-class mailing was ·sufficient to satisfy the Act's due-proces~ requirements so as to subject the absent employer, Luis Lopez, to the AW's order against him. The majority holds that it was-but, I disagree.

Simply put, Lopez received neither actual nor constructive notice of Silva-Lamas's claim .. There is no evidence that Lopez was ever actually notified ·

of the claim-the mailing, after all, was returned undelivered. More . . . . importantly, the DWC's mailing did not comply with KR~ 342.13'5-it was sent

via first-class and not registered mail. Because the attempted notice was not serit by registered mail, the statute's terms do not allow it to .be "considered properly given and served." In other words, the :qrst-class mailing did not provide constructive notice of the claim under the Act .

. First, I note that KRS 342.270 governs the filing of. claims and the DWC .

commissioner's obligations when a claim is filed. But it says only that "the commissioner shall issue notice of the [application-for-resolutiOn-of-claim] ·filing to ali parties." KRS 342.270(2). Although it says nothing in express

terms about how tha~ is to be given,. it implicitly does.so by calling it "notiCe"-· KRS 342.135., again, lays·out how "any notice" is.given .. The statute then conclude~ by_ directing the. commissioner to "promulgate adrninistrative regulations establishing pro.cedures for the resolution of claims."

KRS 342.270,(3)'. ' I,

. E;cercising that authority, the commissioner crafted the regulation that

·was . relied on below to sign off.on . the. notice given here, 803 . KAR 25:010 .

section 3(2). 8 . The regulation begins by directing the filing party to file its application "with sufficient copies for service on all .parties." Id.· It then directs

. the. commissioner .· to "make . service by first . . class mail." Id. Therefore, the .

. B~ard and Court ofAppe~s reasoned that the DWC's first-class mailing \Vas an ·. . . . . .

. effective'notice because this regulation required that it be sent in that manner.

Regulations, however, are subordinate to statutes-where their directives conflict, the statµte wins. To the extent.the co.mi:nissioner's regulation directs

KRS 342.270(2) notices to be sent by first-class m~il, it is in direct conflict . . . . with, and invruidated by, the statutory registered-mail requirement. Nothing in

the language of KRS 342.135 suggests t_hat it applies to anything less than any

and _every notice that is required under Chapter 34·2. · By its terms, it defines " .

how "any notice" is givell:. and served-that doubtlessly indudes the. initiating . document that provides notice of a c::;laim filing that the commissioner must

. a The Board and Court of Appeals relied on the language in what was then section 3(2), but the regulation has since been amended. effective" Octohei:- 2016. Section 5(3)(b) now contains the language at issue, ~hich-is virtually unchanged. We ·use . section. 3(2) in our .discussion, however, to. be consjstent with . those . below..

give under KRS 342.270(2). "Administrative agencies are bound by the procedural dictates of the statutes ayd are not empowered to adopt regulations .in conflict with plai:r~. statutory provisions." Natural Res. & Envtl Prot. Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438, 439 (Ky~ 1987). Because 803 KAR

25:010 section 3(2) purports to require the comrnissionerto send notices . . in a

manner that differs from and.directly conflicts with what KRS 342.135 requires, it has no force and c·annot validate the noncompliant notice that was attempted here.

The majority reasons that KRS 342.135 does not require that notice be . given or served by registered mail, but that such notice is merely "deemed adequate:" ltgoes on to assert that there are two methods for giving notice: first, by registered mail; or, second, by any means notices may be served in civil actions. ·

·This Court had previously held in Akers v. Pike County Board of · Education, 171 S.W.3d 740 (Ky. 2005), that the commissioner was not subject to KRS 342.135's registered-mail requirement, albeit in a different context concerning a different statutory obligation. At issue iri Akers was the commissioner's obligation under KRS 342.040(1) to "in writing, advise the employee ... of right [sic] to prosecute a ·claim under [the Act]" (which arises after the employer or its insurance carrier notifies the commissioner that it has terminated tempora:ry-total-disabilicy (TTD) income-benefit payments).· In .Akers, after the employer ceased paying TTD, the commissioner sent the employee the required so-called "statute letter"-advising him of his right to file

a claim under the Act within two years after the_TID-termination date-by first-class mail. Jd, at _741. If.is impossible to consider this a document

initiating . a claim. The employee would be aware that he should . ~ . inquire what

to do after the payments. stopped. When the employee filed his claim more . .than four years later, he argued thatif should not be time-barred because, ~ong other things, the commissioner's letter, which he never received, failed to comply with KRS 342.135's registered-mail requirement. Id. This Court rejected that argument, hoiding thatKRS 342.135 does not apply to the commissioner's obligation under KRS 342.040(1_). Id. at _742.

"But what distinguishes Akers from this case is that the issue there

tµrned on_the Court's recognizing that "notice," as useci in KRS 342.135, is a . . . legal term of art; whi~h the legislature has employed in some instances and not

others.. Presuming that "the legislature had a reason for its choice of words," id. (citing KRS 446.080(4)), the Court concluded that the choice in KRS 342.040(1) to require only th8:t the commissioner "advise" employees of their right to prosecute a claim under the Act meant that obligation was not subje~t.to the requirements for giving "notice" under KRS 342.135. Id. But ,here, by contrast, the legislature's choice in ~s 342.270(2) was to require that

the commissioner indeed give "notice." I disagree with the majority's . . interpretation.of KRS 342.135. It does disservice to the legislative choice

evident in the drafting of that statute-much as "holding the statute applicable

in Akers . . would have disserved . KRS 342.040{1)?s . choice of words.

Further distinguishing Akers from this case fs t!J.e substantive difference

·between the comi:nissioner.'s obligations under KRS 342.040(1) and . .

KRS 342.270(2). The former is effectively a statutorily required courtesythink: "Just so that you are aware, you have the right to file a claim for benefits under the Act and have two years to do so." That is very different from the . latter: "Be aware that a claim has been.filed against you that might result in an AW ordering you to pay this person a sum of money (and almost certainly. will result in that if you fail to file an answer)." The· primary purpose for the KRS 342.270(2) notice is to ensure that all parties receiv~ due. process; there is no due-process purpose underlying the KRS 342.040(1) obligation. The "notice" requirement in KRS 342.270(2) necessarily contempiates-the due-process procedures contained in KRS 342.135, the "advise" requirement in KRS 342.040(1) does not .

. The focus here should not be on what Silva-Lamas did to comply with the Act's filing requirements. But, because at its core the issue here is about due process, the proper focus is on the absent employer, Lopez, not the employee. The question is not whether Silva-Lamas's actions sufficed to allow his claim to go forward; the question is whether Lopez received suffident notice to permit the A~ to enter an order affecting him. Answering the question presented requires assessing the process Lopez received anc:l ascertaining whether that complied with the statute and, by extension, the requirements of procedural due process.

/ I respectfully dissent from the majoritj's holding that notices may be ·. given "pursuant to whatever method the civil rules deem adequate." That issue · has never been raised, argued, briefed, or considered by any party or tribunal _ irt this case.· This Court :ls ill-suited to address in this appeal the meaning ·of the second sentence in KRS 342.135, and so should not. That is best left to a future case where the issue is properly before us.

As the majc:>rity holds, CR. 5.01 and 5.02 dictate wha.! KRS 342.135's second sentence means. This would seem to allow all "notices" in.civil actions to be effectuated by a mailing of any· sort, and so would control the result here. To arrive at that conclusion, the majority begins by telling us that "CR 5.02 provides that 'whenever .... service is required or permitted to be made . ·... [s]ervice ... shall be made by ... mailing [the thing to be served] to the ... party at the last known address of such person. m Because (;R 5.01 directs that eve:ry "written notice ... shall be served upon each party," the majority concludes that the two rules read together authorize notices in civil actions-and so also "notices" in workers' compensation litigation under KRS 342.135-to be mailed by any method the mailer chooses. If we fill in the gaps, however, it is apparent tP,at CR 5.01 and 5.02 do. not apply here at all.

First, the· majority concludes that KRS 342.270(2)'s "notice" should be considered equivalent to the "written notice" used in CR 5.0L The problem with that construction is that the workers' compensation notice at issue is not a simple notice of filing or deposition or some ot.p.er pleading in the midst of litigation; it is the initiating or original complaint against the employer by the *18 employee claim~ng workers' GOmpensation benefits. Indeed, CR 5.01 applies to

"every pleading subsequent to the original complaint" (Emphasis added.) The . . . . . . . . . . .

notice here was.the document initiating the claim against Lopez and.so is not covered by the rules governing the servicing and filing of pleadings and other papers-CR 5.01, et seq. Instead, our rules governing service of process-.

CR 4.01, 9 et seq.-control how the notice to the employer required under . j . KRS 342.270(2) is considered given as.in civil actions under KRS 342.135.10

The last sentence of CR 5.01 specifically provides that "[p]arties so in default shall b~ ·given notice of pleadings asserting new or additional clairris for relier against them by summons or warning order issued thereon as provided in Rule 4."

The language of CR 5;02 makes it clear that it is inapplicable to the case before us. The relevant portion of that rule reads:

Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, which shall not . include a warning order attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Except as provided in paragraph (2) of this rule,[11] service upon the attorney or upon a party shall be made by delivering a copy to

9 CR 4.01 governs the issuance of summonses "[u]pon the filing of the complaint (or other initiating document)," CR 1-.01(1), and directs the court clerk to mail a copy of the summons and initiating document "in the United States mail as registered mail or certified mail return receipt requested with instructions to the · delivering postal employee to deliver to the addressee only and show the address where delivered and the date of delivery," CR 4.0l(l)(a). . 10 It bears repeating, however, that a well-reasoned, deliberate analysis of what the General Assembly meant by allowing that "[n]otice may also be given and served like notices in civil actions," KRS 342.135, should wait for another day and case when that question is actually before us. 11 CR 5.02(2) governs elections by attorneys and parties to effectuate and receive. service by electronic means. ·

. ,

. the attorney or party or by mailing it to the attorney or party at the . last known address of such person; or, if no address is known, by leaving it with the clerk of the court.

CR5.02(1) (emphasis added), The rule's first Clause unmistakably limits its , ·,

scope:·· it applies only where "service is required.or.permitted to _be made upon . . . . a party represented.by an attorney." Id. Lopez would only have had an

attorney representing him in the claim if he had been served with the initiating

docu_ment and hired an attorney to enter an appearance for him'. Lopez, of

course,_ had no such representation~ That, alone, renders CR 5.02 inapplicable

here. But ther:e's more-even if Lopez had been represented by an attorney so .

· as to bring him within the scope of CR 5.02, the rule goes on to direct that · "service shall be made upon the attorney." Id. Only if it is "ordered by the

court," does the rule then permit service to b~ made upon the party instead of

the attorney. Id. There~ of course, was no such court order directing that.

service be made-upon Lopez rather than his attorney. Again, CR 5.02 has no

role to play here. · , . ! , . , , , Finally, the majority's interpretation of KRS 342. l35's second sentence

would render that provision's first, main sentence meaningle,ss. If the second

sentence .says that . notices . can be sent by any method of mailing, . . then the first ·

sentence's registered-mail directive becomes no directive at &IL · See .generally

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 174-79 (2012) (discussi~g the surplusage canon of statutory

interpretation).

Whatever the second sentence in KRS 342.135 means, it does not mean that the notice mailed to ~opez was effective in serving a document initiating a claim against him. Having said that, I am not blind to the majority's worries about the costs entailed by requiring that every notice, or even just the documents initiating a claim, under Chapter ·342 be sent by registered mail ·versus cheaper alternatives. As discussed above, CR 4.01, et seq., governs the service of a document initiati:µg a claim. After a party has· been served with the initiatirtg document, CR 5.01, et seq., allows for. service of pleadings by other, less expensive methods. While that is a.worthy concern, it has no ·place in this Court's statutory analysis. That is a policy matter reserved to the General Assembly. It is the General Assembly who saw fit to require that notices under

Chapter 342 be sent by the pricier method of registered mail-it is that body ~ .

alone who has the power to change it.

To be certain, I recognize and agree-with the sentiments expressed in the

d¢cisions below that reversing and dismissing Silva-La.rnas's claim for this .\

procedural error-which of course was not his error-would be unfair and serve only to undermine the Act's fundamental compensatory purpose. But I can account for that recognition in crafting a remedy: the proper remedy for the defective notice is to unwind the case, not dismiss it, and allow for the defect to be cured-that is, for Lopez to be given p:roper notice before

adjudicating Silva-Lamas's claim .. . ' · Because the failed notice_ to Lopez was never "considered properly given .

and served" under KRS 342.135, I would vacate the order .arid award and

remand this matter to the AW for further proceedings.· On remand, there . . w_ould be nothing to prevent the commissioner; o~ anyone else for that matter,

. Jrom properly serving notice to Lopez ofSilva-Lainas's· claim. I would-leave it

up to the AW: if the AW were convinc~d that this notice meets. the Act's · . . .. . . -

:requi~erilents, then I would allow him to proceed with adjudicating the claim

against Lopez. I recognize that this result further delays the injured worker's . . receipt of benefits, and so may be unsavory to some-yet it is a result that is

dictated by our statute and the principles. of due. process.

In sum; due process require~ that employers receive notice of thei~ · . . employees' workers' compensation claims. The fanguage of KRS 342.135 is

clear: for "any notice" -required under the Workers' Compensation Act to be "considered properly given and served," it must be sent by registered ·mail or in the sanie manner as civil-action notices; Because the commissioner mailed Lopez the KRS. 342.270(2)-required notice initiating the claim against him by first-class- rather than registered mail, that notice cannot be considered properly given and served. Therefore, I would vacate the AW's order and award and remand this matter for further proceedings.

(

COUNSEL FOR APPELLANT:

Andy Beshear Attorney General of Kentucky

. James Robert Carpenter Assistant Attorney General

COUNSEL FOR APPELLEE, ISAIAS SILVA-LAMAS:

Charles E. Jennings· Joy Buchenberger Jennings Law Offices

Jose Acahua, Pro se Luis Lopez, Pro se

I.

Footnotes

[1] At the time of this litigation, the regulation referred to the commissioner as the "executive director." That has since been amended. Furthermore, in 2017, the regulation was amended to reflect the DWC's use of electronic filing rather than paper filing. . . .