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                                                RENDERED: AUGUST 20, 2015
                                                      NOT TO BE PUBLISHED

                   uprrtur CCourf of
                              2015-SC-000022-WC
                                                     DATEct-w-Iss
JEFFERY A. ROBERTS                                                    APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000793-WC
                  WORKERS' COMPENSATION NO. 12-80340



LAURIE STICKLEN, INDIVIDUALLY AS THE
SURVIVING SPOUSE; LAURIE STICKLEN,
AS ADMINISTRATRIX OF THE ESTATE OF
JAMES STICKLEN; LAURIE STICKLEN, AS
THE NATURAL GUARDIAN FOR THE MINOR
CHILD, ANDREW STICKLEN; MARY STICKLEN;
EMILY STICKLEN; CITY OF ALEXANDRIA;
HONORABLE THOMAS G. POLITES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                          APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Jeffery A. Roberts, appeals a Court of Appeals decision which

upheld the limiting of his attorney fee due to the statutory cap provided in KRS

342.320(2) for an original claim. Roberts argues that since he represented five

plaintiffs in this workers' compensation matter involving the death of James

Sticklen (the Estate of James Sticklen; his wife Laurie Sticklen; and his

children Mary Sticklen; Emily Sticklen; and Andrew Sticklen), he actually was
the attorney in five original claims, and thus may receive attorney fees from

each party. For the reasons set forth below, we affirm the Court of Appeals.

      James Sticklen was a police officer for the City of Alexandria when he

collapsed while on duty. He later died of a pulmonary embolism, caused by his

being kicked in the leg by a student when he was assigned to work as a school

resource officer. Sticklen's widow, Laurie, attempted to negotiate, pro se, a

settlement with the City of Alexandria's workers' compensation carrier to no

avail. She then filed a Form 101 on behalf of her deceased husband. After

filing the Form 101, Laurie Sticklen contacted Roberts and he agreed to

represent all of the plaintiffs. Because James Sticklen was deceased and could

not pursue a claim, Hammons v. Tremco, Inc., 887 S.W.2d 336 (Ky. 1994),

Roberts subsequently amended the Form 101 to include claims for all of the

plaintiffs. Roberts subsequently established that James Sticklen's death was

work-related and that the plaintiffs were entitled to benefits.

      The parties entered into an Agreement as to Compensation and Order

Approving Settlement. Pursuant to the settlement, the Estate was to receive a

lump sum amount of $70,916.46. Laurie Sticklen was to receive weekly

payments which would amount to a total of $71,985.87. Mary Sticklen would

receive weekly payments totaling $8,662.80; Emily Sticklen would receive

weekly payments totaling $23,310.91; and Andrew Sticklen would ultimately

receive a total of $37,665.60. The settlement amount received by each plaintiff

was governed by KRS 342.750.




                                          2
      Roberts filed a motion for approval of attorney fees seeking payment from

each individual party based on the percentages set forth in KRS 342.320.

Thus, Roberts sought a fee of $8,295.82 from the Estate of James Sticklen;

$8,349.29 from Laurie Sticklen; $1,732.56 from Mary Sticklen; $4,662.17 from

Emily Sticklen; and $6,633.28 from Andrew Sticklen. The fee Roberts

requested totaled $29,673.12, which would exceed the attorney fee cap for an

original claim pursuant to KRS 342.320(2).

      While the ALJ was favorably impressed with Roberts's work, he held that

the award received by the plaintiffs originated from one original claim. Thus,

the Administrative Law Judge ("ALJ") ruled on Roberts's motion and awarded

him attorney fees of $12,000 based on the cap in KRS 342.320(2). The ALJ

found:

      that there was only one original claim in this matter, that being the
      unfortunate fatal injury suffered by James Sticklen and therefore
      counsel is limited to the $12,000 statutory maximum for an
      original claim. In further support of this determination the ALJ
      notes that this claim concerned only one injury, that being the
      fatal embolism suffered by Mr. Sticklen [] and given that injury
      resulted in the death of the claimant, KRS 3424750] provides that
      in such a case benefits can be paid to the estate, the widow, and
      surviving dependent children. As such, all settlement benefits in
      this claim flowed from one single injury and the ALJ believes that
      in such circumstances there is only one original claim and hence
      only one attorney fee is appropriate.

The ALJ distinguished Lamb v. Fuller, 32 S.W.3d 518 (Ky. App. 2000), from the

present matter because, while the attorney in Lamb received fees in excess of

the statutory cap, it was based on the fact that his one client, despite filing a

consolidated claim, had multiple injury dates. In this case, there was one

work-related injury which led to James Sticklen's death from which the


                                          3
benefits for the five plaintiffs stemmed. The Board and Court of Appeals

affirmed and this appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the Court perceives the Board has overlooked or misconstrued

controlling statutes or precedent, or committed an error in assessing the

evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. Keeping these standards in mind,

we affirm the Court of Appeals.

      The sole issue on appeal is whether the five awards obtained for the

plaintiffs arose under a single "original claim" for purposes of the attorney fee

cap in KRS 342.320(2). That statute states in pertinent part:

      In an original claim, attorney's fees for services under this chapter
      on behalf of an employee shall be subject to the following
      maximum limits:
      (a) Twenty percent (20%) of the first twenty-five thousand dollars
      ($25,000) of the award, fifteen percent (15%) of the next ten
      thousand dollars ($10,000), and five percent (5%) of the remainder
      of the award, not to exceed a maximum fee of twelve thousand
      dollars ($12,000). This fee shall be paid by the employee from the
      proceeds of the award or settlement. . .


The term "original claim" is not defined by statute. However, we have

previously held that an original claim is one claim and one work-related injury

                                          4
despite the presence of two defendants.       Curry v. Toyota Motor Mfg. KY, Inc.,   91

S.W.3d 557 (Ky. 2002).

      Roberts argues that we should define "original claim" so that each of the

plaintiffs who received benefits in this matter has an individual original claim.

However, adopting such a definition would go against our statutory scheme.

      KRS 342.750, the statute which governed the distribution of benefits in

this matter, states in pertinent part:

      If the injury causes death, income benefits shall be payable in the
      amount and to or for the benefit of the persons following, subject
      to the maximum limits specified in subsections (3) and (4) of this
      section:

      (1)(b) To the widow or widower, if there is a child or children living
      with the widow or widower, 45 percent of the average weekly wage
      of the deceased, or 40 percent, if such child is not or such children
      are not living with a widow or widower, and in addition thereto, 15
      percent for each child. Where there are more than two (2) such
      children, the indemnity benefits payable on account of such
      children shall be divided among such children, share and share
      alike.

      (6) In addition to other benefits as provided by this chapter, if
      death occurs within four (4) years of the date of injury as a direct
      result of a work-related injury, a lump-sum payment of fifty
      thousand dollars ($50,000) shall be made to the deceased's estate,
      from which the cost of burial and cost of transportation of the body
      to the employee's place of residence shall be paid. . . .

The plain language of KRS 342.750 requires a determination of whether the

employee suffered a work-related injury which ultimately caused his death. If

such an injury occurred, then income benefits are apportioned to the survivors

and the estate according to the statutory scheme. Thus, as held by the ALJ,

this matter constitutes an original claim despite the presence of five plaintiffs

because all settlement benefits flowed from the single work-related injury to


                                          5
James Sticklen. Roberts only had to show the existence of one work-related

injury and the effects from that injury. Finding this matter constitutes an

original claim is consistent with the intent behind KRS 342.320 and KRS

342.750 and our holding in Curry, 91 S.W.3d 557.

      Roberts argues that Lamb, 32 S.W.3d 518, should influence our decision

because in that case, the attorney was found to be entitled to attorney fees in

excess of the cap for work performed for one client. However, we decline to

decide this matter in line with Lamb's reasoning, because the consolidated

claim in Lamb included multiple dates where work-related injuries occurred.

Thus, the attorney in that matter had to prove the existence of multiple work-

related incidents. In this matter, James StiCklen only suffered one work-

related injury which led to his death and Lamb is therefore distinguishable.

      Roberts also cites to Hammons, 887 S.W.2d 336, where this Court held

that when an employee dies during the pendency of his workers' compensation

claim, the personal representative of the estate and each of his dependents

must assert their right to benefits within a certain time under CR 25.01 and

KRS 395.278. Because the action must be revived by each of the parties before

they may receive benefits, Roberts argues that five separate original claims

must exist. However, while Hammons does create additional work for

attorneys, the facts in that case are distinguishable from the facts in this

matter. Specifically, James Sticklen died prior to the filing of a workers'

compensation claim and revival was not required. Hammons is not persuasive.




                                         6
      For the above stated reasons we affirm the decision of the Court of

Appeals.

      All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Noble, and

Venters, JJ., concur. Keller, J., concurs by separate opinion.

      KELLER, J. CONCURRING: I concur with the result of the majority

opinion. However, I write separately to address an issue raised in the amicus

brief. As noted in that brief, the interests of the surviving spouse and

dependent children of the decedant may not always be aligned. That does not

appear to be the case here; however, should that occur, one attorney

representing bOth the surviving spouse and the children would present

significant ethical problems. Therefore, I anticipate that separate counsel

would and should be required and nothing in this opinion forecloses such

counsel from seeking separate attorney fees.




                                         7
COUNSEL FOR APPELLANT,
JEFFERY A. ROBERTS:

Jeffery Roberts


COUNSEL FOR APPELLEE:
LAURIE STICKLEN, INDIVIDUALLY AS THE
SURVIVING SPOUSE; LAURIE STICKLEN,
AS ADMINISTRATRIX OF THE ESTATE OF
JAMES STICKLEN; LAURIE STICKLEN, AS
THE NATURAL GUARDIAN FOR THE MINOR
CHILD, ANDREW STICKLEN

Laurie Sticklen, pro se


COUNSEL FOR APPELLEE,
MARY STICKLEN:

Mary Sticklen, pro se


COUNSEL FOR APPELLEE,
EMILY STICKLEN:

Emily Sticklen, pro se


COUNSEL FOR APPELLEE,
CITY OF ALEXANDRIA:

Denis S. Kline


COUNSEL FOR AMICUS CURIAE,
KENTUCKY CHAPTER OF AMERICAN FEDERATION
OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS (KENTUCKY AFL-CIO):

Eric M. Lamb
