Vessels by Vessels v. Brown-Forman Distillers Corp., BROWN-FORMAN

• Decision Date: 15 March 1990
• Docket Number: BROWN-FORMAN,Nos. 89-SC-421-,89-SC-479-WC and 89-SC-480-WC,s. 89-SC-421-
• Citation: 793 S.W.2d 795
• Parties: Nellie VESSELS, Deceased, by James VESSELS, next friend of Lisa Ann Vessels, Mark Vessels, Christine Vessels and Timmy Vessels, Appellants and Cross-Appellees, v.DISTILLERS CORPORATION, Appellee and Cross-Appellant, and Workers' Compensation Board, Appellee and Cross-Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 795

793 S.W.2d 795

Nellie VESSELS, Deceased, by James VESSELS, next friend of Lisa Ann Vessels, Mark Vessels, Christine Vessels and Timmy Vessels, Appellants and Cross-Appellees, v. BROWN-FORMAN DISTILLERS CORPORATION, Appellee and Cross-Appellant and Workers' Compensation Board, Appellee and Cross-Appellee.

Nos. 89-SC-421-D, 89-SC-479-WC and 89-SC-480-WC.

Supreme Court of Kentucky.

March 15, 1990.

As Modified on Denial of Rehearing Sept. 6, 1990.

W. David Klingman, Sanford L. Berman, Louisville, for appellants and cross-appellees.

William A. Blodgett, Jr., Woodward, Hobson & Fulton, Louisville, for appellee and cross-appellant.

Glenn L. Schilling, Com'r Dept. of Workers' Claims, Workers' Compensation Bd., Frankfort, for appellee and cross-appellee.

COMBS, Justice.

This novel workers' compensation case is one of first impression. It has spawned three separate proceedings in this Court. The first (89-SC-421-D) is a motion for discretionary review filed by James Vessels, as father and next friend of Lisa Ann Vessels, Mark Vessels, Christine Vessels and Timmy Vessels.

The second (89-SC-479-WC) is an appeal by the Vessels from an opinion of the Court of Appeals which reversed an award of the "new" Workers' Compensation Board rendered October 14, 1988, affirming the "old" Workers' Compensation Board award entered February 22, 1988.

The third (89-SC-480-WC) is a cross-appeal filed by Brown-Forman in this Court as a protective measure.

In addition to the issues presented by the parties, this Court has requested that they address the issue of whether this workers' compensation case is properly on appeal to this Court pursuant to CR 76.36(7) and Section 115 of the Kentucky Constitution, an appeal as a matter of right, or whether workers' compensation cases are restricted to discretionary review by this Court, pursuant to CR 76.25(12).

Procedurally, this action began when the "old" Board found the infant grandchildren to be partially dependent upon their grandmother and had awarded to them "the sum of the temporary total benefits heretofore paid to or on behalf of the deceased on or prior to her death on November 1, 1983 and shall further recover the sum of $51.47 per week on behalf of such partially dependent grandchildren beginning November 22, 1983, for the remainder of the deceased's life expectancy, or until each such grandchild has attained eighteen years of age, whichever shall first occur...." This decision was appealed by the employer to the "new" Workers' Compensation Board, pursuant to KRS 342.285, per Jefferson County Board of Education v. Miller, Ky.App., 744 S.W.2d 751 (1988).

In affirming the "old" Board, the "new" Board also found that the grandchildren were 25% partially dependent upon their grandmother at the time of the accident, and were properly awarded benefits pursuant to KRS 342.730(3)(d).

Brown-Forman then filed an appeal to the Court of Appeals, rather than to the circuit court, pursuant to KRS 342.290 and CR 76.25. The Court of Appeals reversed the "new" Board. In its appeal, Brown-Forman contended that the Board erred and that benefits should have terminated upon Ms. Vessels' death. Alternatively, Brown-Forman argued that if benefits did not terminate, the grandchildren were not her dependents and therefore not entitled to benefits. Brown-Forman further contended that, in any event, the award of benefits should be modified to provide for a reduction in the amount of the benefits as each grandchild is emancipated. The Court of Appeals found that the evidence before the Board compelled a finding that the grandchildren were not dependent upon Nellie Vessels, and reversed the award.

This brings us to the actions commenced in this Court. The Vessels filed a motion for discretionary review and a direct appeal as a matter of right. Brown-Forman filed a cross-appeal in which they ask us to:

(1) dismiss the appeal and cross-appeal but to review the issues via Vessels' motion for discretionary review and to accept their cross-appeal as a cross motion for discretionary review; and

(2) decline Vessels' motion for discretionary review or affirm the Court of Appeals' decision because:

a. Plaintiff failed to prove an essential element of his case--that Ms.

Vessels' contributions to the family exceeded the value of the services she received from the family--and, therefore, there was no substantive evidence to support the Board's finding of dependency and award of continued benefits to the grandchildren; and/or

b. The proper time to test dependency under KRS 342.730(3) is at death, not injury, and the evidence precludes a finding that her grandchildren were dependent on Ms. Vessels in 1983 before her death.

Before addressing the merits of this case, we must initially address Brown-Forman's contention that there is no appeal as a matter of right to the Supreme Court from the Court of Appeals' review of a workers' compensation award. There are two routes through which a litigant may properly proceed to this Court from the ruling of a lower court. The first, and most often used route, is the one of discretionary review provided by CR 76.20. The second is a matter of right appeal provided by Section 115 of our constitution.

Being mindful of the legislature's 1987 amendment to the Workers' Compensation Act, KRS 342.290, and CR 76.20, CR 76.25(12), and Sections 109, 111(2) and 115 of Kentucky's Constitution, and out of an abundance of precaution, the Vessels proceeded to follow both routes to this Court. We have held their motion for discretionary review (89-SC-421-D) in abeyance, pending our determination of the threshold question. That question is what is the proper route to this Court in a workers' compensation case.

The Vessels, as appellants, contend that Section 115 of the constitution gives them a matter of right appeal to this Court since KRS 342.290 provides that a decision of the Board is judicially reviewed for the first time by the Court of Appeals, rather than by the circuit court. That is, appellants are entitled to two (2) judicial opportunities, at least one of which must be an appeal, as a matter of right, notwithstanding CR 76.25(12). Thus, the appeal to this Court becomes the first appeal to another court referred to in Section 115 of the Kentucky Constitution, and as such, is an appeal as a matter of right.

On the other hand, Brown-Forman contends that our constitution does not contemplate an appeal to the Supreme Court as a matter of right from the Court of Appeals in workers' compensation cases. In support of this contention it argues that Section 115 of our constitution does not mandate appeals in workers' compensation cases to this Court because "... the legislature and the Supreme Court have implemented the Constitution's Section 111(2) exception to the appellate jurisdiction of the Court of Appeals."

Brown-Forman further states that the exception created by Section 111(2) was first utilized in 1987 when the legislature amended the Kentucky Workers' Compensation Act to provide for a direct appeal from the newly constituted Workers' Compensation Board to the Kentucky Court of Appeals, as a matter of right. KRS 342.290. Pursuant to the legislature's request, this Court then implemented CR 76.25, a special rule for review of Workers' Compensation Board decisions effective January 15, 1988.

CR 76.25(12) provides, as a matter of right, an appeal by any party aggrieved by a decision of the Workers' Compensation Board to the Court of Appeals. In CR 76.25(12), the rule provides that further review may be sought in the Supreme Court of a final decision or final order of the Court of Appeals in a workers' compensation matter in accordance with the rules applicable to motions for discretionary review under CR 76.20.

We disagree and reject out of hand Brown-Forman's contention that Kentucky's Constitution does not mandate appeals in workers' compensation cases to this Court, and therefore hold that CR 76.25(12) is unconstitutional. We had thought this issue had been put to rest almost two centuries ago by the celebrated case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Congress, by the Judiciary Act of 1789, had sought to enlarge the Supreme Court's original jurisdiction by empowering it to issue writs of mandamus and other writs.

Article III, Section 2 had limited the Supreme Court's original jurisdiction "to all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party." Article VI, cl. 2 established that the United States Constitution, and "the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...."

In the opinion by Justice Marshall, the Supreme Court held that inasmuch as the Judiciary Act conflicted with Article III, Section 2, and was not made pursuant to the United States Constitution as required by Article VI, that the writ issued by the court was void.

We are a constitutional government, and under Section 4 of the Kentucky Constitution, all power is retained by the people. Only the people by amendment or by convention have the power to amend or change the constitution.

The present KRS 342.290 in no way conflicts with Section 115 of the Kentucky Constitution. This statute simply eliminated the circuit court as the court authorized to review opinions, orders and awards of the Workers' Compensation Board. It gave the Court of Appeals the same power to review as had been originally given by statute to the circuit court--no more, and no less. Nor does Section 111(2) conflict with Section 115. Section 111(2) is as follows:

The Court of Appeals shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the Commonwealth .... [Emphasis added.]

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