Hereford v. Storms , 1990 Ky. App. LEXIS 172 ( 1990 )

GUDGEL, Judge,

dissenting:

Respectfully, I am constrained to dissent. In my opinion there is simply no statutory basis for the procedure sanctioned by the majority opinion. Although this is an unusual case in that the uninsured employer has assets sufficient to satisfy the board’s award and, hence, the employee’s dependent cannot look to the uninsured employer’s fund for payment of her benefits as they accrue, the majority erroneously provides the dependent with an expedient enforcement remedy which is not authorized by law. Regardless of whether the employer is insured, there are only two situations in which the workers’ compensation statute authorizes the commuting of an award of periodic disability benefits to a lump sum. Pre-award lump sum settlements between the employer and the employee are authorized under KRS 342.265, and post-award lump sum settlements are authorized under KRS 342.150. See Palmore v. Helton, Ky., 779 S.W.2d 196 (1989). However, both of these statutes expressly require the employer to agree to the award’s commutation to a lump sum. Here, by contrast, appellant has refused to voluntarily make any payment of benefits, much less to agree that the award be commuted to a lump sum. It is clear, therefore, that the commutation of the award in the instant action may be upheld only if the court’s action was authorized under KRS 342.305 or 342.790. I fail to perceive that it was.

The majority opinion finds a basis for the court’s action in KRS 342.305. However, this statute only authorizes the circuit court to render a judgment in accordance with the board’s award. It is undisputed that the award to appellee in the instant action was for periodic payments. Contrary to the majority, I find no basis in the language of the statute to authorize commutation of an award of periodic benefits to a lump sum, and the mere fact that nothing in the statute expressly prevents commutation is of no significance. Obviously, since two statutes expressly cover lump sum awards, there was no reason for mentioning that subject in KRS 342.305, which governs only the enforcement of awards. I do not believe that we would be justified in implying, as appellee urges, a private cause of action under KRS 342.790. Such a construction of that statute would effectively rewrite KRS 342.265 and 342.-150 so as to preclude their application to cases involving uninsured employers. This I am unwilling to do, since the legislature itself has not seen fit to do so.

The circuit court should have entered a judgment in this case awarding appellee a judgment for future benefits, as they accrue, which conformed in all respects to the language of the board’s award. In order to enforce such a judgment appellant need only cause the issuance and service of successive executions against appellant’s property. This burden on appellee is no less onerous than that imposed upon any other judgment creditor. In my view, it is not sufficiently burdensome to justify this court’s provision of an expedient remedy by judicial fiat which is not authorized by the statute. Indeed, if the majority decision in the instant action is sustained, then we should also provide similar relief in other cases involving refusals to pay money benefits as they accrue, such as commuting to lump sums future nonaccrued payments of child support and maintenance.

I would reverse the court’s judgment with directions to enter a new judgment consistent with KRS 342.305.