FRESHPACK, INC. V. HELEN SATTERFIELD; HON. THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: December 23, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000179-WC
FRESHPACK, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. 94-16035
v.
HELEN SATTERFIELD;
HON. THOMAS A. NANNEY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:, BUCKINGHAM, GARDNER, AND KNOPF, JUDGES.
KNOPF, JUDGE:
This is a petition for review of an opinion and
order by the Workers’ Compensation Board (Board) following remand
to the Administrative Law Judge (ALJ) for further findings.
Finding that the appeal is prematurely brought to this Court, we
dismiss the petition.
The appellee, Helen Satterfield, filed a claim for
workers’ compensation benefits after leaving her employment with
the appellant, Freshpack, Inc.
On May 28, 1997, the
Administrative Law Judge (ALJ) entered an opinion and order
finding Satterfield, to be one hundred percent (100%)
occupationally disabled as a result of her carpal tunnel syndrome
and from a psychiatric disorder aroused into disabling reality by
her work-related injury.
The Board affirmed in part, reversed in
part and remanded for further findings, stating:
In our opinion, the medical evidence as
to Satterfield’s psychological condition
either partially preexisting her work
injuries or not being totally related to
those injuries was uncontradicted. The ALJ
has given no explanation for rejecting that
uncontradicted medical testimony. Mengel v.
Hawaiian Tropic Northwest & Central, Ky.
App., 618 S.W.2d 184 (1981); Elizabethtown
Sportswear Center v. Stice, Ky.App., 720
S.W.2d 732 (1986); Commonwealth v. Workers’
Comp. Bd., Ky.App., 697 S.W.2d 540 (1985).
On remand, the ALJ must either find part of
Satterfield’s occupational disability as
noncompensable, being either preexisting
active, or nonwork-related, or explain why he
rejects the uncontradicted medical evidence
on this issue.
Board Opinion, September 12, 1997, p. 10.
On remand, the ALJ set out his reasons for disregarding
the medical testimony.
ALJ
In an order dated December 27, 1997, the
reaffirmed his previous award.
On January 20, 1997,
Freshpack filed a notice of appeal of the ALJ’s decision to the
Board.
Simultaneously, Freshpack filed a petition for review of
the Board’s decision in this Court.
On February 3, 1998, this Court entered an order
directing Freshpack to show cause why the petition for review
should not be dismissed as untimely.
Following Freshpack’s
response, the matter was passed to this panel on the merits.
In
the meantime, the Board is holding its appeal of the ALJ’s order
in abeyance, pending a decision by our Court.
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Freshpack states that it filed its petition for review
in response to a footnote in an unpublished decision by this
Court.1
We appreciate that Freshpack took this step out of an
abundance of caution and to preserve its rights in a situation
which it perceived to be ambiguous.
Notwithstanding CR
76.28(4)(c), this Court does not find any indication that
Freshpack’s motives in filing this appeal or in referencing the
unpublished opinion were not in good faith.
Moreover, the law
regarding finality, as well as the time to appeal a decision of
the Board, has been in a state of flux.
Thus, Freshpack’s
caution in this area is understandable.
The Supreme Court of Kentucky recently modified and
clarified the law regarding finality of Board decisions.
v. Island Creek Coal Co., Ky., 969 S.W.2d 712 (1998).
Davis
In Davis,
the employer appealed to the Board after an ALJ awarded
Retraining Incentive Benefits (RIB) to the employee.
The Board
reversed the award and remanded the claim to the ALJ to determine
whether there was good cause for the employer’s failure to file a
timely notice of resistance.
The employee appealed the Board’s order to the Court of
Appeals.
This Court held that the Board’s reversal of the ALJ’s
award was not a final and appealable order because it did not
finally dispose of the claim.
689 S.W.2d 21 (1985).
Citing: Stewart v. Lawson, Ky.,
As a result, this Court dismissed the
appeal.
1
Inland Container Corporation v. Rogers, No.
(August 1, 1997).
-3-
95-CA-3139-WC
On further appeal, the Supreme Court explained the test
for determining when an order of remand by an appellate court is
final and appealable to a higher appellate court.
If the Board’s
order either set aside the ALJ’s award or authorized the ALJ to
enter a different award, then the order deprived a party of a
vested right and was final and appealable.
On the other hand, if
the Board’s order only remanded the case to the ALJ with
directions to comply with statutory requirements without
authorizing the taking of additional proof or the entry of a
different award, the order was interlocutory and not appealable.
Davis, 969 S.W.2d at 713.
In addition, the Supreme Court distinguished Stewart v.
Lawson, supra, stating that the issue in Stewart “should not have
been whether the employer was required to appeal from the first
circuit court order, but whether it was entitled to appeal from
the second circuit court order which affirmed the board’s award
after remand.
Thus viewed, the issue was not whether the first
order was final and appealable, but whether the second appeal was
precluded because the first order was ‘law of the case’
[Citations omitted]” Davis, 969 S.W.2d at 714
Turning to the case before it, the Supreme Court
concluded:
In the case sub judice, the board's
order set aside an award in favor of
Appellant and remanded the case with
directions to determine whether the
employer's failure to file a timely notice of
resistance was for "good cause," and,
presumably, if so, to take additional proof
and enter a new order. Since this order
allowed the ALJ on remand to divest Appellant
of his vested right to a RIB award, it was
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final and appealable to the Court of Appeals.
To the extent that Stewart v. Lawson, supra,
holds otherwise, it is overruled.
Id.
In the present case, the Board’s first order partially
set aside the ALJ’s order and remanded it for further factual
findings.
However, the Board’s order did not deprive Freshpack
of an adjudication in its favor.
While the Board’s order
authorized the ALJ to enter a different award on Satterfield’s
psychiatric impairment, Freshpack’s rights were not affected.
Indeed, Freshpack could not have filed an appeal on the
psychiatric impairment issue, because its obligations had not
been conclusively adjudicated.
Furthermore, it would be absurd
to require Freshpack to take a piecemeal appeal from one portion
of the Board’s first order.
Consequently, under Davis v. Island
Creek Coal Co., supra, the Board’s decision of September 12, 1997
was not a final and appealable order.
Nonetheless, this Court does not find any authority
which would permit Freshpack to bring a petition for review
directly from the ALJ’s order on remand.
Neither KRS 342.290 nor
CR 76.25 authorize a direct appeal from an ALJ decision on remand
to this Court.
Instead, an appeal from an ALJ decision must be
taken to the Board.
KRS 342.285.
In the present case, the Board
must be given the first opportunity to review the ALJ’s findings
upon remand.
While the Board may be precluded from reconsidering
its previous ruling on the remaining issues, the doctrine of law
of the case will not bind this Court on a subsequent appeal.
Therefore, Freshpack’s appeal is premature and must be dismissed.
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Accordingly, the petition for review filed by
Freshpack, Inc. is dismissed as premature.
ALL CONCUR.
ENTERED: December 23, 1998
/s/
Wm. L. Knopf
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Judith K. Bartholomew
Woodward, Hobson & Fulton, LLP
Louisville, Ky.
Nick Belker
Louisville, Ky.
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