RALPH WARREN v. AMERICAN TESTING & ENGINEERING ACTING DIRECTOR OF SPECIAL FUND; HON. SHEILA A. LOWTHER, ADMINISTRATIVE LAW JUDGE; KENTUCKY WORKERS' COMPENSATION BOARD and AMERICAN TESTING & ENGINEERING v. RALPH WARREN; HON. RON CHRISTOPHER, ACTING DIRECTOR OF SPECIAL FUND; HON. SHEILA A. LOWTHER, ADMINISTRATIVE LAW JUDGE; KENTUCKY WORKERS' COMPENSATION
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RENDERED:
February 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001165-WC
RALPH WARREN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-037931
AMERICAN TESTING & ENGINEERING
ASSOCIATES; HON. RON CHRISTOPHER,
ACTING DIRECTOR OF SPECIAL FUND; HON.
SHEILA A. LOWTHER, ADMINISTRATIVE
LAW JUDGE; KENTUCKY WORKERS'
COMPENSATION BOARD
and
NO. 1997-CA-001369-WC
AMERICAN TESTING & ENGINEERING
ASSOCIATES
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-037931
RALPH WARREN; HON. RON CHRISTOPHER,
ACTING DIRECTOR OF SPECIAL FUND;
HON. SHEILA A. LOWTHER,
ADMINISTRATIVE LAW JUDGE;
KENTUCKY WORKERS' COMPENSATION
BOARD
CROSS-APPELLEES
OPINION AND ORDER
AFFIRMING IN CASE NO. 1997-CA-001165-WC
AND DISMISSING IN CASE NO. 1997-CA-001369-WC
* * * * * * *
BEFORE:
GARDNER, JOHNSON, and MILLER, JUDGES.
JOHNSON, JUDGE:
Ralph Warren (Warren) petitions for review and
American Testing & Engineering Associates (ATEC) cross-petitions
for review of a decision of the Workers' Compensation Board
(Board) entered on April 25, 1997.
We affirm as to the petition
for review and dismiss the cross-petition as moot.
Warren filed a claim on September 22, 1995, seeking
workers' compensation benefits for lateral epicondylitis (tennis
elbow), a repetitive use injury.
Warren had been employed by
ATEC from 1990 until April 1995 as a drill rig operator.
Warren,
who resided in Corbin, Kentucky, had originally been hired by
ATEC's Louisville office.
However, he was transferred to ATEC's
Indianapolis, Indiana office in July 1993.
Typically, Warren
would get his assignment each week by calling his supervisor in
Indianapolis on Monday morning.
His work required that he travel
throughout Illinois, Ohio, Tennessee, Indiana and Kentucky, but
most of his assignments were in Indiana.
ATEC raised several defenses to Warren's claim,
including Warren's failure to establish that Kentucky had
jurisdiction over his claim.
In her opinion and award rendered
on April 30, 1996, the ALJ concluded that Kentucky did have
jurisdiction over the claim stating as follows:
[I]t is the finding of this
Administrative Law Judge that the
Plaintiff's contract of hire was made in
Kentucky. It is the further
determination of the Administrative Law
Judge that Mr. Warren's employment was
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not principally localized in any state.
Since the Plaintiff alleges an injury
arising out of the repetitive use of his
right arm, it cannot be argued that this
injury occurred in a particular state.
The Defendant has cited Amax Coal
Company vs. Smith, Ky. App., 748 SW2d
158 (1988). It is the conclusion of the
Administrative Law Judge that reliance
on this case by the Defendant is not
appropriate, since it is a
pneumoconiosis claim and the Plaintiff
therein had worked exclusively in
another state for several years prior to
filing his claim. Thus, it is the
determination of the Administrative Law
Judge that Kentucky does have
jurisdiction.
Warren was awarded benefits for a 10% occupational disability.
In its opinion rendered on September 27, 1996, the
Board reversed the decision of the ALJ.
It analyzed the
extraterritorial coverage provisions of the compensation scheme
contained in Kentucky Revised Statutes (KRS) 342.670, as well as
the law established in Eck Miller Transportation Corp. v. Wagers,
Ky. App., 833 S.W.2d 854 (1992), and held as follows:
Frankly, as we review this matter and
the totality of the evidence, which is
essentially uncontradicted on all
significant aspects of when and where
the working activities took place, we
see no distinction between the evidence
here and that which was presented in
Wagers. The Court there emphasized that
in its opinion the Board had attempted
to supplant the fact finding function of
the ALJ and, therefore, reversed the
Board and reinstated the ALJ's decision.
While so phrased, in our opinion, in
interpreting that decision the Court
found as a matter of law that based upon
the evidence presented Wagers' working
activities were principally localized in
Tennessee and, therefore, the Board
erroneously placed significance upon the
location of the contract for hire.
Terry vs. Associated Stone Co., Ky., 334
SW2d 926 (1960)[.]
-3-
The similarities are further
significant in that Wagers was initially
assigned to a Kentucky terminal and was
later transferred to a Tennessee
terminal. The Court noted, in
considering the extraterritorial
applicability, that [the] worker's most
recent employment is what is important.
There, as here, the worker spent time
performing working activities in
Kentucky and frequently received his
directions by way of phone calls to
Kentucky from his terminal site in
Chattanooga, Tennessee. Here, we
believe the evidence established Warren
worked from American's Indianapolis
business site. Because of the nature of
his business and the regular travel
involved, he generally proceeded from
his home in Corbin.
This being a question of law, we
conclude that, as such, KRS 342.670(1)
(a) as that is defined by KRS 342.670
(4) (d) (1) establishes Indiana as the
principal localization and there is not
extraterritorial coverage.
The Board remanded the matter to the ALJ for "further
proceedings" consistent with its opinion.
Warren did not seek review in this Court of the Board’s
decision which divested him of his award.
Since the Board had
determined, as a matter of law, that Kentucky did not have
jurisdiction over Warren's claim, there was nothing for the ALJ
to do on remand except dismiss the claim.
On January 19, 1997,
the ALJ formally dismissed Warren’s claim.1
Warren appealed to the Board a second time.
He argued
that the ALJ had "properly considered the factors pursuant to KRS
1
The order of dismissal stated: "Pursuant to the decision of
the Workers' Compensation Board, it is the finding of this
Administrative Law Judge on remand that Kentucky did not have
authority to exercise jurisdiction over this claim and,
therefore, this claim for benefits is hereby DISMISSED."
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342.670 in making her original finding[,]" and took issue with
the Board's interpretation of that statute.
ATEC moved to
dismiss the appeal and argued that the Board's previous order was
final and appealable barring any further appeal.
The Special
Fund, relying on Inman v. Inman, Ky., 648 S.W.2d 847 (1982),
argued that the appeal should be dismissed based on the "law of
the case" doctrine.
In its second review, the Board determined that its
first order was not a "final and appealable order within the
meaning of C[ivil] R[ule] 54.01," citing Stewart v. Lawson, Ky.,
689 S.W.2d 21 (1985).
However, the Board determined it was bound
by the "law of the case" doctrine and refused to address anew the
only issue raised by Warren concerning its previous
interpretation of the extraterritorial coverage statute.
In his petition for review in this Court, Warren argues
that the Board erred in its interpretation of KRS 342.670.
In
its cross-petition for review, ATEC argues that the Board erred
in failing to determine that its original opinion was final and
appealable. The Special Fund argues that the Board correctly
applied the "law of the case" doctrine as a bar to further review
of the legal determinations in the Board's previous order.
Although there has been some confusion as to when it is
appropriate to seek review in this Court from an order of the
Board which remands the claim to the ALJ, it has long been
settled that an order which sets aside an award, or which
authorizes the ALJ to make a different award, or which “acts to
decide the matter litigated by the parties,” is final and
appealable and ripe for review.
King Coal Company v. King, Ky.
-5-
App., 940 S.W.2d 510 (1997).
In order to obtain this Court's
review of the Board's resolution of the jurisdictional issue, a
determination that resulted in the vacation of the ALJ's award
and foreclosed any possibility of an award in favor of Warren, it
was incumbent upon Warren to appeal to this Court from the
Board's original order.
We agree with ATEC that the effect of
the Board's original decision "was to adjudicate the rights of
the parties completely", and that Warren's failure to appeal that
decision implicates the bar of res judicata.
Wheatley v. Bryant
Auto Service, Ky., 860 S.W.2d 767, 768 (1993) (the doctrine of
res judicata held to apply to workers' compensation awards, "if
those awards are not appealed within the thirty-day period and
are not subject to a proper reopening under KRS 342.125").
See
also Keefe v. O.K. Precision Tool & Die Company, Ky. App., 566
S.W.2d 804 (1978).
Warren has not addressed the issue of the finality of
the Board's original order, nor has he responded to ATEC's crossappeal.
We conclude that ATEC is correct in its contention that
the Board's opinion of September 27, 1996, was a final and
appealable order.
The Board's original determination that
Kentucky had no jurisdiction over Warren's claim precluded any
action other than the ministerial dismissal by the ALJ.
Thus,
the Board's determination in its opinion of April 25, 1997, that
its previous opinion was "more interlocutory rather than a
termination of the action" is erroneous as a matter of law.
Nevertheless, because the Board dismissed Warren's appeal for a
different reason, no further relief or remand is necessary.
We
will affirm the Board if it reached the correct result even if it
-6-
did so for the wrong reason.
Clark v. Young, Ky.App., 692 S.W.2d
285, 289 (1985).
Accordingly, the opinion of the Workers' Compensation
Board is affirmed and the cross-petition of ATEC is DISMISSED as
moot.
ALL CONCUR.
ENTERED:
February 5, 1999
/s/ Rick A. Johnson
JUDGE, COURT OF APPEALS
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BRIEF FOR APPELLANT/CROSSAPPELLEE, RALPH WARREN:
BRIEFS FOR APPELLEE/CROSSAPPELLANT; AMERICAN TESTING
AND ENGINEERING ASSOCIATES:
Hon. Ronald C. Cox
Harlan, KY
Hon. Robert S. Jones
Lexington, KY
BRIEF FOR APPELLEE/CROSSAPPELLEE, SPECIAL FUND:
Hon. Judith K. Bartholomew
Louisville, KY
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