JOSEPH K. HUTCHINS v. SUMMA TECHNOLOGY/KEN-MAR; HON. BONNIE C. KITTINGER, ADMINISTRATIVE LAW JUDGE; HON. JOHN W. THACKER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 19, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2005-CA-000127-WC
JOSEPH K. HUTCHINS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-98565
v.
SUMMA TECHNOLOGY/KEN-MAR;
HON. BONNIE C. KITTINGER,
ADMINISTRATIVE LAW JUDGE;
HON. JOHN W. THACKER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
KNOPF, JUDGE:
Joseph K. Hutchins appeals from an opinion and
order by the Workers’ Compensation Board (Board) which vacated an
interlocutory order by the administrative law judge (ALJ) and
remanded for entry of a final opinion and award.
Hutchins argues
that the Board did not have jurisdiction to review the ALJ’s
interlocutory order.
We agree with the Board that the ALJ
exceeded her authority by entering an interlocutory order based
upon the facts of this case.
Hence, we affirm and remand for
additional proceedings as directed by the Board.
On December 2, 2002, Hutchins suffered a back injury
during the course of his employment with Summa Technology/Ken-Mar
(Summa).
He reported the injury the following day and was taken
off work.
He attempted to return to work several times, but the
pain and the brace he was prescribed for his back interfered with
the performance of his work duties.
Hutchins’s last day of paid
employment was March 11, 2003.
The ALJ held a hearing on Hutchins’s claim on March 24,
2003, and the claim was submitted for a decision based upon the
medical evidence and other testimony of record.
Neither party
disputed that Hutchins had reached maximum medical improvement
(MMI).
But in an “Interlocutory Opinion, Award and Order”
entered on June 8, 2004, the ALJ found that Hutchins had not
reached MMI.
In particular, the ALJ noted the medical testimony
from Dr. Bilkey, Dr. Nazar, and Dr. Loeb, all of whom testified
that Hutchins’s back injury was treatable, but only if Hutchins
lost a significant amount of weight.
Consequently, the ALJ ordered Summa to continue paying
temporary total disability (TTD) benefits to Hutchins.
The ALJ
also ordered Summa to continue paying all of Hutchins’s medical
2
expenses, including the costs of a referral for weight reduction
treatment.
Summa filed a petition for reconsideration, which the
ALJ denied in an order entered on August 6, 2004.
In that order,
the ALJ clarified that Summa’s obligation to pay for weight
reduction treatment would “run for a reasonable period of time to
establish whether the claimant is making progress toward weight
loss and achieving maximum medical improvement.”
On appeal, the Board vacated the ALJ’s order and
remanded for entry of a final disposition.
The Board first found
that the ALJ lacked any basis for designating the order as
interlocutory.
As a result, the Board determined that the ALJ’s
order was final and appealable.
Second, the Board concluded that
the ALJ had misconstrued the medical evidence in finding that
Hutchins had not reached MMI.
Finally, the Board found that the
ALJ had erred by ordering Summa to pay the costs of Hutchins’s
weight reduction treatment.
Hutchins first argues that the ALJ specifically
designated her order interlocutory and therefore not appealable.
In reaching its conclusion that the ALJ was not authorized to
enter an interlocutory order, the Board noted that the ALJ is
required to issue an opinion, award or decision within sixty days
after the final hearing.1
1
Because the ALJ did not issue her
KRS 342.275(2).
3
opinion for seventy-six days after the hearing, the Board
concluded that Hutchins’s claim became a final order by operation
of law.
However, we agree with the separate opinion by Board
Member Stanley that the ALJ’s delay in issuing the opinion is not
relevant to a determination of the order’s finality.
We first note that the ALJ’s pre-hearing order provided
that the matter would stand submitted as of April 21, 2004, when
the parties’ briefs were due.
While the ALJ’s June 8, 2004 order
was entered seventy-six days after the hearing, it was entered
within sixty-days from the submission date.
KRS 342.275(2)
allows entry of the order later than sixty days after the hearing
“when extension is mutually agreed to by all parties.”
In this
case, no party objected to the submission date set out in the
pre-hearing order.
Moreover, the Board’s jurisdiction cannot be invoked
until entry of a final order by the ALJ.2
While the ALJ must
enter a decision within sixty days from the final hearing, KRS
342.275(2) does not deprive the ALJ of the authority to enter an
order after that time.3
2
“At best, where an ALJ fails to timely
KRS 342.285.
3
See Coleman v. Eastern Coal Corp., 913 S.W.2d 800 (Ky.,App.
1995). See also Evangelical Lutheran Good Samaritan Society,
Inc. v. Albert Oil Co., Inc., 969 S.W.2d 691, 693 (Ky. 1998),
holding that a quasi-judicial body is not deprived of
jurisdiction to act after expiration of a mandatory time limit
unless the statute expressly sets out such consequences.
4
render a decision in accordance with KRS 342.275(2), until such
time as a decision is issued, the parties to the claim simply
become empowered to seek a writ of mandamus from the Franklin
Circuit Court compelling the performance by the ALJ of her
statutory duties.”4
Consequently, the ALJ’s delay in rendering
the order does not affect its finality.
Nevertheless, we agree with the rest of the Board’s
reasoning holding that the ALJ was not authorized to enter an
interlocutory order in this case.
It is well-established that an
award of interlocutory relief in the form of TTD benefits is not
appealable to the Board.5
However, an ALJ’s authority to award
interlocutory relief is not unlimited.
The applicable
administrative regulations set forth a procedure whereby a party
may seek interlocutory relief.6
In the current case, Hutchins never sought
interlocutory relief, and he never claimed that he would suffer
irreparable injury, loss or damage pending final decision of his
4
Board Order Vacating and Remanding, December 17, 2004, p. 12
(Stanley, Member, Concurring in part and dissenting in part).
5
KI USA Corp. v. Hall, 3 S.W.3d 355 (Ky. 1999); Ramada Inn v.
Thomas, 892 S.W.2d 593 (Ky. 1995); and Saling and Hall, 774
S.W.2d 468 (Ky.,App. 1989).
6
803 KAR 25:010, § 12.
5
claim, which is a prerequisite to granting interlocutory relief.7
Indeed, Hutchins never argued to the ALJ that he had not reached
MMI.
Rather, in his brief to the ALJ following the hearing he
asserted that he is 100% occupationally disabled and was entitled
to an award of total disability benefits.
Furthermore, we agree with the Board that the evidence
did not support the ALJ’s finding that Hutchins had not reached
MMI:
The ALJ purported to premise her actions
on evidence of record from Dr. Warren Bilkey
regarding Hutchins’ attainment of MMI. In his
September 9, 2003 report, Dr. Bilkey stated
the opinion that Hutchins had reached MMI
‘[f]rom the standpoint of the workers’
compensation case.’ Dr. Bilkey therefore
assigned a permanent impairment rating
pursuant to the Fifth Edition of the American
Medical Association’s Guides to the
Evaluation of Permanent Impairment. The fact
that Dr. Bilkey also stated in his report a
belief that Hutchins ‘is not from the medical
standpoint at maximum medical improvement,’
as opposed to being at MMI ‘[f]rom the
standpoint of the workers’ compensation
case,’ appears, in the context of Dr.
Bilkey’s report, to relate to Hutchins’
nonwork related medical problems – especially
Hutchins’ weight of approximately 400 pounds.
It does not support the ALJ’s acting, in the
absence of a request from any party and in
the absence of the requisite showing of
irreparable harm to the claimant, to place
the claim in abeyance and award ongoing TTD
benefits . . .
The ALJ also noted that Dr. Thomas Loeb
made statements in his deposition ‘that
7
803 KAR 25:010, § 12(4)(a).
6
Plaintiff is unable to work and that his back
condition is treatable, however, not while he
weighs 425 pounds.’ Dr. Loeb, however, also
stated that Hutchins reached MMI from the
work injury long ago; that Hutchins had no
permanent impairment from the work injury;
and that Hutchins’ ongoing back condition was
not work-related. Dr. Loeb’s opinions do not
support the ALJ’s acting, in the absence of a
request from any party and in the absence of
the requisite showing of irreparable harm to
the claimant, to place the claim in abeyance
and award ongoing TTD benefits . . . 8
Finally, Hutchins argues that the Board erred by
setting aside the ALJ’s order directing Summa to pay the costs of
weight-reduction treatment.
He notes the medical evidence that
his back condition is treatable, but only if he loses a
significant amount of weight.
Consequently, Hutchins asserts
that the costs of a weight-reduction treatment are reasonably
related to the treatment of his work-injury.
There is no question that an employer is obligated to
pay medical expenses for “the cure and relief from the effects of
an injury or occupational disease.”9
However, Hutchins had the
burden of proving that the medical expenses are related to the
injury and are reasonable and necessary prior to an application
of benefits being filed and before an award or order of
8
Board Order, supra, pp. 8-9 (emphasis in original).
9
KRS 342.020(1).
7
benefits.10
In this case, Hutchins has a pre-existing, non-work-
related condition (obesity) which complicates treatment of his
work-related back injury.
The ALJ ordered Summa to pay
Hutchins’s expenses for a non-specific weight-reduction treatment
that Hutchins had never claimed was necessary to his treatment.
In fact, Hutchins argued in his brief to the ALJ that his obesity
did not contribute to his back injury.
Furthermore, Hutchins
never invoked the provisions of 803 KAR 25:012, which sets out
the procedure for resolution of medical disputes.
Given the
absence of any proof that a specific weight-reduction treatment
is reasonably related to the work injury, we agree with the Board
that the ALJ erred by ordering Summa to pay such medical
expenses.
Accordingly, the December 17, 2004, opinion and order
of the Workers’ Compensation Board is affirmed, and this matter
is remanded to the ALJ for further proceedings as set forth in
the Board’s opinion.
ALL CONCUR.
BRIEF FOR APPELLANT
JAMES ANDERSON:
BRIEF FOR APPELLEE
HOMELESS & HOUSING COA:
Ben T. Haydon
Haydon & Dockter
Bardstown, Kentucky
Judson F. Devlin
Fulton & Devlin
Louisville, Kentucky
10
KRS 342.735(3).
8
9
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