WEDDLE ENTERPRISES, INC. VS. COMP JASPER (ROYCE), ET AL.
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RENDERED: MAY 14, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001812-WC
WEDDLE ENTERPRISES, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-85666
ROYCE JASPER; HON. EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE; HOWARD
LYND, M.D.; HARRY LOCKSTADT, M.D.;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND WINE, JUDGES.
WINE, JUDGE: Weddle Enterprises, Inc. petitions this Court for review of an
opinion of the Kentucky Workers’ Compensation Board affirming the
Administrative Law Judge’s opinion awarding Royce Jasper permanent total
disability benefits and determining that the surgery Jasper underwent was
reasonable and necessary to the work-related injury he sustained. Weddle asks this
Court to reverse the Board on the ground that the Board failed to properly apply
the doctrine of issue preclusion. For the reasons set forth herein, we affirm.
Factual and Procedural History
On April 27, 2005, Jasper was performing his duties as an employee
of Weddle when a valve, weighing approximately 150 pounds, slipped and fell into
the ditch where he was working, landing on his back. Jasper sought medical
treatment and made an injury claim. The case was originally assigned to
Administrative Law Judge Andrew Manno (“ALJ Manno”).
Subsequent to his injury, Jasper was treated by Dr. Amr El-Naggar
and Dr. Harry Lockstadt. Both doctors recommended surgery. However, although
Dr. El-Naggar was of the opinion that a fusion surgery would be most appropriate,
Dr. Lockstadt was of the opinion that disc surgery would be more appropriate.
Thereafter, Jasper moved to bifurcate the claim on the grounds that he needed
surgery which was denied by Weddle and that it appeared that the appropriate next
step would be to allow the parties to take proof on the medical necessity of the
surgery.
On September 13, 2006, a benefit review conference was held, and it
was ordered that the issue of the compensability of surgery be bifurcated from the
other issues. The parties initially filed briefs and introduced various medical proof.
While both Dr. El-Naggar and Dr. Lockstadt suggested surgery for Jasper, three
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other doctors, Drs. Travis, Wolens, and Tutt, did not feel that surgery was
necessary.
On November 20, 2006, ALJ Manno entered an interlocutory opinion,
award, and order stating that the issues to be resolved were (1) the occurrence of an
injury, (2) the compensability of proposed medical treatment (including an MRI,
fusion surgery, and/or artificial disc surgery), and (3) potential post-award
temporary total disability benefits. ALJ Manno found that Jasper had suffered a
work related injury. However, he noted that it was unclear whether the injury was
temporary or permanent. Thus, he found that an MRI was reasonable and
necessary to determine if additional treatment was necessary for Jasper. ALJ
Manno indicated that he would order an evaluation by a University evaluator
pursuant to Kentucky Revised Statute (“KRS”) 342.315 after the MRI was
performed. ALJ Manno then placed the claim in abeyance pending the completion
of the MRI testing and evaluation. The issues of potential disc or fusion surgery
and potential post-award temporary total disability benefits were passed pending
the receipt of the University evaluation report.
On November 2, 2007, with the MRI and University evaluation
having been completed, ALJ Manno entered an interlocutory opinion and order on
the bifurcated issues. The University evaluator agreed with Drs. El-Naggar and
Lockstadt that surgery was appropriate, specifically recommending fusion surgery.
However, ALJ Manno rejected the findings of the University evaluator, and instead
agreed with the medical opinions of Drs. Tutt and Travis that surgical intervention
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would not be related to the work injury. As ALJ Manno found that surgery would
not be related to the work injury, he ordered that Weddle was not responsible for
the surgery. Jasper filed a petition for reconsideration thereafter on the ground that
ALJ Manno violated the provisions of KRS 342.315 by failing to give the opinion
of the University evaluator presumptive weight. The petition was not granted
except for modification of typographical errors concerning Jasper’s name.
Jasper then filed a notice of appeal to the Workers’ Compensation
Board (“the Board”) pursuant to KRS 342.285. Weddle responded by filing a
motion to dismiss Jasper’s notice of appeal on the grounds that the order was
interlocutory in nature, and that Jasper therefore could not appeal from it.1 Weddle
received the result it sought, as the Board dismissed the appeal and remanded the
case for further adjudication.
Thereafter, Jasper underwent the proposed fusion surgery (which had
been deemed non-compensable by ALJ Manno) and filed for an extension of time
to offer proof. ALJ Manno granted the motion for an extension of time, and Jasper
submitted additional proof, including the post-surgery deposition of Dr. Lockstadt.
On August 1, 2008, the claim was reassigned to ALJ Edward D. Hays.
ALJ Hays scheduled a benefit review conference for November 19, 2008. On
February 20, 2009, ALJ Hays entered an opinion, award, and order awarding
Jasper permanent total disability benefits and determining that the surgery Jasper
underwent was reasonable and necessary to the work-related injury.
1
Interestingly, Weddle takes a contrary position on appeal. Namely, that the order was final
and, thus, that the doctrine of issue preclusion should now apply.
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Weddle filed a petition for reconsideration which alleged that ALJ
Hays impermissibly “re-litigated” issues which were finally decided by ALJ
Manno. Said petition was denied by ALJ Hays on April 24, 2009. Thereafter,
Weddle appealed to the Board. The Board affirmed the opinion, award, and order
of ALJ Hays. Weddle now petitions this Court for review.
Standard of Review
On review of a decision of the Board, we reverse only if the Board has
overlooked or misconstrued controlling law or has so flagrantly erred in evaluating
the evidence that gross injustice has resulted. Daniel v. Armco Steel Co., 913
S.W.2d 797, 798 (Ky. App. 1995). This effectively requires a review of the ALJ’s
decision. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Where the
ALJ has found in favor of the party bearing the burden of proof, as here, we will
affirm the decision if it is supported by substantial evidence. Special Fund v.
Francis, 708 S.W.2d at 643.
Analysis
The sole issue on appeal is whether the doctrine of issue preclusion
applies to preclude a subsequent ALJ from revisiting an issue previously decided
in an interlocutory order by a former ALJ. More specifically, the issue is whether
the doctrine of issue preclusion would preclude ALJ Hays from revisiting the
interlocutory opinion, award, and order of ALJ Manno, which found that the
proposed disc or fusion surgery was non-compensable.
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However, we need not reach a discussion of issue preclusion in this
case because we find the doctrine of judicial estoppel to be applicable. The
principle acts to estop Weddle’s claim on appeal as Weddle now takes a position
contrary to the position it took earlier in the administrative proceeding. Hisle v.
Lexington-Fayette Urban County Government, 258 S.W.3d 422 (Ky. App. 2008).
See also, T. Scott Belden, Annotation, Judicial Estoppel in Civil Action Arising
from Representation or Conduct in Prior Administrative Proceeding, 99 A.L.R.5th
65 (2002). Judicial estoppel is a quasi-estoppel principle that may “be applied to
prohibit a party from taking inconsistent positions in judicial [or quasi-judicial]
proceedings.” Hisle, 258 S.W.3d at 434; Colston Investment Co. v. Home Supply
Co., 74 S.W.3d 759 (Ky. App. 2001). The formula often applied for this principle
asks whether (1) the party is taking a position clearly inconsistent with an earlier
position, (2) the party succeeded in persuading a court to accept the earlier
position, and (3) the party would derive an unfair advantage if not estopped. Id.
In the present case, after Jasper filed his notice of appeal from ALJ
Manno’s interlocutory opinion, award, and order, Weddle filed a motion to dismiss
on the ground that the interlocutory opinion was not final and appealable, but
subject to change or modification. The Board agreed with Weddle and dismissed
Jasper’s claim. Thus, Weddle succeeded in persuading the Board to accept its
position. Now Weddle attempts to argue that the issues in the order were finally
decided and that ALJ Hays was precluded from revisiting the issues therein. Thus,
according to Weddle, it would appear that Jasper should have had no recourse at
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all. This would be an unfair advantage to Weddle and detriment to Jasper. Thus,
we find that Weddle is barred from advancing this argument on appeal. See, Hisle,
supra.
Accordingly, we affirm the Board’s decision.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Christion Hutson
Paducah, Kentucky
Kenneth B. Fouts, II
Lexington, Kentucky
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