ROBERT L. WHITTAKER, Director of SPECIAL FUND V. GLENN O. MORGAN; COSTAIN COAL, INC., Now Lodestar Energy, Inc.; Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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2000-SC-1018-WC
ROBERT L. WHITTAKER,
Director of SPECIAL FUND
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 2000-CA-000763-WC
WORKERS’ COMPENSATION BOARD NO. 95-23949
GLENN 0. MORGAN;
COSTAIN COAL, INC., Now
Lodestar Energy, Inc.;
: DONALD G. SMITH,
Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING AND REMANDING
The claimant sought benefits for coal workers’ pneumoconiosis and settled the
matter with the employer and the Special Fund for a 75% occupational disability. Later,
he successfully reopened the claim due to increased pulmonary impairment and was
awarded a total disability against which no credit was given to the defendants for
overlapping benefits that were payable under the settlement. A petition for
reconsideration by the Special Fund requested such a credit but was overruled. This
appeal concerns whether a decision of the Workers’ Compensation Board (Board) that
the matter must be remanded for the calculation of a credit and that the credit must be
calculated under KRS 342.125(5)(b) rather than as directed in Whittaker v. Rowland,
Ky., 998 S.W.2d 479 (1999) is final and appealable. The Court of Appeals has
determined that it is not.
The claimant filed a claim for benefits due to coal workers’ pneumoconiosis
wherein he alleged a last exposure of March 10, 1995. On January 8,1996, after the
parties had taken evidence, they agreed to a settlement which provided that the
employer would pay a lump sum of $16572.00 and that the Special Fund would pay a
total of $X9,71 8.63 in periodic payments of $155.98 per week for 318.75 weeks.
On April 21, 1998, the claimant moved to reopen. The motion was granted, and
further evidence was taken. Comparing the claimant’s status at reopening with that at
the time of settlement, the Administrative Law Judge (ALJ) determined that the claimant
had suffered from category l/O pneumoconiosis and that his spirometric values would
have entitled him to income benefits for a 75% permanent, partial disability when he
settled the initial claim. At reopening, he suffered from category l/O disease, and his
spirometric values entitled him to income benefits for total disability. The claimant was,
therefore, awarded income benefits for total disability, and the defendants were given
credit “for any payment of such compensation heretofore made.” The ALJ
subsequently overruled a petition for reconsideration in which the Special Fund pointed
out that the award was silent about a credit against the award for overlapping payments
under the terms of the settlement and asserted that the credit should equal income
benefits for the claimant’s actual occupational disability at settlement regardless of the
amount for which he settled. See Whittaker v_ Rowland, KY., 998 S.W.2d 479 (1999).
Appealing to the Board, the Special Fund again asserted its entitlement to credit
for income benefits based upon the claimant’s actual occupational disability at
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settlement. This argument was rejected by the Board. Although the Board agreed that
the defendants were entitled to a credit and reversed the ALJ in that regard, it pointed
out that Whittaker v, Rowland, supra, involved an award for an injury that was made
under KRS 342.730. In contrast, the claimants award was made under KRS 342.732
because it was for pneumoconiosis and, therefore, the credit must be calculated under
KRS 342.125(2)(b) which specifically dealt with issues of credit in reopened
pneumoconiosis awards. The Board remanded the matter to the ALJ for the calculation
of a credit under KRS 342.125(2)(b); whereupon, the Special Fund appealed.
In a 2 to 1 decision, the Court of Appeals determined that the Board’s decision
was not a final order and, therefore, was not appealable. -4-j Ky., 563
Hook v Hook
S.W.2d 716 (1978). A dissenting opinion concluded, however, that the decision was
final and appealable under the criteria set forth in Davis v. Island Creek Coal Co., Ky.,
969 S.W.2d 712 (1998). This appeal by the Special Fund followed.
Hook v Hook
-A-1 supra, determined that where an order by its very nature is
interlocutory, even the inclusion of recitals under CR 54.02, that the order is final and
appealable and that there is no just cause for delay, will not render it so. Hook
concerned whether a circuit court order was final and appealable where it determined
only that the court had jurisdiction to consider modification of an order by a foreign
jurisdiction that granted custody of a minor child. In Davis v. Island Creek Coal Co.,
supra, we determined that the final and appealable analysis in CR 54 does not apply to
the Board’s orders. Id. at 713. We also determined that where a decision of the Board
sets aside an ALJ’s decision and either directs or authorizes the ALJ to enter a different
award upon remand, it divests the party who prevailed before the ALJ of a vested right
and, therefore, the decision is final and appealable to the Court of Appeals.
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Here, the Board agreed with the Special Fund that the defendants were entitled
to credit against the income benefits that were awarded at reopening for benefits that
were awarded under the settlement, and it reversed the ALJ’s decision to the contrary.
The Board determined, however, that the credit must be calculated as set forth in
KRS 342.125(2)(b), rejecting the Special Fund’s argument that Whittaker v_ Rowland,
supra, controlled the amount of the credit. The Board, therefore, remanded the claim
and ordered the ALJ to award a credit under KRS 342.125(2)(b) for benefits that were
payable under the settlement. Although the manner in which the Board ordered the
credit to be calculated was different from the manner that was advocated by the Special
Fund, the Board’s decision divested the claimant of his victory before the ALJ on the
question of credit and did not divest the Special Fund of anything that the ALJ had
previously decided in its favor. It was the Special Fund, not the claimant, who appealed
to the Court of Appeals and asserted that the Board had erred with regard to the
manner in which the credit should be calculated. Thus, neither Hook v. Hook, supra,
nor s u p v. Island i- Coal e c t l y
Davis r a , Creek - A,
s d i r Co
o n
p o i n t .
The question presented by this appeal is more accurately analyzed in terms of
whether, if the Special Fund had failed to appeal the Board’s decision with regard to the
legal question concerning the manner in which the credit should be calculated, it would
have been precluded by the “law of the case” doctrine from raising the issue again after
the ALJ’s decision on remand. In Williamson v. Corn., KY., 767 S.W.2d 323, 325
(1989), we explained that a party who is aggrieved by an adverse appellate
determination must appeal at the time the decision is rendered because an objection on
remand is futile, and an appeal from the implementation of the appellate decision on
remand amounts to an attempt to relitigate a previously-decided issue. See also
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lnman v lnman Ky., 648 S.W.2d 847, 849 (1982). In view of the fact that the Board
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decided the legal question that was raised by the Special Fund and rejected its
argument, the questions subject to appeal following the remand would have been
limited to whether the ALJ properly construed and applied the order of remand. Had
the Special Fund failed to appeal the adverse determination by the Board, that
determination would have become the law of the case and, therefore, would have
precluded a subsequent appeal of the issue. For that reason, the Board’s decision was
ripe for appeal.
The decision of the Court of Appeals is hereby reversed, and this matter is
remanded to the Court of Appeals for a decision on the merits.
All concur.
COUNSEL FOR APPELLANT:
Hon. John William Burrell
Labor Cabinet, Special Fund
1040 U.S. Highway 127 South, STE 4
Frankfort, KY 40601-9979
COUNSEL FOR APPELLEE MORGAN:
Hon. John S. Sowards, Jr.
WILSON, SOWARDS, POLITES. & McQueen
200 West Vine Street, Suite 610
Lexington, KY 40507
COUNSEL FOR APPELLEE COSTAIN COAL ETC.:
Hon. Richard M. Joiner
MITCHELL, JOINER, & HARDESTY, P.S.C.
113 E. Center Street
P.O. Drawer 659
Madisonville, KY 42431
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