JAMES STUMP V. RIVERTOWN STEEL; ET AL.
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER-JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : MARCH 18, 2010
NOT TO BE PUBLISHED
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of
2009-SC-000531-WC
JAMES STUMP
V.
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-000101-WC
WORKERS' COMPENSATION BOARD NO . 97-82433
RIVERTOWN STEEL;
HONORABLE JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
VACATING AND DISMISSING
As framed by the parties, this appeal concerns the date from which an
Administrative Law Judge (ALJ) may award temporary total disability (TTD)
benefits in a reopened workers' compensation claim. In the claimant's initial
appeal of the decision at reopening, the Workers' Compensation Board relied
on Bartee v. University Medical Center' to affirm a finding that the claimant's
entitlement to TTD began on the date he filed a motion to reopen . The Board
remanded the claim to the ALJ to determine the date that the period of TTD
1 244 S .W.3d 91 (Ky. 2008) .
ended. The ALJ did so and awarded benefits accordingly. Affirming the
decision, the Board again relied on Bartee. The Court of Appeals affirmed .
The claimant argues that Bartee was decided incorrectly and should be
reconsidered . We vacate the Court of Appeals' decision and dismiss. The
Board decided the issue in the claimant's initial appeal and he failed to take a
timely appeal of the adverse decision . Thus, the law of the case doctrine
precluded him from re-litigating the issue following the remand . The Board
erred by considering the second appeal and the Court of Appeals erred by
failing to vacate and dismiss.
The claimant injured his lower back while working for Rivertown Steel,
Inc., in 1989 . He underwent diskectomy surgeries at L4-5 in 1989 and 1990
but did not wish to undergo a recommended L4-5 and L5-S1 fusion . The
parties agreed to settle the claim in November 1990 for an amount that was
based on a 40% occupational disability, with the claimant reserving his right to
future medical benefits.
The claimant later returned to work for Biologix of River Valley, where he
injured his lower back again on May 3, 1997. He underwent a laminectomy
and diskectomy at L4-5 in July 1997, after which he quit working entirely . He
also underwent a lumbar decompression with diskectomy at L4-5 in 2003.
Finally, in 2004, he underwent a repeat laminectomy as well as a fusion at L45 and L5-S1 .
On January 4, 2005, the claimant filed an application for benefits based
on the injury that occurred at Biologix. On June 22, 2005, he filed a motion to
reopen the settled claim against Rivertown . The ALJ approved a settlement in
which the claimant and Biologix resolved all outstanding issues between them
in September 2006 .
The issues submitted to the ALJ in the reopening included Rivertown's
liability for the 2004 surgery and resulting disability as well as the claimant's
entitlement to TTD related to the surgery. The ALJ found that the 2004
surgery was causally related to the 1989 injury that occurred at Rivertown .
The ALJ based the finding on medical evidence that indicated a fusion was
recommended initially in 1989 ; that the claimant experienced continuous
symptoms of lumbar instability thereafter but continued to refuse to undergo
the procedure until 2004 ; and that the intervening surgeries would not have
caused the instability that gave rise to the need for the fusion . The ALJ refused
to award TTD, reasoning that TTD may be awarded from the date the motion to
reopen is filed but that KRS 342 .125(3) limits the period for seeking TTD to the
period of income benefits, which had expired for the 1989 injury.
The claimant appealed both of the ALJ's legal conclusions . Relying on
KRS 342 .125(4) and Bartee, the Board affirmed with respect to the date for
beginning TTD but reversed and remanded with respect to the ALJ's
interpretation of KRS 342 .125(3) . The Board determined that the period of an
award included both the period of income and medical benefits .
Neither party appealed the Board's decision. Thus, the claim was
remanded to the ALJ, who awarded TTD from June 22, 2005, through
September 23, 2005. The claimant appealed the decision on remand, asserting
that Bartee was decided incorrectly. The Board and the Court of Appeals
rejected the argument and affirmed. We have concluded that they erred by
considering the merits of the appeal because the law of the case doctrine
precluded re-litigation of issues the Board decided in the initial appeal .
The law of the case doctrine applies to former rulings of an appellate
court and concerns the extent to which a decision made at one stage of
litigation is binding at a subsequent stage. Davis v. Island Creek Coal Co. 2 and
Whittaker v. Morgan3 explain that the doctrine applies to the Board's decisions
because its jurisdiction is appellate . The doctrine requires a party wishing to
appeal an adverse decision of the Board to do so at the time the decision is
rendered, i.e., within 30 days of the date on which the Board enters its final
decision. The doctrine precludes an attempt to raise the issue in an appeal
from the implementation of the Board's decision on remand because it
amounts to an attempt to re-litigate the previously-decided issue . 5 Absent a
change in the issues or evidence on remand, the doctrine limits the questions
on appeal to whether the ALJ properly construed and applied the Board's
order.
2 969 S.W.2d 712 (Ky. 1998).
3 52 S.W.3d 567 (Ky. 2001) .
4 KRS 342.290 ; CR 76.25(2) .
5 See Williamson v. Commonwealth, 767 S.W.2d 323, 325 (Ky. 1989) ; Inman v. Inman,
648 S.W.2d 847, 849 (Ky. 1982) .
The decision the Board entered on May 16, 2008, became final because
the claimant failed to take a timely appeal. Thus, the law of the case doctrine
barred re-litigation of the issues the Board decided, including the date for
beginning post-award TTD . The doctrine limited the questions subject to
appeal following the Board's remand to whether the ALJ properly construed
and applied the order of remand.
The decision of the Court of Appeals is vacated and this appeal is
dismissed .
All sitting. All concur.
COUNSEL FOR APPELLANT,
JAMES STUMP:
Wayne C . Daub
600 West Main Street
Suite 300 - The 600 Building
Louisville, KY 40202
COUNSEL FOR APPELLEE,
RIVERTOWN STEEL:
Walter A. Ward
Kristin M. Timperman
Ward, Hocker 8s Thornton, PLLC
World Trade Center
333 West Vine Street
Suite 1100
Lexington, KY 40507
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