ROCKCASTLE COUNTY HOSPITAL v. EDITH Y. PRICE; WORKERS' COMPENSATION BOARD; AND ROBERT WHITTAKER, DIRECTOR OF THE SPECIAL FUND ROBERT L. WHITTAKER, DIRECTOR OF THE SPECIAL FUND v. ROCKCASTLE COUNTY HOSPITAL AND RESPIRATORY CENTER; EDITH PRICE; SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD CROSS-
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RENDERED: October 29, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000405-WC
ROCKCASTLE COUNTY HOSPITAL
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-21275
EDITH Y. PRICE;
WORKERS' COMPENSATION BOARD;
AND ROBERT WHITTAKER, DIRECTOR
OF THE SPECIAL FUND
AND
NO.
1999-CA-000614-WC
ROBERT L. WHITTAKER, DIRECTOR
OF THE SPECIAL FUND
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-95-21275
ROCKCASTLE COUNTY HOSPITAL
AND RESPIRATORY CENTER;
EDITH PRICE; SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION AFFIRMING
** ** ** ** **
BEFORE:
APPELLEES
KNOPF, MILLER, AND SCHRODER, JUDGES.
CROSS-APPELLEES
SCHRODER, JUDGE:
An employer petitions for, and the Special Fund
cross-petitions for, a review of an opinion of the Workers’
Compensation Board (Board) which affirmed in part an award to an
injured employee.
The Administrative Law Judge (ALJ) awarded the
injured employee 40% permanent partial disability for a left knee
injury and the development of carpal tunnel syndrome.
The Board
remanded in part for the ALJ to discuss and decide the
relationship, if any, between the employee’s low back complaints
and her work-related trauma.
As a result of that remand, the ALJ
must make additional findings of fact and may or may not increase
the award, depending on the findings that are still to be made.
With the recent Supreme Court case of Davis v. Island
Creek Coal Co., Ky., 969 S.W.2d 712 (1998), “[T]he final and
appealable analysis in CR 54 has no application to the board’s
orders.”
Id. at 713.
Even though the remand in the case sub
judice would not divest the employee of any benefits (it may
actually increase the benefits award), the question this Court
must decide is whether the Board, as an appellate body, erred in
holding that the parties are entitled to a finding of fact on all
relevant issues presented to the ALJ, citing Shields v. Pittsburg
& Midway Coal Mining Co., Ky. App., 634 S.W.2d 685, 687 (1992).
Under Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687
(1992), the Board “. . . is suppose to decide whether the
evidence is sufficient to support a particular finding made by
the ALJ, or whether such evidence as there was before the ALJ
should be viewed as uncontradicted and compelling a different
result.”
Also,
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the body performing further review is there
to address new problems, not to redecide the
same evidentiary questions.
The WCB is entitled to the same deference for
its appellate decisions as we intend when we
exercise discretionary review of Kentucky
Court of Appeals decisions in cases that
originate in circuit court. The function of
further review of the WCB in the Court of
Appeals is to correct the Board only where
the the [sic] Court perceives the Board has
overlooked or misconstrued controlling
statutes or precedent, or committed an error
in assessing the evidence so flagrant as to
cause gross injustice.
Id. at 687, 688.
Under Shields, 634 S.W.2d at 440, the employee is
entitled to a consideration with findings as to the relationship,
if any, between the low back complaints and her work-related
trauma.
Therefore, we affirm the Board’s remand on direct appeal
and affirm the Board’s findings on cross-appeal.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLEE, EDITH Y. PRICE:
Roberta K. Kiser
Lexington, Kentucky
Jackson W. Watts
Versailles, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLANT, ROBERT L.
WHITTAKER, DIRECTOR OF THE
SPECIAL FUND:
David W. Barr
Louisville, Kentucky
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