BILL AND CAROLYN MCCALL D/B/A SOUTHSIDE LAUNDROMAT v. CATHERINE COX; DEPARTMENT OF WORKERS' CLAIMS, WORKERS' COMPENSATION BOARD; AND HONORABLE SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE
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RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000438-WC
BILL AND CAROLYN MCCALL
D/B/A SOUTHSIDE LAUNDROMAT
APPELLANTS
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-48636
v.
CATHERINE COX; DEPARTMENT OF
WORKERS' CLAIMS, WORKERS'
COMPENSATION BOARD; AND
HONORABLE SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND MCANULTY, JUDGES.
DYCHE, JUDGE.
This is the second trip for this case to this
court; our duty, as we see it, is to determine if the award made
by the Administrative Law Judge (“ALJ”) is supported by
substantial evidence.
Although the Workers’ Compensation Board
(“Board”) found that to be the case, it nevertheless remanded to
the ALJ for further findings of fact to support the award.
We
believe such findings to be unnecessary, and vacate the Board’s
opinion and remand for an opinion affirming the ALJ.
The initial award by the ALJ found that the Special
Fund was not a party to the action, and that there was “no basis
for allocating any portion of the liability herein to the Special
Fund.”
On appeal, the Board found that the absence of the
Special Fund, alone, was not sufficient ground to deny
apportionment of some liability to the Fund, if the evidence
justified such an action.
The Board examined the evidence, and
found that the ALJ could have properly found the employer to be
solely liable for the employee’s injuries.
On further review, a
panel of this court found that the Board had overstepped its
bounds, and reweighed the evidence in a manner contrary to the
findings of the ALJ.
The Board was instructed to remand to the
ALJ “to weigh the medical evidence relating to the issue of
apportionment, and to make findings of fact in support of any
decision made with respect to that issue.”
On remand, the ALJ found that the evidence showed that
“but for the preexisting degenerative arthritis, the work-related
accident in 1992 would not have resulted in any permanent
impairment to Ms. Cox.”
All liability would have been
apportioned to the Special Fund, had it been a party.
Since it
was not, the claimant could receive medical benefits, alone, from
the employer.
Unfortunately, the ALJ used the term “unrebutted”
in describing the evidence concerning apportionment.
On appeal, the Board pounced on that term, and
indicated that in its review of the evidence, some apportionment
of liability should have been made to the employer, as the
evidence was not, in actuality, unrebutted.
-2-
The Board
acknowledged that sufficient probative evidence existed in the
record to support the ALJ’s decision.
But the Board reversed the
ALJ and remanded for further findings.
It is time to halt this seemingly endless semantic
process, and acknowledge the parties’ proper place in the scheme
of things.
The ALJ has found that sufficient competent evidence
exists to apportion all of the liability to the Special Fund.
The Board agrees but, because the ALJ misspoke as to the
“unrebutted” nature of the evidence, reverses and remands.
find this unnecessary.
We
We agree that such evidence is in the
record, and supports the ALJ.
The opinion of the Board is
therefore reversed, and this matter is remanded for an opinion
affirming the ALJ.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE
CATHERINE COX:
Allan Weiss
W. Charles Jobson
Louisville, Kentucky
Thomas A. Noe III
Jesse L. Riley, Jr.
Russellville, Kentucky
-3-
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