ROBERT L. WHITTAKER, Director of WORKERS' COMPENSATION FUNDS v. RICHARD KELLER; THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002758-WC
ROBERT L. WHITTAKER, Director of
WORKERS' COMPENSATION FUNDS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-94022
RICHARD KELLER; THOMAS A. NANNEY,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
and ORDER DISMISSING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; HUDDLESTON AND MCANULTY, JUDGES.
EMBERTON, CHIEF JUDGE: The Workers’ Compensation Funds appeals
from an order by the Workers’ Compensation Board.
Richard Keller
sustained a work-related injury on January 26, 1996, and on
February 10, 1997, the parties entered into a settlement
agreement whereby Keller received a lump sum equal to a 30%
occupational disability, 15% of which was to be paid by the
employer and the remaining 15% to be paid by the Workers’
Compensation Funds.
In January 1999, the claim was reopened
after Keller sought temporary total disability benefits as a
result of surgery.
The case was eventually assigned to an ALJ
who concluded that Keller was permanently totally occupationally
disabled.1
The only issue on appeal concerns the Workers’
Compensation Funds’ argument regarding the proper date of the
commencement of Keller’s permanent partial disability and the
credit it seeks for any overlap between the permanent partial
disability represented by the settlement and the award upon
reopening.
The Workers’ Compensation Funds successfully argued to
the Board that the ALJ was required to make findings of fact
regarding the degree of occupational disability that existed at
the time of the settlement and Keller has not filed a crossappeal on this issue.
The second issue before the Board, and
that which is the subject of the present appeal, is whether it
was incumbent on the ALJ to specifically identify the start date
of the 425 week period of permanent partial disability so that an
appropriate credit could be given to the Workers’ Compensation
Funds and, more particularly, the evidence the ALJ could consider
when making its findings.
The Workers’ Compensation Funds argued
to the Board that the ALJ must use the date specified in the SF3A, in this case, April 30, 1996, while Keller contended the only
appropriate date in this case is the date specified in the
original settlement agreement, February 12, 1996.
Confronted
with these two arguments the Board held that neither document is
1
During the pendency of the reopening, Keller and his
employer entered into a settlement of the claim with the issue of
the Workers’ Compensation Funds’ liability remaining open.
-2-
controlling but that the ALJ could discern reasonable inferences
from either.
We quote from its opinion:
Considering the remainder of the evidence and
the fact that the date of February 12, 1996,
appears to be when Keller first began missing
work based upon the evidence of record, the
ALJ could use this date to determine the
beginning of the 425 week period as a
reasonable inference to be drawn from the
remainder of the evidence in conjunction with
this document [the settlement agreement].
While we have thoroughly reviewed this
record, we admit other dates might exist that
would constitute the start date for the 425
week period, although those dates are much
less than clear. Since neither the SF nor M
& C provide any evidence that temporary total
disability benefits were actually paid, even
the existence of an SF3-A would not mandate
the use of that date as the beginning date
but, like February 12, 1996, would call for a
reasonable inference on the part of the ALJ.
Ultimately, upon remand, the ALJ must
make a finding as to the degree of
occupational disability that existed at the
time of settlement based upon the evidence
that existed at the time of settlement and
further must specifically identify the date
upon which permanent partial disability
became due and payable, thus constituting the
beginning date for the 425 weeks. (Citations
omitted).
Contrary to the assertions made by the Workers’
Compensation Funds and Keller on appeal, the Board did not direct
that the ALJ make findings in accordance with either the SF3-A
form or the date specified in the settlement agreement.
In fact
the only final determination it made was that the ALJ is required
to make additional findings.
Only a final order of the Board is
subject to judicial review.
As stated in King Coal Co. v. King:2
2
Ky. App., 940 S.W.2d 510, 511 (1997).
-3-
Pursuant to SCR 1.030(5) and 803 KAR
24:012 §14, a final decision of the Board may
be appealed to this court. An order of the
Board is appealable only if it terminates the
action itself, acts to decide the matter
litigated by the parties, or operates to
determine some rights in such a manner as to
divest the Board of power. An action which
is remanded only for further findings of fact
and not to make a disposition that would
terminate the action, as in the case sub
judice, is not a final and appealable order
within the meaning of CR 54.01. (Citations
omitted).
The opinion and order of the Board made no
determination as to the date upon which permanent partial
disability became due and payable, but remanded the case to the
ALJ for such findings.
The arguments made to this court by both
parties are properly made before the ALJ on remand.
The order of the Board remanding the case to the ALJ
for further findings is not a final and appealable order and the
petition is dismissed.
ENTERED:_August 2, 2002__
__/s/ Thomas Emberton_________
JUDGE, COURT OF APPEALS
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE RICHARD
KELLER:
David R. Allen
Frankfort, Kentucky
Jeanie Owen Miller
Owensboro, Kentucky
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