INDUSTRIAL POWDER COATING v. RICHARD BAKER; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
December 23, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000781-WC
INDUSTRIAL POWDER COATING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-93851
RICHARD BAKER; HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
GUIDUGLI, TACKETT AND VANMETER, JUDGES.
GUIDUGLI, JUDGE:
Industrial Powder Coating appeals from an
opinion of the Workers’ Compensation Board reversing and
remanding a decision of the Administrative Law Judge awarding
total occupational disability benefits for a work-related knee
injury.
Baker argued before the Board that the ALJ erred in
failing to award medical benefits for a low back condition, and
erred in failing to begin the award of total occupational
disability benefits as of the date of the motion to reopen.
For
the reasons stated herein, we dismiss the appeal.
On September 8, 1997, Baker injured his right knee in
the course of his employment with Industrial Powder Coating.
He
filed a claim for benefits, which resulted in a settlement
assessing an 11% functional impairment rating.
The settlement
was approved on September 14, 1999.
The following year, Baker moved to reopen the claim
and filed a second claim alleging that he sustained additional
injuries on November 2, 1999 and February 23, 2000.
The matter
went before the ALJ, who rendered an opinion on January 29,
2001, denying the claim for additional benefits.
The ALJ opined
that the new claim for benefits arising from the November 2,
1999, and February 23, 2000, incidents was not sustained by
objective medical evidence.
Rather, the ALJ concluded that the
two incidents resulted in a temporary exacerbation of the
September, 1997 right knee injury.
Baker’s employment with Industrial ended in early
2002.
Later that year he briefly worked for Parts Unlimited
making automobile door panels, but quit because his knee injury
apparently prevented him from working.
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On June 1, 2001, Baker filed a motion to reopen in
which he again claimed a worsening of his physical condition and
resultant increase in occupational disability.
He tendered
additional proof indicating that his condition required right
knee replacement surgery.
He also argued that he now suffered
from low back pain and numbness in both legs, which he
attributed to his unnatural gait caused by his knee injury.
Upon considering the motion, the ALJ rendered an order
and award on December 17, 2001, finding that the surgery was
medically necessary and awarding total disability benefits
commencing January 25, 2001.
She went on to find that Baker had
not met the burden of proof necessary to prevail on the back
pain issue, and noted that no impairment rating had been given
for the back condition. The knee surgery was performed on
January 25, 2002.
Baker and Industrial each filed petitions for
reconsideration from the December 17, 2001, order and award.
Baker contended that the ALJ erred in dismissing the back injury
claim, and Industrial argued that the total occupational
disability benefits should commence on the date of the knee
replacement surgery rather on January 25, 2001 as ordered by the
ALJ.
On November 14, 2003, the ALJ rendered an order denying
Baker’s claim for additional back injury benefits, and
correcting a typographical error as Industrial had requested.
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Baker appealed to the Board, arguing that the ALJ
erred in not awarding medical treatment for his back condition
and for not ordering the benefits to commence as of the date of
the motion to reopen.
Upon taking proof, the Board rendered an
opinion on March 17, 2004, which forms the basis of the instant
appeal.
The Board found that because the evidence was
conflicting as to the work-relatedness of the back injury, and
because the temporary nature of the injury does not render the
condition non-work-related, the ALJ should have explained her
findings in light of the medical evidence.
Alternatively, it
ruled that if the ALJ finds on remand that the back condition
was work-related, then Baker would be entitled to medical
benefits related to the back problem.
On the issue of whether the ALJ erred in failing to
order the award of benefits to commence on May 25, 2001 (the
date of the motion to reopen) rather on January 25, 2002 (the
date of the knee surgery), the Board found that the evidence was
so overwhelming as to compel a finding in Baker’s favor.
It
noted that Baker’s condition improved following knee surgery and
that the only logical conclusion to be drawn from the evidence
was that his condition was worse prior to surgery.
The Board reversed the ALJ’s opinion and award, and
remanded it for further findings on the issue of workrelatedness of the back injury, and for an award of benefits
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commencing as of the date of the motion to reopen.
This appeal
followed.
Industrial now argues that the Board erred in finding
the totality of the medical evidence so compelling as to require
a reversal of the ALJ regarding the award commencement date.
Citing KRS 342.285(2)(d)(e), it maintains that there is nothing
in the record to indicate that the ALJ’s decision on this issue
was erroneous based on the reliable and probative material
evidence submitted in this case.
Industrial contends that the
Board did not point to any evidence that would compel a contrary
finding, and argues that it is entitled to a reversal on this
issue.
Having closely examined the record and the law, we
must conclude that the Board’s opinion is not final and
appealable.
“A final or appealable judgment is a final order
adjudicating all the rights of all the parties in an action or
proceeding, or a judgment made final under Rule 54.02.”1
The judgment shall recite . . . that the
judgment is final. In the absence of such
recital, any order or other form of
decision, however designated, which
adjudicates less than all the claims or the
rights and liabilities of less than all the
parties shall not terminate the action as to
any of the claims or parties, and the order
or other form of decision is interlocutory
and subject to revision at any time before
the entry of judgment adjudicating all the
1
CR 54.01.
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claims and the rights and liabilities of all
the parties.2
Furthermore, we stated in King Coal Company v. King, Ky.
App., 940 S.W.2d 510 (1997) that,
Pursuant to SCR 1.030(5) and 803 KAR 25:012
§ 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.
In the matter at bar, the Board’s action to reverse
and remand for further findings on the issue of the workrelatedness of the back injury did not terminate the action
itself, decide the matter litigated by the parties, or divest
the Board of power.
While the Board ruled in favor on Baker on
the commencement date issue, the remanded back injury issue
remains to be resolved.
As the Board still has or will have
jurisdiction over not only the remanded issue but the entire
claim for benefits, its March 17, 2004, opinion is not final and
appealable.
For the foregoing reasons, Industrial’s appeal of the
Workers’ Compensation Board’s March 17, 2004, opinion is ORDERED
DISMISSED.
ALL CONCUR.
2
Id.
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ENTERED: __December 23, 2004__
__/s/_DANIEL T. GUIDUGLI
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas L. Ferreri
Lance Owen Yeager
Louisville, KY
Wayne C. Daub
Louisville, KY
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