LINK BELT v. GARY CHAD CAMPBELL; HONORABLE R. SCOTT BORDERS, ADMNISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
December 3, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000868-WC
LINK BELT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-58192
GARY CHAD CAMPBELL;
HONORABLE R. SCOTT BORDERS,
ADMNISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
Link Belt appeals from an opinion of the
Workers’ Compensation Board (“the Board”) affirming in part,
vacating in part, and remanding a decision of the Administrative
Law Judge (“ALJ”).
The ALJ awarded Gary Chad Campbell
(“Campbell”) permanent partial disability benefits (“PPD”) for
injuries sustained to the cervical and lumbar spine.
The issues
on appeal to the Board were whether an L1 fracture and secondary
lumbar injury were work-related.
The Board opined that the ALJ
correctly found that the L1 fracture was brought into disabling
reality by the work injury, but it vacated and remanded on the
issue of whether the L5 – S1 pain was work-related.
After reviewing
the parties’ briefs on appeal, this Court entered a show cause
order as to why this case should not be dismissed as being taken
from a non-final and appealable order.
Link Belt responded and
argued that “[i]n the claim sub judice, the original opinion was
issued on December 20, 2002.
Since that time the Appellee’s
potential right to indemnity for the L1 fracture has been held
up in the appeals process[.]
Likewise, the Appellant’s
potential liability for indemnity has continued to expand at the
rate of 12% per annum pursuant to KRS 342.
These potential
rights and obligations are in no way influenced by the
adjudicative status of the L5-S1 injury.”
a responsive pleading.
Campbell did not file
Having reviewed this matter, we do not
believe that Link Belt has shown sufficient cause why this
matter should not be dismissed.
In order to avoid piecemeal
litigation, we believe the issue as to the L5-S1 injury needs to
be resolved before this case can be presented for appellate
review.
Therefore, for the reasons stated herein, we must
dismiss the instant appeal.
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On May 23, 2002, Campbell filed an Application for
Resolution of Injury Claim with the Department of Workers’
Claims.
He alleged that on December 7, 2000, he suffered an
injury to his neck and back during the course of his employment
with Link Belt.
Campbell’s job at Link Belt required him to engage in
medium to heavy manual labor while painting construction
equipment.
Campbell testified that on the date in question, he
was struck in the head by a large commercial door that was
closing from its overhead position.
Campbell stated that he
fell to his knees and experienced immediate neck pain. He
testified that later the same day he felt his low back pop while
lying in bed.
Campbell visited an emergency room the following day
and was referred to Dr. Menke.
He was taken off work, and had
cervical and lumbar x-rays taken on December 15, 2000.
In
February, 2001, Campbell was laid off by Link Belt, but
subsequently was rehired in a position requiring light duty
labor.
Campbell sought treatment from Dr. Lockstadt in March,
2001.
Dr. Lockstadt determined that Campbell sustained a
probable disc level strain at C4-5 or C5-6 without nerve root
compression, and prescribed exercise, anti-inflammatory
medication, and a cervical injection.
He stated that Campbell
could lift up to 30 pounds occasionally, should not bend or
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twist, and should change positions at work every half-hour.
The
record indicates that Campbell testified he never had any pain
or other medical condition in his neck or back prior to the date
of injury, and now has constant pain.
On April 24, 2001, Dr. Lockstadt assigned to Campbell
an 8% whole person impairment based on DRE Cervical Category II
pursuant to the AMA Guides, fifth edition.
He observed some
improvement in Campbell’s condition, and continued to evaluate
him over the following months.
On June 26, 2002, Campbell complained to Dr. Lockstadt
of severe low back pain at the lumbosacral junction.
This level
of pain had not previously been experienced by Campbell.
Dr.
Lockstadt believed the problem was mechanical instability, and
prescribed an epidural injection.
On May 2, 2002, Campbell was examined by Dr. Templin
at the request of Campbell’s counsel.
Dr. Templin stated that
the December 15, 2000, x-ray revealed a compression fracture of
L1 with degenerative changes and/or disc narrowing at T12 – L1.
He diagnosed chronic cervical, low back and thoracic pain
syndromes, and three cervical disc bulges, and assigned a whole
body impairment of 13% pursuant to the AMA Guides.
The rating
represented 8% for a DRE Cervical Category II and 5% for a DRE
Lumbar Category II.
In deposition, Dr. Templin later stated
that, in his opinion, the L1 fracture pre-existed the work
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injury.
He opined that the fracture and degenerative changes
were pre-existing dormant conditions aroused into disabling
reality by the December 7, 2000, work injury.
At the request of Link Belt, Campbell was examined by
Dr. Kriss on August 16, 2002.
He determined that Campbell had
an 8% impairment rating arising from the cervical injury, but
that Campbell had a normal lumbar examination indicating no
impairment rating arising from the lower back.
Like Dr.
Templin, Dr. Kriss believed that the L1 fracture pre-existed the
work injury.
He stated that he believed Campbell was
experiencing low back pain, but that it appeared to arise from a
soft tissue strain.
His conclusions were based in part on the
fact that the cervical and low back pain were not anatomically
connected because the cervical pain was well above L1 and the
low back pain was well below L1.
The matter went before the ALJ, who was persuaded by
Dr. Templin’s opinion that Campbell sustained a 13% impairment
rating as a result of the work injury.
benefits.
The ALJ awarded PPD
Link Belt filed a timely petition for
reconsideration, arguing that Campbell’s lumbar impairment
rating was not changed by the injury, and that it was erroneous
to attribute the onset of L5 – S1 symptomatology to the injury
occurring 18 months earlier.
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On January 21, 2003, the ALJ denied the petition for
reconsideration. The ALJ was more persuaded by the reports of
Drs. Templin and Menke who believed that the work-related lumbar
injury resulted in permanent partial disability.
Link Belt appealed to the Board from the ALJ’s opinion
and award, and from the denial of the motion for
reconsideration.
After the matter was remanded to the ALJ for a
resolution of a medical fee dispute, the Board rendered an
opinion on April 7, 2004, which forms the basis for the instant
appeal.
Upon considering the record, the Board found the ALJ’s
conclusion that the L5 - S1 condition was work-related was
unsupported by substantial evidence.
Rather than reversing on
this issue, it remanded the matter to the ALJ as it found that
the ALJ had failed in considering the effect, if any, of Dr.
Lockstadt’s opinion as to work-relatedness of the L5 – S1
condition.
The Board ordered the ALJ to consider whether Dr.
Lockstadt’s testimony did or did not support a finding that the
lumbar condition was work-related.
It went on to affirm the
ALJ’s opinion and award of PPD benefits calculated on the basis
of a 13% impairment rating.
This appeal followed.
Link Belt now argues that the Board erred in affirming
the ALJ’s conclusion that the work injury brought the L1
fracture into disabling reality and is therefore compensable.
It notes that Dr. Templin assigned a DRE lumbar category II
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rating to the fracture, but maintains that there is no evidence
anywhere in the record that there exists a 25% to 50%
compression of a vertebral body as the AMA Guides requires for a
category II rating.
Since such a rating may be assigned based
on either symptoms and diagnostic test, or based on the presence
of a fracture, and as it is Link Belt’s belief that Campbell
showed no symptoms, it concludes that the Board erred in
sustaining an award based on a category II rating since nothing
in the record shows a 25% to 50% compression as the Guides
require.
As such, Link Belt requests an order reversing the
Board on this issue.
Having thoroughly reviewed this matter, including Link
Belt’s response to this Court’s show cause order, we 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.”
CR 54.01.
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
claims and the rights and liabilities of all
the parties.
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CR 54.02.
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 affirm in part, and
vacate and remand in part did not terminate the action itself,
decide the matter litigated by the parties, or divest the Board
of power.
While the Board’s opinion affirmed the ALJ on the L1
fracture issue, the remanded L5 – S1 issue obviously 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 April 7, 2004, opinion is not final and
appealable.
For the foregoing reasons, Link Belt’s appeal of the
Workers’ Compensation Board’s April 7, 2004, opinion is ordered
dismissed.
ENTERED: __December 3, 2004_
__/s/ Daniel T. Guidugli_
JUDGE, COURT OF APPEALS
COMBS, CHIEF JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS IN RESULT AND FILES SEPARATE
OPINION.
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KNOPF, JUDGE, CONCURRING IN RESULT:
I agree that the
Board’s order in this case was not final and appealable, but I
write separately because I believe the majority has applied the
wrong standard.
In reaching its conclusion, the majority relies
upon King Coal Company v. King, Ky. App., 940 S.W.2d 510 (1997),
discussing the standard for determining whether the Board has
issued a final order.
However, King Coal Co. relied in turn
upon Stewart v. Lawson, Ky., 689 S.W.2d 21 (1985), which the
Kentucky Supreme Court overruled in Davis v. Island Creek Coal
Co., Ky., 969 S.W.2d 712 (1998).
In Stewart, the Court suggested that a workers’
compensation order by the circuit court was not final because it
only remanded the case for further findings and did not make a
final disposition by way of terminating the action.
The Court
in King Coal Co. v. King, supra, followed this holding.
But the
Supreme Court in Davis v. Island Creek Coal Co., supra, rejected
this approach on several grounds.
The Supreme Court first
found, contrary to the holding of Stewart v. Lawson, that CR 54
has no application in determining whether an order by the Board
is final and appealable.
Id. at 713.
Moreover, the Court in
Davis went on to hold that a Board order is final and appealable
only if it divests a party of a vested right.
Thus, an order
setting aside an award of benefits and remanding with directions
to take additional proof and make additional findings of fact is
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final and appealable even though it does not make a final
disposition of the claim.
Id. at 714.
In this case, the Board affirmed the ALJ’s holding
that Campbell’s L1 fracture was work-related, but remanded the
matter to the ALJ to consider whether Dr. Lockstadt’s testimony
supported a finding that the lumbar condition was work-related.
Clearly, the Board’s order divested Campbell of a vested right.
However, only Link Belt has appealed from the Board’s order.
Because the Board’s order did not divest Link Belt of any vested
right, I agree that the Board’s order was not final and
appealable under the rule set out in Davis.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald C. Walton
Thomas C. Donkin
Lexington, KY
W. Kenneth Nevitt
Louisville, KY
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