FULTON COUNTY FISCAL COURT v. ROBERT E. HOPPER, JR.; HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 29, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000024-WC
FULTON COUNTY FISCAL COURT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-93061
ROBERT E. HOPPER, JR.;
HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, McANULTY, AND MINTON, JUDGES.
McANULTY, JUDGE:
Fulton County Fiscal Court (Fulton County) has
petitioned for review of an order of the Workers’ Compensation
Board (Board) entered on December 3, 2004, that summarily
dismissed its appeal of an opinion and order of the
Administrative Law Judge (ALJ) rendered September 7, 2004, and
opinion on petition for reconsideration, rendered October 28,
2004, against Robert E. Hopper, Jr. (Hopper), as interlocutory.
Before us, Fulton County argues alternatively that the Board
erred in dismissing its appeal and that it was deprived of its
due process right of review.
We affirm.
As the material facts in the case are not at issue,
the ALJ’s statement of the case, contested issues, and
conclusions of law in the September 7, 2004, opinion and order
succinctly set forth the necessary background:
STATEMENT OF THE CASE
In this bifurcated claim, Robert
Hopper, Jr. claims benefits arising from a
motor vehicle accident on February 26, 2003.
He claims that, on that date, he was acting
in the course and scope of his duties as a
volunteer deputy sheriff when the unmarked
police car he was driving struck a deer
while traveling at a high rate of speed,
injuring him and his friend and passenger,
Mike Woods. As a result of that collision,
(Hopper) suffered major injuries which left
him paralyzed for a period of time. . . .
CONTESTED ISSUES 1
The only issues to be decided at this
point are:
1.
Whether (Hopper’s) injury occurred in
the course and scope of his employment; and
2.
Average weekly wage. . . .
CONCLUSIONS OF LAW
[Kentucky Revised Statutes] KRS 342.0011(1)
KRS 342.140(3)
ORDER
IT IS HEREBY ORDERED AND ADJUDGED as
follows:
1
These two issues resulted from bifurcation of the six contested issues at
the March 9, 2004, benefit review conference. Contested issues remaining to
be decided were extent and duration; temporary total disability (TTD); KRS
342.165 safety violation; and medicals.
-2-
1.
(Hopper’s) February 26, 2003 motor
vehicle accident occurred in the course and
scope of (Hopper’s) employment as a
volunteer deputy sheriff and he is therefore
entitled to benefits under KRS 342 for a
covered injury.
2.
(Hopper’s) average weekly wage at
the time of his injury was $0.
3.
The parties have 45 days from the
date of this Opinion and Order to agree on a
further litigation plan, to settle the case,
or to show cause why a final hearing should
not be scheduled at the earliest available
date.
On petition for reconsideration by both parties, the ALJ ordered
that Hopper’s name in the caption be corrected, but that “(a)ll
other findings set forth in the Opinion issued September 7, 2004
remain unchanged.”
Fulton County appealed the ALJ’s opinion and order to
the Board.
On December 3, 2004, the Board, on motion by Hopper,
dismissed the appeal as interlocutory.
This petition for review
followed.
Our standard of review of a decision of the Board “is
to correct the Board only where the 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.”
Western Baptist Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Having reviewed
the Board's application of the law, we conclude that the Board
committed no error.
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It is Fulton County’s position that the ALJ’s decision
that Hopper was acting in the course and scope of his employment
at the time of the accident should be reviewed at this point in
time and not after the remainder of the contested issues have
been decided.
Fulton County contends that the relief it
requests is in the interest of judicial economy, and submits
that without review of this issue at this time, it is subject to
a deprivation of due process.
At issue, ultimately, is whether the ALJ’s opinion and
order constituted a final order.
For the following reasons, we
believe it was not.
In Whittaker v. Wright, 969 S.W.2d 209, 211 (Ky.
1998), the Kentucky Supreme Court stated that there is no basis
for treating a workers’ compensation appeal any differently than
a civil appeal, thus whether an order is final is determined in
accordance with Kentucky Rules of Civil Procedure (CR) 54.02, a
view also expressed in the workers’ compensation regulations.
803 Kentucky Administrative Regulations (KAR) 25:010 § 21
provides:
Review of Administrative Law Judge
Decisions. . . .
(2) Time and format of notice of
appeal . . . .
(b) As used in this section, a final award,
order or decision shall be determined in
accordance with Civil Rule 54.02(1) and (2).
-4-
As such, we look at whether the ALJ’s opinion and order are
final pursuant to CR 54.02.
CR 54.02(1) provides:
When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim, or when multiple parties are
involved, the court may grant a final
judgment upon one or more but less than all
of the claims or parties only upon a
determination that there is no just reason
for delay. The judgment shall recite such
determination and 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.
(Emphasis added.)
The ALJ’s opinion and order did not recite that it was
final; in fact, it gave the parties forty-five days to agree on
a further litigation plan, to settle the case, or to show cause
why a final hearing should not be scheduled.
Pursuant to CR
54.02(1), therefore, it was interlocutory. 2
2
Additionally, pursuant to Kentucky Revised Statutes (KRS) 342.275(2), an
ALJ’s award, order, or decision subject to appeal to the Board, pursuant to
KRS 342.285, is one rendered following the final hearing. There has not been
a final hearing herein; at the benefit review conference, the parties agreed
to bifurcate the proceedings.
-5-
As interlocutory, the Board’s dismissal of the appeal
was proper.
In Reisinger v. Grayhawk Corporation, 860 S.W.2d
788, 790 (Ky. App. 1993), the court stated:
CR 54.02 has been held to require dismissal
of an appeal where the record showed that
the order did not adjudicate the rights of
all the parties in the action and other
matters remained to be adjudicated. Signer
v. Arnold, Ky., 436 S.W.2d 493 (1969). In a
recent case, this Court noted that an order
allowing attorney fees, but not providing
for a distribution of funds to the attorney,
is not a “final order” from which an appeal
will lie. As such, the order was
interlocutory, and judicial economy
necessitates this rule. Revenue Cabinet v.
Barbour, Ky.App., 836 S.W.2d 418 (1992).
In the case at bar, the order of the
ALJ 3 was interlocutory. It did not
adjudicate finally the rights of any of the
parties and, as such, does not meet the test
of CR 54.02 to be deemed “final” . . .
We also disagree that the Board’s dismissal of the
appeal of the ALJ’s opinion and order deprives Fulton County of
substantive and procedural due process.
Upon disposition of all
the claims in the case, Fulton County will have the opportunity
to appeal the issue in the ALJ’s September 7, 2004, opinion and
order.
CR 54.02(2) provides:
When the remaining claim or claims in a
multiple claim action are disposed of by
judgment, that judgment shall be deemed to
readjudicate finally as of that date and in
the same terms all prior interlocutory
orders and judgments determining claims
3
Denying motions for a protective order, to quash, and to prohibit the taking
of a deposition.
-6-
which are not specifically disposed of in
such final judgment.
Fulton County has cited no persuasive authority to the contrary.
Pursuant to Western Baptist Hospital, supra,
therefore, we can find no error in the Board’s decision.
For the foregoing reasons, the order of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Denis S. Kline
Ferreri & Fogle
Louisville, Kentucky
Jackson W. Watts
Versailles, Kentucky
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