LLOYD POLSON v. ARCH OF KENTUCKY, INC.; DR. GALEN SMITH, SPECIAL FUND HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002391-WC
LLOYD POLSON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-04522
v.
ARCH OF KENTUCKY, INC.;
DR. GALEN SMITH, SPECIAL FUND
(NOW WORKERS’ COMPENSATION FUNDS);
HON. W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
This is an appeal from a decision of
the Administrative Law Judge on remand that certain EMG/NVC
studies of the claimant’s lower back were non-compensable under
KRS 342.020.
1
In affirming that determination, the Workers’
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Compensation Board relied upon Whittaker v. Morgan2 in support of
its conclusion that its review was limited to a determination of
whether the ALJ’s decision on remand properly construed and
applied the directive contained in the March 4, 2005, order of
remand.
Finding no error in the Board’s decision, we affirm.
In March 2005, the Board vacated a ruling of the ALJ
that EMG/NCV studies of appellant Polson’s right lower extremity
were compensable under KRS 342.020.
The Board’s opinion
explained that it appeared that the ALJ’s decision in the
medical fee dispute had been based upon an incorrect view of the
evidence.
Noting that the work-related injuries for which
appellee Arch of Kentucky was responsible had been sustained on
April 5, 1994, and February 8, 1995, the Board concluded that
there was no medical opinion of record expressly relating
Polson’s current right leg radicular complaints to those
injuries.
On remand, the ALJ amended his findings to reflect
his view that the employer had sustained its burden of
demonstrating that the contested EMG/NCV study was noncompensable as the medical evidence indicated that the
claimant’s current right leg radicular complaints stemmed from a
February 1993, back injury unrelated to the work injuries at
issue in the present dispute.
2
52 S.W.3d 567 (Ky. 2001).
-2-
The claimant appealed the ALJ’s decision on remand to
the Board alleging that the February 1993 back injury was in
fact exacerbated by the April 5, 1994, and February 8, 1995,
injuries and thus there was sufficient evidence to support the
previous finding of compensability.
Because the claimant did
not appeal the Board’s initial decision to remand the case to
the ALJ, the Board ruled that its prior opinion was the “law of
the case” precluding the claimant from raising the issue again
after remand.
We agree with the Board’s analysis and affirm.
In Whitaker v. Morgan,3 the Supreme Court of Kentucky
reaffirmed the principle that the only questions subject to
appeal following remand are issues related to whether the ALJ
properly construed and applied the order of remand:
In Williamson v. Com., Ky., 767 S.W.2d 323,
325 (1989), we explained that a party who is
aggrieved by an adverse appellate
determination must appeal at the time the
decision is rendered because an objection on
remand is futile, and an appeal from the
implementation of the appellate decision on
remand amounts to an attempt to relitigate a
previously-decided issue.
Because the claimant failed to appeal the Board’s March 5, 2005,
ruling and there is no question that the ALJ properly construed
and applied the remand order contained in that decision, the
Board properly refused to allow him to relitigate in this appeal
matters finally concluded by that opinion.
3
Id. at 569.
-3-
The opinion of the Worker’s Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edmond Collett
Monica Rice Smith
Hyden, Kentucky
Ralph D. Carter
Hazard, Kentucky
-4-
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