Workers’
Compensation Board
OPINION
ENTERED: October 17, 2014
CLAIM NO. 2003-94580
LINDA ELLINGTON PETITIONER
VS. APPEAL FROM HON.
CHRISTOPHER DAVIS,
ADMINISTRATIVE LAW JUDGE
KEMI
and HON. CHRISTOPHER DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AND ORDER
DISMISSING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Linda Ellington (“Ellington”), pro se, filed a Notice of Appeal on
September 22, 2014 without designating any decision or order from which she is
appealing. A benefit review conference
(“BRC”) had been scheduled by Hon. Christopher Davis, Administrative Law Judge
(“ALJ”) to whom the claim had been assigned for October 20, 2014.
A brief recitation of the history of
the claim is necessary. On June 20,
2005, Ellington filed a claim against Hillhouse Natural Farms, LTD
(“Hillhouse”) for a back injury she sustained on February 18, 2003. The workers’ compensation insurer for
Hillhouse at the time of the injury was Kentucky Employers’ Mutual Insurance
(“KEMI”). The claim was assigned to Hon.
A. Thomas Davis, Administrative Law Judge (“ALJ Davis”), who rendered a decision
on January 4, 2006. ALJ Davis awarded
temporary total disability benefits, permanent partial disability benefits and
medical benefits. Hillhouse filed a
petition for reconsideration which was denied.
Hillhouse then filed an appeal to this Board. This Board rendered an opinion affirming ALJ
Davis’ decision on June 16, 2006. The
parties subsequently settled the claim.
A Form 110 settlement agreement was approved by Hon. Donna H. Terry,
Administrative Law Judge on December 3, 2008.
Hillhouse
filed a motion to reopen and medical dispute on April 11, 2011. The parties subsequently entered a settlement
where they agreed Hillhouse would be responsible for payment for no more than
four Lortab pills per day. The parties
also agreed Hillhouse would not be responsible for Miralax or Lidoderm
patches. The Form 110 settlement
agreement was approved by Hon. R. Scott Borders, Administrative Law Judge on
March 29, 2012.
On
July 3, 2014, KEMI filed a motion to reopen, a Form 112 medical dispute, and a motion
to join additional medical providers.
The claim was assigned to the ALJ.
On August 25, 2014, the ALJ entered an order sustaining the motion to
reopen and scheduling a telephonic conference for September 11, 2014. On September 12, 2014, the ALJ entered an
order setting a proof schedule, and setting a telephonic BRC for October 20,
2014. On September 22, 2014, Ellington
filed a notice of appeal.
Because we
conclude this appeal is not from a final and appealable order, it is dismissed.
803 KAR 25:010
Sec. 21 (2)(a) provides as follows:
[w]ithin thirty (30) days of the date a final award, order, or
decision rendered by an administrative law judge pursuant to KRS 342.275(2) is
filed, any party aggrieved by that award, order, or decision may file a notice
of appeal to the Workers’ Compensation Board.
803 KAR
25:010 Sec. 21 (2)(b) defines a final award, order or decision as follows: “[a]s used in this section, a final award,
order or decision shall be determined in accordance with Civil Rule 54.02(1)
and (2).”
Civil Rule
54.02(1) and (2) states as follows:
(1) When more than one claim for relief
is presented in an action . . . 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.
(2) 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 which
are not specifically disposed of in such final judgment.
Hence,
an order of an ALJ is appealable only if: 1) it terminates the action
itself; 2) acts to decide all matters litigated by the parties; and, 3)
operates to determine all the rights of the parties so as to divest the ALJ of
authority. Tube Turns Division vs.
Logsdon, 677 S.W.2d 897 (
Apparently,
Ellington filed this appeal because she is fearful of an interruption of
medical care. While this may constitute
a valid concern, there are no issues currently ripe for appeal. The ALJ merely scheduled a BRC, and no final
or appealable order has been issued. Clearly,
nothing has been done which would operate to terminate the action or finally
decide all outstanding issues so as to divest the ALJ once and for all of the
authority to decide the merits of the claim.
That said, the appeal filed by
Ellington is hereby dismissed, and the claim is remanded to the ALJ to conduct
all proceedings necessary for final adjudication of the claim, including a BRC
and Hearing if required. Nothing herein
should prevent the ALJ from proceeding with the telephonic BRC scheduled for
October 20, 2014 or to postpone it at his discretion. Nothing in this decision shall abridge the
right of either party to appeal the final decision.
Accordingly,
the appeal filed by Ellington on September 22, 2014 of the claim pending before
by
Hon. Chris Davis, Administrative Law Judge, is hereby
DISMISSED.
ALL CONCUR.
_____________________________
MICHAEL W. ALVEY, CHAIRMAN
WORKERS’ COMPENSATION BOARD
PETITIONER,
PRO SE:
HON LINDA ELLINGTON
6383 OSCAR ROAD
BARLOW, KY 42024
COUNSEL
FOR RESPONDENT:
HON SCOTT M BROWN
300 EAST MAIN ST, STE 400
LEXINGTON, KY 40507
OTHER
RESPONDENTS:
WESTERN BAPTIST HOSPITAL
2501 KENTUCKY AVE
PADUCAH, KY 42001
DR DAVID ZETTER
PO BOX 159
ARLINGTON, KY 42021
DR CLINT HILL
4787 ALBEN BARLEY DRIVE
PADUCAH, KY 42003
ADMINISTRATIVE
LAW JUDGE:
HON CHRISTOPHER DAVIS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601