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October 17, 2014 200394580

Commonwealth of Kentucky 

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 (Ky. App. 1984); cf. Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939); and Transit Authority of River City vs. Sailing, 774 S.W.2d 468 (Ky. App. 1980); see also Ramada Inn vs. Thomas, 892 S.W.2d 593 (Ky. 1995).  

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