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200-CA-00(NP)

RENDERED:  JUNE 5, 2015; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth Of Kentucky

Court of Appeals

 

NO. 2014-CA-000625-WC

 

 


 

CDR MINERALS                                                                        APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. wc-13-00438

 

 

 

RANDY RICHIE; HON. WILLIAM
J. RUDLOFF; AND WORKERS’
COMPENSATION BOARD                                                         APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  ACREE, CHIEF JUDGE; D. LAMBERT AND VANMETER, JUDGES.

 

ACREE, CHIEF JUDGE:  CDR Minerals appeals the March 12, 2014 Opinion of the Worker’s Compensation Board (Board).  The Board’s opinion affirmed in part, and vacated in part, the September 10, 2013 Opinion, Award, and Order of the Administrative Law Judge (ALJ), and his Order on Reconsideration dated October 17, 2013.  After vacating the ALJ’s order, the Board remanded the matter to the ALJ for additional fact-finding.  We affirm the Board’s order.

I.                              Background

                   Only a few facts are necessary to resolve this case.  Appellee, Randy Richie, claimed disability resulting from his long career as a heavy equipment operator.  To sustain his claim, Richie relied on a report from Dr. Arthur L. Hughes stating that Richie was disabled due to work-related injuries.  However, in forming his opinion, Dr. Hughes was unaware of the existence of other medical records pertaining to Richie’s injury.  When CDR’s counsel confronted Dr. Hughes with these additional records at his deposition, Dr. Hughes admitted that his opinion had changed substantially.  Both Dr. Hughes’ original opinion and his deposition testimony were made part of the record and submitted to the ALJ.

                   The trouble began when the ALJ reviewed the record and concurred with Dr. Hughes that Richie was disabled.  However, the findings of fact in the ALJ’s order addressed only Dr. Hughes original report, not his qualified opinion set out in his deposition.  The ALJ failed to make any findings of fact regarding Dr. Hughes’ qualified opinion, even though it was materially inconsistent with his original opinion.  When confronted with the ALJ’s order, the Board determined the dearth of factual findings regarding those inconsistencies rendered the order so “unclear as to the extent of Richie’s injuries and [as to] whether the ALJ considered the entirety of the record,” that the Board was “unable to perform any meaningful review of the [ALJ’s decision].”  Due to its concerns, the Board remanded this case to the ALJ for additional fact-finding.  CDR now appeals the Board’s decision to remand the case, arguing that the ALJ’s initial decision was unsupported by substantial evidence. 

II.                           Standard of Review

                   When reviewing a decision of the Board, we will affirm so long as the Board has not (1) misconstrued or overlooked controlling precedent or (2) committed flagrant error in evaluating the evidence that results in gross injustice. Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992). 

III.                       Analysis

                   On appeal, CDR requests that we overrule the Board’s decision to remand the matter to the ALJ, and instead determine that, as a matter of law, Richie failed to establish that he suffered a “cumulative injury” within the meaning of KRS 342.0011(1).  We decline to do so.

                   The Board’s role is to provide expert review of workers compensation claims.  Carnes v. Parton Bros. Contracting, Inc., 171 S.W.3d 60, 69 (Ky. App. 2005).  Accordingly, the Board possesses inherent authority to remand a case to an ALJ when it determines it is unable to engage in any meaningful review of an ALJ’s order.  While our role is to review Board action, we intervene only when that action is arbitrary, abusive, or results in gross injustice.  That is not the case here.  The Board determined that before it can review the ALJ’s decision, the ALJ must first issue an order containing sufficient factual findings to allow the Board to compare those findings to the record.  We cannot meaningfully review that which the Board found impossible to meaningfully review.

                   We agree that the factual findings are insufficient for review.  In other words, the ALJ failed to adequately perform his function.  We agree that he should be given the opportunity to do so.  We have ruled in similar cases that the Board has authority to remand for additional findings of fact.  Campbell v. Hauler’s Inc., 320 S.W.3d 707, 708 (Ky. App. 2010). 

                   The Board’s March 12, 2014 Opinion is affirmed. 

                  

                   All concur.

 

BRIEF FOR APPELLANT, CDR MINERALS:

 

James B. Cooper

Guillermo A. Carlos

Lexington, Kentucky

BRIEF FOR APPELLEE, RANDY RICHIE:

 

McKinnley Morgan

London, Kentucky