*/
Workers’
Compensation Board
OPINION
ENTERED: July 24, 2015
CLAIM NO. 201473965
WISDOM FLOOR COVERINGS PETITIONER
VS. APPEAL FROM HON. WILLIAM
J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE
GREGORY LYONS;
ERNIE'S CARPET;
UNINSURED EMPLOYERS FUND; and
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
DISMISSING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Wisdom Floor Coverings (“Wisdom”)
seeks review of an Interlocutory Order rendered May 28, 2015 by Hon. William J.
Rudloff, Administrative Law Judge (“ALJ”) awarding temporary total disability
(“TTD”) benefits and medical benefits to Gregory Lyons (“Lyons”). The ALJ’s decision specifically notes it is
interlocutory, and is not final and appealable.
Wisdom also appeals from the July 22, 2015[1]
order denying its petition for reconsideration, and from the June 18, 2015
order approving settlement agreement.
Lyons filed
a Form 101, Application for Resolution of Injury Claim, on October 14, 2014
alleging he injured his right hand while cutting floor tile on July 23,
2013. A Benefit Review Conference
(“BRC”) was held on March 11, 2015. The
BRC order and memorandum indicates the issues preserved for decision included
jurisdiction; employment relationship; TTD benefits; medical benefits; average
weekly wage; Lyons’ physical capacity to return to the type of work performed
on the date of injury; benefits per KRS 342.730; credit for unemployment
benefits; whether Lyons was an employee or independent contractor; and
entitlement to permanent total disability benefits.
In the “Interlocutory
Opinion and Order” rendered May 28, 2015, the ALJ determined Lyon had not yet
reached maximum medical improvement (“MMI”) based upon Dr. Warren Bilkey’s
report, and was therefore entitled to TTD benefits and medical benefits. Wisdom filed a petition for reconsideration
on June 12, 2015 which was denied by the ALJ on June 22, 2015.
Because we
conclude the ALJ’s May 28, 2015 ruling is interlocutory and does not represent
a final and appealable order, we dismiss this appeal.
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 (
The
ALJ, in arriving at his decision, stated he relied upon Dr. Bilkey’s opinion
expressed in his December 1, 2014 report.
In that report, Dr. Bilkey stated, “Mr. Lyons is clearly not at MMI.” Therefore, the ALJ could reasonably determine
from the record, especially based upon Dr. Bilkey’s opinion additional
treatment is required, Lyon has not reached MMI.
After
reviewing the file, it is clear the opinion rendered May 28, 2015, and the June
22, 2015 order on reconsideration are interlocutory, and as such are not final and appealable as they do not operate to
terminate the action or finally decide all outstanding issues. Likewise, they do not operate to determine all
the rights of the parties 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 Wisdom
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. Although the ALJ’s
orders are unclear, it is presumed his intent was for the claim to remain in
abeyance until Lyon reaches MMI. We note
the ALJ awarded TTD benefits and stated as follows:
Plaintiff is
awarded temporary total disability benefits of $266.67 per week, beginning
January 26, 2015 and continuing until the plaintiff reaches maximum medical
improvement and reaches a level of improvement that would permit him to return
to his customary work or the work he was performing at the time of his injury
on July 23, 2013.
The ALJ is reminded in determining the
appropriate period of TTD benefits, he must apply the appropriate standard as
set forth in W.L. Harper Construction Company
v. Baker, 858 S.W.2d 202 (Ky. App. 1993); Central Kentucky Steel v.
Wise, 19 S.W.3d 657 (Ky. 2000); and Magellan Behavioral Health v. Helms,
140 S.W.3d 579 (Ky. App. 2004).
Also, while not required to do so, the
ALJ should consider requiring status reports filed on a periodic basis to
advise the status of Lyon’s recovery.
Nothing in this decision shall abridge the right of either party to
appeal the final decision.
Accordingly, the appeal seeking
review of the interlocutory decision rendered May 28, 2015; the order denying
the petition for reconsideration issued June 22, 2015 by Hon. William J.
Rudloff, Administrative Law Judge; and the settlement agreement approved on
June 18, 2015, is hereby DISMISSED.
STIVERS, MEMBER, CONCURS.
RECHTER, MEMBER, CONCURS IN RESULT
ONLY.
COUNSEL
FOR PETITIONER:
HON WILLIAM P EMRICK
PO BOX 24564
LEXINGTON, KY 40524
COUNSEL
FOR RESPONDENT GREGORY LYONS:
HON BEN T HAYDON JR
PO BOX 1155
BARDSTOWN, KY 40004
COUNSEL
FOR ERNIE’S CARPET:
HON SCOTT M BROWN
300 WEST VINE ST, STE 600
LEXINGTON, KY 40507
COUNSEL
FOR UNINSURED EMPLOYERS FUND:
HON PAUL D ADAMS
1024 CAPITAL CENTER DR, STE 200
FRANKFORT, KY 40601
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J RUDLOFF
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] Although the Notice of Appeal lists the
order on reconsideration as July 22, 2015, it was actually dated June 22, 2015.
