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200-CA-00(NP)

RENDERED:  APRIL 8, 2016; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2015-CA-001446-WC

 


 

EVERETT JAMIE TURNER                     APPELLANT/CROSS-APPELLEE

 

 

 

      PETITION AND CROSS-PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-12-68600

 

 

 

PERRY COUNTY
SHERIFF’S DEPARTMENT                     APPELLEE/CROSS-APPELLANT

 

AND

 

HONARABLE WILLIAM J. RUDLOFF,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD                                   APPELLEES

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  DIXON, D. LAMBERT, AND MAZE, JUDGES.

DIXON, JUDGE:  Everett Jamie Turner seeks review of an opinion of the Workers’ Compensation Board that dismissed Perry County Sheriff’s Department’s (PCSD) appeal from an interlocutory order of the Administrative Law Judge.  In addition, PCSD cross-petitions for review of the Board’s decision.  After careful review, we affirm the Board’s dismissal of the appeal. 

                   Turner was employed by PCSD as a deputy sheriff.  On September 30, 2012, Turner suffered a heat stroke and fell backward, injuring his right shoulder.  Turner sought medical treatment and ultimately had shoulder surgery to repair a torn rotator cuff.  Turner filed a claim for workers’ compensation benefits and submitted the medical records of his treating physicians and the IME report of Dr. Arthur Hughes.  Dr. Hughes opined that Turner was not at maximum medical improvement (MMI), as he required additional treatment for reflex sympathetic dystrophy that had developed in his right arm following his shoulder surgery.  Dr. Hughes assigned a 49% impairment rating for Turner’s shoulder injury.  PCSD submitted the medical report and deposition of Dr. Henry Tutt.  Dr. Tutt disagreed with Dr. Hughes’s opinion and concluded Turner did not suffer a work-related injury.  The ALJ relied on Dr. Hughes’s assessment of 49% impairment and awarded temporary total disability (TTD) and permanent total disability (PTD) benefits to Turner.  The ALJ determined Turner reached MMI on June 25, 2014, citing the report of Dr. Tutt.  PCSD filed a petition for reconsideration, and the ALJ rendered an opinion reiterating his factual findings and denying PCSD’s petition.  PCSD appealed to the Board, arguing the ALJ’s award was not supported by the evidence.  The Board rendered an opinion affirming in part, vacating in part, and remanding.  In its decision, the Board, sua sponte, raised the issue of MMI.  The Board noted the ALJ relied on Dr. Hughes’s impairment rating from the IME report of March 26, 2014; however, Dr. Hughes opined Turner was not yet at MMI.  The Board reviewed the report and deposition of Dr. Tutt and was unable to find any statement that Turner reached MMI on June 25, 2014, as cited by the ALJ.  The Board pointed out that Dr. Tutt’s deposition indicated Turner did not suffer any injury and all of his complaints would have resolved within hours of the fall on September 30, 2012.  In light of the inconsistencies in the ALJ’s findings, the Board vacated the award of TTD and PTD benefits and remanded the claim for further consideration by the ALJ.  The Board’s opinion stated, in relevant part:

     On remand, the ALJ must provide additional findings regarding his determination of June 25, 2014, as the date of MMI in reliance upon Dr. Tutt’s testimony.  If the ALJ again finds June 25, 2014, is the date of MMI, Dr. Hughes’ impairment rating must be rejected, as it was assessed prior to Turner reaching MMI.

. . .

     However, should the ALJ not find evidentiary support for an MMI date of June 25, 2014, the ALJ must examine the record to determine a different MMI date and also determine whether it predates March 26, 2014, the date Dr. Hughes assessed his impairment rating.

. . .

     Those portions of the September 19, 2014, Opinion and Order and the November 3, 2014, Opinion and Order on Reconsideration finding Turner sustained a work-related fall and a neck injury are AFFIRMED.  However, the finding Turner has a 49% impairment rating and is totally disabled and the award of TTD benefits, PTD benefits, and medical benefits are VACATED.  Also, the finding that Turner reached MMI on June 25, 2014, is VACATED.  The claim is REMANDED for additional findings and entry of a decision in conformity with the views expressed herein.

 

                   In his opinion and award on remand, the ALJ reviewed the evidence and concluded that Turner had not reached MMI, relying on Dr. Hughes’s opinion that Turner required additional treatment for his right arm.  The ALJ rendered an interlocutory award of TTD benefits until Turner reaches MMI. 

                   PCSD appealed the interlocutory order to the Board.  The Board issued an opinion and order dismissing the appeal as interlocutory.  In its lengthy opinion, the Board “strongly recommend[ed]” that the ALJ vacate the interlocutory TTD award, as the Board believed the ALJ had exceeded his authority on remand.

                   Turner seeks review of the Board’s order, contending the ALJ properly entered an interlocutory award of TTD benefits.  In its petition for cross-review, PCSD asserts the Board should have treated the ALJ’s order as final and appealable. 

                   When this Court reviews a decision of the Board, we “correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”  Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

                   In the ALJ’s order on remand, he relied on Dr. Hughes’s opinion that Turner was not at MMI and chose to award interlocutory TTD benefits.  It is well settled that an interlocutory award of TTD benefits is not final and appealable.  Transit Authority of River City v. Saling, 774 S.W.2d 468, 469 (Ky. App. 1989).  Here, the Board correctly dismissed PCSD’s appeal as interlocutory, yet articulated why it believed the ALJ’s order was erroneous.  We decline to address the propriety of the Board’s recommendations to the ALJ because the order was clearly “interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims . . . of all the parties.”  CR 54.02(1).  Although the Board was obviously dissatisfied with the ALJ’s decision, the fact remains that the ALJ’s order was not final and appealable.  Further, PCSD’s contention that the order should be considered appealable because the ALJ acted without authority is unpersuasive and does not warrant a departure from the holding of Saling, supra.  After careful review, we are satisfied the Board properly dismissed the appeal as interlocutory. 

                   For the reasons stated herein, we affirm the Board’s order of dismissal. 

                   ALL CONCUR.


 



BRIEF FOR APPELLANT/

CROSS-APPELLEE:

 

McKinnley Morgan

London, Kentucky

 

BRIEF FOR APPELLEE/

CROSS-APPELLANT:

 

Ralph D. Carter

Hazard, Kentucky