*/
Workers’
Compensation Board
OPINION ENTERED: March 1,
2019
CLAIM
NO. 201896086
KEN
LASHLEY PETITIONER
VS. APPEAL FROM HON. JEFF V. LAYSON, III,
ADMINISTRATIVE
LAW JUDGE
KY
VOLUNTEER FIRE DEPARTMENT and
HON.
JEFF V. LAYSON, III,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION & ORDER
DISMISSING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Ken Lashley (“Lashley”) seeks review of an Interlocutory Opinion and Order
rendered December 22, 2018 by Hon. Jeff V. Layson, III, Administrative Law
Judge (“ALJ”). The ALJ found Lashley was
injured in the course of his duties as a volunteer firefighter for KY Volunteer
Fire Department (“KYVFD”). He awarded
temporary total disability (“TTD”) based upon the state minimum benefit in
effect for the date of injury, medical benefits, and placed the claim in
abeyance until Lashley reaches maximum medical improvement (“MMI”). The ALJ noted Lashley has not yet reached
MMI. Lashley also appeals from the
January 25, 2019 order denying his petition for reconsideration.
Lashley filed a Form 101, on July 13, 2018
alleging he injured his left leg and knee when he slipped on ice and snow on
January 18, 2018. KYVFD filed a Form 111
on July 27, 2018 admitting Lashley sustained a work-related injury,
but indicated there is a dispute as to the benefits owed. A Benefit Review Conference (“BRC”) was held
on November 14, 2018. The BRC order and
memorandum indicates the claim was bifurcated for a determination of Lashley’s
pre-injury average weekly wage (“AWW”).
The Hearing Order dated November 28, 2018 notes, “Per previous order,
claim is bifurcated for decision regarding correct pre-injury average weekly
wage. All other issues are preserved for further proceedings.
(Emphasis added).
In the “Interlocutory Opinion and Order”
rendered December 22, 2018, the ALJ determined Lashley’s pre-injury AWW
pursuant to KRS 342.140(3) was “zero”.
The ALJ determined Lashley is entitled to TTD benefits at the rate of
$169.97, the minimum for 2018. The ALJ
additionally determined the claim would remain in abeyance until Lashley
reaches MMI.
On January 5, 2019, Lashley filed a
petition for reconsideration. He argued
the ALJ erred in determining the earnings from his self-employment as a
construction contractor should not be considered for calculating his AWW. The ALJ denied the petition by order entered
January 25, 2019.
Because we conclude the ALJ’s December 22,
2018 opinion, and the order on reconsideration issued January 25, 2019 are
interlocutory and therefore not final and appealable, we dismiss this
appeal.
803 KAR 25:010 Sec. 22 (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. (Emphasis added).
803 KAR 25:010 Sec. 22 (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).
The ALJ placed Lashley’s claim
in abeyance and awarded TTD benefits until he reaches MMI. In his decision, the ALJ specifically stated,
“The only disputed issue in this case at
this time is the Plaintiff’s pre-injury average weekly wage. That issue has been bifurcated for an initial
determination before proceeding to a resolution of any other issues in this
case.” (Emphasis added).
After reviewing the file, it is
clear the opinion rendered December 22, 2018, and the January 25, 2019 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 divesting the ALJ once and for all of
the authority to decide the merits of the claim.
That said, the appeal filed by Lashley must
be dismissed, and the claim remanded to the ALJ to conduct all proceedings
necessary for final adjudication of the claim, including a BRC and Hearing if
required.
Accordingly, IT IS HEREBY ORDERED AND ADJUDGED the appeal seeking review of the interlocutory
decision rendered December 22, 2018, and the order denying the petition for
reconsideration issued January 25, 2019 by Hon. Jeff V. Layson, III,
Administrative Law Judge, is hereby DISMISSED.
ALL CONCUR.
_____________________________________
MICHAEL
W. ALVEY, CHAIRMAN
WORKERS’
COMPENSATION BOARD
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
LARRY D ASHLOCK
236
WEST DIXIE AVENUE
ELIZABETHTOWN,
KY 42701
COUNSEL FOR RESPONDENT: LMS
HON
ALLISON M HELSINGER
2333
ALEXANDRIA DRIVE
LEXINGTON,
KY 40504
ADMINISTRATIVE LAW JUDGE: LMS
HON
JEFF V LAYSON, III
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
