Opinion
NO. 2012-CA-001074-WC
06-07-2013
PEP BOYS, MANNY, MOE AND JACK APPELLANT v. CHRISTY FRAZIER; MICHAEL CASNELLIE, M.D.; HONORABLE WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Mark R. Bush Ft. Mitchell, Kentucky BRIEF FOR APPELLEE, CHRISTY FRAZIER: Udell B. Levy Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-07-67708
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS AND DIXON, JUDGES. DIXON, JUDGE: Pep Boys seeks review of an opinion of the Workers' Compensation Board dismissing its appeal of Administrative Law Judge (ALJ) Rudloff's interlocutory opinion and order awarding medical benefits to Christy Frazier (Appellee). After careful review, we affirm the Board's dismissal of the appeal.
On March 22, 2012, ALJ Rudloff rendered a "Second Interlocutory Opinion and Order" awarding medical benefits for Appellee's proposed back surgery. The opinion set forth the following relevant facts:
[Appellee] filed an application for resolution of injury claim on June 26, 2009, indicating that on November 2, 2007, she was injured within the scope and course of her employment for the defendant Pep Boys (Hereinafter referred to as 'defendant') at Louisville, Jefferson County, Kentucky. [Appellee] stated that she sustained injury to her back and other body parts when the delivery vehicle she drove was rear-ended in a motor vehicle accident. On December 4, 2009, ALJ Frasier bifurcated the claim for initial determination of several issues. On January 14, 2010, by an agreed order ALJ Frasier placed the claim into abeyance until [Appellee] reached maximum medical improvement.ALJ Rudloff summarized the most recent evidence submitted by the parties, including medical records of Dr. Casnellie recommending the fusion surgery and reports by Dr. Guarnaschelli opining that Appellee was not a candidate for surgical fusion. ALJ Rudloff concluded the recent medical reports constituted new evidence on the issue of whether the fusion surgery had become necessary in the fourteen months following the first interlocutory order rendered by ALJ Frasier. Judge Rudloff explained his reasoning as follows:
On January 11, 2011, the parties agreed to take the claim out of abeyance for a decision without hearing on the reasonableness and necessity of proposed spinal surgery. The question was whether [Appellee] should undergo a combined procedure, decompression and fusion (the position of her spinal surgeon, Dr. Casnellie), or should undergo only the decompression (the position of Dr. Guarnaschelli for the defendant). ALJ Frasier agreed with the opinion of Dr. Guarnaschelli and authorized only the decompression procedure. (Interlocutory Opinion, January 31, 2011).
Dr. Casnellie continues to treat [Appellee], who continues to suffer, and he again recommends the fusion procedure. The defendant has filed a second medical fee dispute, protesting the procedure. [Appellee] responded, and the defendant again moved to bifurcate and set a proof schedule and to join Dr. Casnellie as a party in interest. The ALJ joined Dr. Casnellie by an order rendered February 23, 2012.
Many months after the decompression surgery [Appellee's] pain continues. Dr. Casnellie again recommends the fusion procedure. In Dr. Guarnaschelli's most recent opinion, the procedure is not reasonable and necessary because [Appellee] does not have a spinal instability sufficient to warrant the procedure. He also opined that [Appellee] likely would not get the amount of relief she wants. [Appellee] has been told that the procedure has only an 85% rate of success.
This ALJ considers Dr. Guarnaschelli's opinion significant and worthy of respect. However, [Appellee's] treating surgeon opined that the first procedure would not adequately relieve [Appellee's] pain. Time has proven him correct. [Appellee] and her physician believe the second procedure and its risk merit the possibility of significant pain relief. The ALJ is more persuaded by the opinion of the treating physician, Dr. Casnellie, that the recommended fusion surgery is reasonable and necessary for the treatment of the [Appellee's] 2007 work injury.
This case was reassigned from ALJ Frasier to ALJ Rudloff in December 2011.
Pep Boys filed three different motions for reconsideration, which the ALJ denied. Pep Boys then filed a "Notice of Interlocutory Appeal" to the Board, alleging ALJ Rudloff erred by awarding medical benefits for the fusion surgery. The Board rendered an opinion and order sua sponte dismissing the appeal as interlocutory. The Board noted that whether an ALJ's order is appealable is determined in accordance with Kentucky Rules of Civil Procedure (CR) 54.02. 803 Kentucky Administrative Regulations (KAR) 25:010 § 21(2)(b). The Board reviewed CR 54.02 and concluded that ALJ Rudloff's order was interlocutory. The Board stated, in relevant part:
[A]n order of an ALJ is appealable only if: 1) it terminates the action itself; 2) acts to decide all matters litigated by the parties; [or] 3) operates to determine all the rights of the parties so as to divest the ALJ of authority. Cf. KI USA Corp. v. Hall, 3 S.W.3d 355 (Ky. 1999); Ramada Inn v. Thomas, 892 S.W.2d 593 (Ky. 1995); Transit Authority of River City v. Saling, 774 S.W.2d 468 (Ky. App. 1989).
The ALJ's March 22, 2012, Second Interlocutory Opinion and Order and subsequent order ruling on the petition for reconsideration meet none of these requirements. The ALJ's opinion does not operate to terminate the action itself. Moreover, the ALJ's ruling does not act to finally decide all outstanding issues, nor does it operate to determine all rights of [Appellee] and Pep Boys so as to divest the ALJ once and for all of authority to decide the overall merits of the case. Clearly, this claim was placed in abeyance until [Appellee] reached MMI. The ALJ has never removed the claim from abeyance; therefore, the March 22, 2012, Second Interlocutory Opinion and Order and the April 18, 2012, Interlocutory Opinion and Order on Reconsideration could not possibly be deemed final and appealable. Pep Boys recognizes this fact in its Notice of Appeal which is styled "Notice of Interlocutory Appeal."
The ALJ has yet to decide several potential issues involving [Appellee's] claim, including but not limited to future medical care, TTD benefits, and the extent and duration of her occupational disability. As a matter of
law, therefore, the March 22, 2012, decision and subsequent order ruling on the Motion to Vacate/Petition for Reconsideration must be deemed interlocutory. Therefore, the ALJ as the fact-finder, not this Board, retains jurisdiction. See KRS [Kentucky Revised Statutes] 342.275.
Pep Boys now seeks review of the Board's opinion dismissing its appeal.
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).
Pep Boys characterizes ALJ Frasier's January 2011 interlocutory opinion as a conclusive determination that the fusion surgery was not compensable; accordingly, Pep Boys opines that ALJ Rudloff's subsequent order reversing ALJ Frasier's decision was appealable because it divested Pep Boys of its right to avoid responsibility for Appellee's fusion surgery. Pep Boys cites two unpublished opinions, St. Joseph Hosp. v. Bratton, 2002-CA-001522-WC (Oct. 31, 2003), and Hutchins v. Summa Technology/Ken-Mar, 2005-CA-000127-WC (Aug. 19, 2005), to support its position that ALJ Rudloff's order was final and appealable.
First, although Pep Boys insists ALJ Frasier made a dispositive determination on the compensability of the fusion surgery, we must note that ALJ Frasier's order specifically stated, "The undersigned finds that the proposed fusion surgery by Dr. Casnellie is not reasonable and necessary, at this time, for treatment of the work-related injury." (Emphasis added). The highlighted language implies that ALJ Frasier recognized that the claimant's condition, and need for surgery, could change. Several months later, Pep Boys disputed the compensability of the fusion surgery requested by Appellee to relieve her ongoing symptoms. The ALJ resolved the fee dispute by interlocutory order, granting Appellee medical benefits for the fusion surgery pursuant to KRS 342.020. This order did not fully adjudicate Appellee's workers' compensation claim; consequently, the order was "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). ALJ Rudloff's order was clearly interlocutory, and Pep Boys' attempt to characterize it differently is without merit.
In Transit Authority of River City v. Saling, 774 S.W.2d 468 (Ky. App. 1989), this Court held that an interlocutory award of workers' compensation benefits was not appealable. Id. at 469; see also Ramada Inn v. Thomas, 892 S.W.2d 593 (Ky. 1995); KI USA Corp. v. Hall, 3 S.W.3d 355 (Ky. 1999). The cases cited by Pep Boys, Bratton and Hutchins, do not persuade us that the facts of this case warrant a departure from the holding of Saling, supra
In Bratton, this Court concluded an ALJ's order awarding benefits on reopening, rendered after a final settlement agreement, was final and appealable; accordingly, we reversed the Board's decision that the order on reopening was interlocutory. Bratton, slip op. at 3. In Hutchins, the claimant was at MMI; however, the ALJ, sua sponte, awarded interlocutory benefits, which was improper. Hutchins, slip op. at 2.
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As the Board noted, ALJ Rudloff's order did not serve as a final adjudication of the parties' rights, did not terminate the action, and did not resolve all matters being litigated. We are satisfied that the Board correctly concluded that ALJ Rudloff's "Second Interlocutory Opinion and Order" was, indeed, interlocutory and not appealable. Finally, we are not persuaded by Pep Boys' alternative argument that it will suffer irreparable harm without appellate review of the interlocutory order in this case.
For the reasons stated herein, we affirm the Board's opinion and order of dismissal.
ALL CONCUR. BRIEF FOR APPELLANT: Mark R. Bush
Ft. Mitchell, Kentucky
BRIEF FOR APPELLEE, CHRISTY
FRAZIER:
Udell B. Levy
Louisville, Kentucky