Opinion
NO. 2013-CA-001474-WC
06-13-2014
KASEY WEBB APPELLANT v. ASI PLUMBING, AS INSURED BY KENTUCKY EMPLOYERS' MUTUAL INSURANCE COMPANY; ASI PLUMBING, AS INSURED BY KENTUCKY EMPLOYERS SAFETY ASSOCIATION; KENTUCKY EMPLOYER'S MUTUAL INSURANCE; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; HON. J. LANDON OVERFIELD, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Scott A. Wallitsch Louisville, Kentucky BRIEF FOR APPELLEE, ASI PLUMBING, AS INSURED BY KENTUCKY EMPLOYERS' MUTUAL INSURANCE COMPANY:
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-11-76183 AND WC-12-00499
OPINION
AFFIRMING IN PART AND
VACATING IN PART
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: Kasey Webb appeals an opinion and order of the Workers' Compensation Board vacating a May 17, 2013 order of the Chief Administrative Law Judge (CALJ) and remanding to provide Webb an opportunity to present a prima facie case for reopening his workers' compensation award. The contours of this matter cannot be stated succinctly because its procedural history is somewhat unwieldy. However, the primary focus of this appeal is essentially two separate orders—one entered by an Administrative Law Judge (ALJ) on January 11, 2013, the other entered by the CALJ on May 17, 2013. The primary issue is whether these orders were respectively appealable. If the January 11, 2013 order finally resolved Webb's claim and if the May 17, 2013 order was also subject to the Board's jurisdiction, then the Board's decision to vacate and remand this matter was correct. Because they were, we affirm to that extent.
1. The January 11, 2013 Order
The January 11, 2013 order was entered by an ALJ following a final administrative hearing. It touches upon the nature of Webb's workers' compensation claim and some of the undisputed factual and procedural history relating to these proceedings. In relevant part, it provides:
INTRODUCTION
This claim was brought by the plaintiff, Kasey Webb, against his former employer, ASI Plumbing, alleging injuries to his low back and lower extremities occurring in the course and scope of his employment with the defendant on April 22, 2010 and again on September 1,
2011. At the time of the April 22, 2010 injury (claim number 2011-76183), the defendant was insured by KEMI [Kentucky Employers Mutual Insurance] and at the time of the September 1, 2011 injury (claim number 2012-00499), the defendant was insured by KESA [Kentucky Employers Safety Association]. A hearing was held in this matter on November 13, 2012. Following the hearing, the parties entered into a settlement agreement which was approved on December 18, 2012. In that agreement, income benefits for permanent partial disability and temporary total disability was settled for both injury dates. However, the issue of responsibility for continuing medical benefits was reserved for decision.
ISSUES
1. Apportionment of liability for future medical expenses?
FINDINGS OF FACT
1. The parties stipulated to coverage under the Act and that an employment relationship existed at all relevant times. They further agreed the plaintiff sustained work related injuries on April 22, 2010 and again on September 1, 2011 of which the defendant-employer had due and timely notice. No temporary total disability benefits were paid as result of either injury and no medical benefits were paid as result of the 2010 injury. As result of the 2011 injury, medical benefits were paid in the amount of $428.00. The plaintiff earned an average weekly wage of $940.19 at the time of the April 22, 2010 injury and $811.16 per week at the time of the September 1, 2011 injury. The plaintiff's date of birth is December 10, 1982 and he is a high school graduate with specialized training in HVAC and plumbing.
2. The plaintiff's testimony indicates that his first injury occurred when he was involved in a rear-end collision in the course and scope of his employment with the defendant. He described pain in his right hip following the accident. He testified that he underwent physical
therapy, injections and took pain medications up until the time of the second incident which occurred on September 1, 2011. At that time, the plaintiff was using a jackhammer and was attempting to pull up some material when he suffered increased pain in his low back radiating down his left buttocks to his foot. Since that time, he has had a burning sensation in his hip and pressure in the small of his back. He continues to have pain in the low back as well.
3. Following the event of April 22, 2010 and prior to the event of September 1, 2011, the plaintiff visited the emergency room on June 19, 2011 and June 23, 2011. He underwent an MRI of the low back on June 27, 2011 and complained of progressively worsening lower back pain in a medical visit of July 11, 2011. The plaintiff had an epidural injection for the low back on July 25, 2011. Following the event of September 1, 2011, the plaintiff's treating physician, Dr. Verghis placed him off work. Dr. Verghis offered the opinion the plaintiff's current problems were due to jackhammering, but agreed there was no structural change noted between the MRI scan which was taken on June 27, 2011 and one which was taken following the September 1, 2011 event. Accordingly, Dr. Verghis opined that 90% of the plaintiff's current impairment will be related to the original injury of 2010 and only 10% to the event of September 2011. Dr. Kriss evaluated the plaintiff on April 9, 2012 and assessed a 5% impairment. He offered the opinion that the plaintiff suffered a disc protrusion at the time of the April 22, 2010 event, but only suffered a temporary strain in the event of September 2011. Dr. Wolens agreed there was no structural change after reviewing of diagnostic tests taken after the September 1, 2011 event. Like Dr. Kris, Dr. Baker felt the plaintiff's impairment was attributable to the April 22, 2010 motor vehicle accident with the September 1, 2011 event resulting in only a temporary strain.
ANALYSIS AND CONCLUSIONS
1. The question before the Administrative Law Judge is which insurance carrier is responsible for the plaintiff's
future medical treatment. I am convinced the plaintiff sustained a 5% impairment as the result of the April 22, 2010 motor vehicle accident, thus sustaining an injury as defined by the Act entitling the plaintiff to future medical expenses pursuant to [Kentucky Revised Statute (KRS)] 342.020. However, in regards to the date of injury of September 1, 2011, I have not been convinced the plaintiff sustained anything more than a temporary strain with no resulting structural physical change. An employer may be responsible for reasonable and necessary medical expenses when a subsequent work related event causes a worsening or progression of a preexisting active condition. Derr Construction Company v. Bennett, 873 S.W.2d 824 (Ky. 1994). However, in a situation where the subsequent injury does not result in any structural change nor additional impairment, an award of medical benefits during the period of temporary aggravation until an individual returns to his baseline condition may be appropriate. Sears Roebuck and Co. v. Dennis, 131 S.W.3d 351 (Ky. App. 2004). In this instance, I am convinced the event of September 1, 2011 resulted in a temporary strain superimposed on a preexisting active impairment, but resulted in no structural change. I am convinced the plaintiff reached maximum medical improvement as noted by Dr. Timothy Kriss on April 9, 2012. Therefore, the defendant, as insured by KESA, for the date of injury of September 1, 2011 (2012-00499) is responsible for reasonable and necessary medical expenses incurred from September 1, 2011 through April 9, 2012. Thereafter, the defendant, as insured by KEMI, for the date of injury of April 22, 2010 (2011-76183) shall be responsible for all reasonable and necessary medical expenses for the cure and/or relief of the plaintiff's lower back injury pursuant to KRS 342.020.
ORDER
1. For his injury of April 22, 2010 (2011-76183) the plaintiff, shall recover from the defendant as insured on that date, all reasonable and necessary medical expenses under KRS 342.020 for the injury to his lumbar spine except as noted in numerical paragraph 2 below.
2. For his injury of September 1, 2011 (2012-00499) the plaintiff, shall recover from the defendant as insured on that date, all reasonable and necessary medical expenses under KRS 342.020 during the period of temporary aggravation to the lumbar spine from September 1, 2011 through April 9, 2012. Thereafter, the defendant as insured on that day shall be relieved of further obligations under KRS 342.020.
3. All motions for approval of attorney's fees shall be filed with the Administrative Law Judge within thirty (30) days after the final disposition of this award. Any such motions must include an itemization of services together with either the actual times or a reasonable [sic] accurate estimate of the times expended on each of the itemized services listed.
No party to this appeal has argued that this January 11, 2013 order is in any way erroneous. Rather, the parties disagree over whether it is incomplete. Webb has never appealed it because, as he maintains, it left one of his claims unresolved which rendered it interlocutory rather than final and subject to the Board's jurisdiction. Specifically, Webb contends that the order failed to address a claim he made for "future TTD" (temporary total disability) attributable to his April 22, 2010 injury.
With that said, we pause for a moment to resolve whether this order was indeed interlocutory as opposed to final and appealable. Doing so is critical to understanding the remainder of what happened procedurally in this case after this order was entered.
Webb's claim of "future TTD" derives from a provision of the settlement agreement referenced in the first paragraph of the above order. The settlement agreement was approved by the ALJ on December 18, 2012. It resolved every issue regarding Webb's entitlement to past, present, and future permanent partial disability income benefits (PPD) and past and present TTD income benefits owed to him by virtue of either of his two injuries that formed the subject matter of his workers' compensation actions. Webb's claim for future TTD income benefits is based upon his understanding of a portion (italicized below) of the following paragraph located on the third page of the settlement agreement:
The parties reserve as contested issues for determination by the Administrative Law Judge the following issues and defenses: causation/work-relatedness, occurrence of "injury" as defined by KRS 342.0011(1), entitlement/duration and liability for any additional TTD benefits after the date of settlement approval, reasonableness and necessity of continuing medical care (including the referral to the Leatherman Spine Institute), liability for future medical benefits, including liability for such medical benefits as between Defendants and accidents, and any apportionment of such liability.
Essentially, Webb claims that because the settlement agreement reserved his claim for "entitlement/duration and liability for any additional TTD benefits after the date of settlement approval" for adjudication, and because the ALJ did not list "entitlement/duration and liability for any additional TTD benefits after the date of settlement approval" in the "issues" section of the January 11, 2013 order, the ALJ must not have intended to dispose of his claim for future TTD attributable to his April 22, 2010 injury. Webb asserts that the ALJ instead intended to defer judgment in that regard to some later date, and that the ALJ's reference to "maximum medical improvement" (MMI) in the January 11, 2013 order only pertained to the September 1, 2011 injury. Furthermore, Webb argues that it would have been inappropriate for the ALJ to have found that he was ineligible for TTD on January 11, 2013, or at any other point prior to that date, because no physician at that time had even determined that he was at maximum medical improvement from his April 22, 2010 injury.
For their part, the Appellees argue that the order was final and appealable. Upon review, we agree.
Whether the January 11, 2013 order qualified as "final and appealable" depended entirely upon whether it fulfilled the criteria of Kentucky Rules of Civil Procedure (CR) 54.02. According to that rule, an order is final and appealable if it leaves no claim unresolved. Id. Here, the ALJ's January 11, 2013 order resolved Webb's entitlement to any TTD income benefits following the December 18, 2012 settlement—the one and only issue according to Webb that remains outstanding. This is because the ALJ's order did in fact determine that Webb achieved MMI for both his April 22, 2010 and September 1, 2011 injuries that were at issue in this litigation. Moreover, it determined that Webb achieved MMI for both injuries before December 18, 2012.
803 Kentucky Administrative Regulations (KAR) 25:010 § 21 provides: Review of Administrative Law Judge Decisions....
(2) Time and format of notice of appeal....
(b) As used in this section, a final award, order or decision shall be determined in accordance with Civil Rule 54.02(1) and (2).
Webb points out that the ALJ's January 11, 2013 order should also be considered interlocutory because it does not recite that it is "final" and that there "is no just cause for delay," as required by CR 54.02(1). But, by its own terms CR 54.02 does not require any recital of that language where, as here and discussed below, the order in question resolves all of the claims at issue.
We begin our explanation by noting that "Temporary total disability" is statutorily defined as "the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment[.]" KRS 342.0011(11)(a). To be entitled to temporary total disability income benefits after December 18, 2012 (e.g., "future TTD"), Webb was required to prove that for a definite period of time following December 18, 2012, his condition resulting from his April 22, 2010 injury 1) had not reached maximum medical improvement (MMI); and 2) had not improved enough to allow him to return to work. Magellan Behavioral Health v. Helms, 140 S.W.3d 579, 581 (Ky. App. 2004). Thus, a determination that Webb had achieved MMI from the effects of his April 22, 2010 injury prior to December 18, 2012 is, effectively, a rejection of any claim Webb could have made for TTD income benefits after December 18, 2012.
The issue that the ALJ's order explicitly resolved was "Apportionment of liability for future medical expenses." Resolving this issue required the ALJ to determine whether Webb had attained MMI for either of his April 22, 2010 and September 1, 2011 injuries—doing so was vital to determining the extent of the liability to be apportioned between KEMI (which was only responsible for the effects of the April 22, 2010 injury) and KESA (which was only responsible for the effects of the September 1, 2011 injury).
As to the April 22, 2010 injury, the ALJ held:
I am convinced the plaintiff sustained a 5% impairment as the result of the April 22, 2010 motor vehicle accident, thus sustaining an injury as defined by the Act entitling the plaintiff to future medical expenses pursuant to KRS 342.020.
The "5% impairment" the ALJ was referring to is a "whole person impairment rating," or "WPI." WPI ratings are assessed by doctors utilizing the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides). As the title would imply, this text evaluates permanent impairment, not temporary impairment. See, e.g., KRS 342.0011(35) ("Permanent impairment rating" means percentage of whole body impairment caused by the injury or occupational disease as determined by the "Guides to the Evaluation of Permanent Impairment"). Indeed, page 9 of the AMA Guides provides:
An impairment should not be considered permanent until the clinical findings indicate that the medical condition is static and well stabilized, often termed the date of maximal medical improvement (MMI). It is understood that an individual's condition is dynamic. Maximal medical improvement refers to a date from which further recovery or deterioration is not anticipated, although over time there may be some expected change. Once an impairment has reached MMI, a permanent impairment rating may be performed. . . .
In other words, the AMA Guides prohibit physicians from assigning an individual a WPI rating due to an injury unless the physician is of the opinion that the injury in question resulted in a condition of impairment which has reached MMI and is accordingly permanent. When an ALJ adopts a physician's assignment of a WPI rating, the ALJ is, by extension, adopting the physician's belief that the injury in question resulted in a condition of impairment that has reached MMI and is therefore permanent. Here, the ALJ adopted the opinions of Drs. Robert Baker and Timothy Kriss, along with their assignment of a 5% whole person impairment rating to Webb as a result of the April 22, 2010 injury. In doing so, the ALJ adopted the opinions of these physicians that Webb had sustained an injury on April 22, 2010, that had resulted in a permanent condition of impairment, and that Webb had reached MMI from that injury.
Specifically, Dr. Kriss's report of April 9, 2012 states:
Impairment:Dr. Baker's report of September 24, 2012, reflects that Dr. Baker agreed with Dr. Kriss's assessment of a 5% WPI regarding the April 22, 2010 injury. He added:
In accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition, page 384, table 15-3, DRE lumbar category II, for clinical history and examination compatible with a specific injury (the April 22, 2010 motor vehicle accident), I would assign a whole person impairment of 5%. I would assign all of this lumbar impairment to the April 22, 2010 MVA. I would not assign any permanent harmful change or lumbar impairment to the September 1, 2011 jackhammer incident.
I would agree that [Webb] most probably reached an MMI situation subsequent to the 04/22/2010 incident. I do not see any medical evidence in the file that would substantiate the exact date upon which that MMI subsequent to the 04/22/2010 event would have been reached. This is because the alleged incident with the jackhammer occurred while he was still receiving treatment for the incident of 4/22/10. However, one can say that, according to medical probability with similar circumstances, Mr. Webb probably reached an MMI situation approximately 6 months after the incident of 04/22/2010, although he allegedly was still symptomatic and undergoing treatment.
As to Webb's September 1, 2011 injury, the ALJ held that this was merely a strain that caused a temporary aggravation of the April 22, 2010 injury, it did not warrant any impairment rating and that it only obligated KESA (ASI's insurer on September 1, 2011) to provide benefits to Webb "during the period of temporary aggravation until [Webb] return[ed] to his baseline condition." The ALJ further stated: "I am convinced the plaintiff reached maximum medical improvement as noted by Dr. Timothy Kriss on April 9, 2012."
Taken in context with the rest of the ALJ's order, the ALJ's reference to Webb's "baseline condition" is a reference to Webb's condition between his April 22, 2010 injury and his second injury of September 1, 2011. Because the ALJ adopted Dr. Kriss and Dr. Baker's assignment of a 5% WPI rating relating to Webb's April 22, 2010 injury, the ALJ therefore considered Webb's "baseline condition" to be a state of permanent impairment and MMI. The ALJ held KESA exclusively liable for paying Webb's medical benefits for the period between September 1, 2011, and April 9, 2012, because this second injury (Webb's back strain) temporarily aggravated Webb's condition and caused a temporary departure from Webb's baseline condition of MMI until April 9, 2012. Once Webb's back strain resolved itself on April 9, 2012, Webb's condition was no longer aggravated and he returned to his prior baseline condition of MMI from the April 22, 2010 injury. KEMI became liable, once more and thereafter, for the cure and relief of Webb's April 22, 2010 injury.
In sum, the ALJ found that Webb had reached MMI regarding the April 22, 2010 and September 1, 2011 injuries no later than April 9, 2012—a date well before December 18, 2012, when the ALJ approved the settlement agreement. TTD income benefits cannot be awarded after MMI has been reached. The ALJ's finding consequently disposed of any remaining claim Webb made, or could have made, for TTD income benefits for a period after December 18, 2012.
We acknowledge Webb's argument that the ALJ's order did not explicitly state that it was deciding the matter of his entitlement to TTD following December 18, 2012. However, when interpreting the judgment of a court or administrative agency, "effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language." Furlow v. Sturgeon, 436 S.W.2d 485, 486 (Ky. 1969) (citation omitted). Furlow also provides that where claims in an action are mutually exclusive, "adjudicating in favor of one is negating the other." Id. Here, all of the parties submitted the matter of Webb's entitlement to "future TTD" to the ALJ for final adjudication; they extensively briefed this issue for the ALJ's consideration, along with the matter of apportionment, and expected the ALJ to resolve this issue in the January 11, 2013 order; and, the manner in which the ALJ's January 11, 2013 order apportioned liability between KEMI and KESA unavoidably and necessarily negated Webb's claim for "future TTD." Having done so, the order left no claim unresolved and was therefore final and appealable. See CR 54.02.
Indeed, page 10 of Webb's December 26, 2012 brief before the ALJ concisely framed this issue as follows:
The ALJ is positioned to choose between the testimony of an objective, treating physician responsible for and present at the majority of [Webb]'s medical treatment and the opinions of a DME doctor whose opinion is paid for by the Defendant. The decision is clear—the ALJ should find Mr. Webb has not reached Maximum Medical Improvement and order the Defendant/Employer to pay for the recommended referral to Leatherman Spine Center as well as any TTD benefits related to the future care.
The unspoken subjective intentions of an ALJ have little bearing upon how an order an ALJ has entered should be interpreted. A court, and by extension an administrative tribunal, speaks only through its written orders. Midland Guardian Acceptance Corp. of Cincinnati, Ohio v. Britt, 439 S.W.2d 313, 314 (Ky. 1968). However, because Webb has staked much upon what he believes was the ALJ's subjective intent to make an interlocutory order rather than a final order, we would point out that such a notion is flatly contradicted—not only by our discussion above, but also by the statement in the final paragraph in the ALJ's order that "All motions for approval of attorney's fees shall be filed with the Administrative Law Judge within thirty (30) days after the final disposition of this award." (Emphasis added.) All of the parties (including Webb) filed attorney fee motions within 30 days of the January 11, 2013 order, and all of these motions were, shortly thereafter, approved by the ALJ.
2. The CALJ's May 17, 2013 Order
Because the ALJ's January 11, 2013 order was final and appealable, Webb had a total of fourteen days thereafter to file a petition for reconsideration if he believed the order contained a patent error. See KRS 342.281. Alternatively, he had a total of thirty days from January 11, 2013, to file a notice of appeal to the Workers' Compensation Board. See 803 Kentucky Administrative Regulations (KAR) 25:010 Section 21(2)(a). He did neither.
Instead, roughly sixty days later, Webb filed a "motion for interlocutory relief for payment of temporary total disability." This motion asserted (incorrectly) that the ALJ had only determined that Webb had achieved MMI for his September 1, 2011 injury and that the ALJ had not resolved whether Webb had reached MMI for his April 22, 2010 injury. Webb's motion also requested TTD income benefits and "back due" TTD income benefits for his April 22, 2010 injury. In support, Webb attached new evidence to his motion in the form of a March 1, 2013 note from his most recent treating physician, Dr. David Holland. Dr. Holland's three-sentence note stated that Webb was not at maximum medical improvement from the April 22, 2010 injury and had not been at MMI when he evaluated Webb on February 8, 2013. The note also referred to a letter Dr. Holland had written regarding this subject on February 8, 2013, but that letter was not attached to Webb's motion, nor is it otherwise of record.
Only KEMI responded to Webb's motion. Its response was simply to the effect that Webb's award had been finally adjudicated; the ALJ had subsequently lost jurisdiction of the matter; and that rather than filing the motion he had filed, Webb's proper recourse was instead to file a motion to reopen his award pursuant to KRS 342.125(1)(d) to allege a worsening of his impairment.
By the terms of the ALJ's January 11, 2013 order, only KEMI would have been liable for providing Webb with benefits due to circumstances arising after April 9, 2012. Webb's motion alleged entitlement to TTD as of February 8, 2013.
Afterward, Webb replied to KEMI's response by again contending that the January 11, 2013 order was interlocutory. However, he also urged that his motion could be viewed in the alternative as a motion to reopen his award pursuant to KRS 342.125(1)(d).
What happened next remains a point of confusion for Webb. According to what he represents in his brief before this Court,
[Webb's] Motion for Interlocutory Relief was wrongfully placed on the [Frankfort] motion docket when it should have been remanded to ALJ Coleman for decision. The reasons why this motion was addressed through the Workers' Compensation Frankfort docket are unknown. It is possible that Judge Coleman's office inadvertently sent the file back to Frankfort. In any event, the Opinion and Order of January 11, 2013 having been interlocutory in nature, ALJ Coleman should have kept the file in his
office, and the motion should have been reassigned to ALJ Coleman for review.
As Webb indicates, the ALJ who entered the January 11, 2013 order did not address his "motion for interlocutory relief for payment of temporary total disability." Webb's motion was instead treated as a motion to reopen a final judgment pursuant to KRS 342.125(1)(d) and, as such, was forwarded to the Department of Workers' Claims motion docket and reviewed by the Chief Administrative Law Judge (CALJ). There, the CALJ considered Webb's motion in an initial order of April 18, 2013, and determined in relevant part:
ALJ Coleman, in his January 11, 2013 Opinion and Order, addressed the issues reserved in the settlement agreement. [Webb's] argument that ALJ Coleman retains jurisdiction over these consolidated claims is not accurate. In order to obtain the relief [Webb] is seeking, a motion to reopen is required. Unfortunately, his motion to reopen is defective, as [Webb] has failed to attach the required documents to his motion to reopen in compliance with KRS 342.125 and 803 KAR 25:010 4(6)(a).[]
The CALJ acknowledged that Webb's motion included Dr. Holland's March 1, 2013 note, but did not regard it as medical evidence capable of supporting a prima facie case for reopening because, as noted, it was devoid of any specific information regarding Webb's condition and largely referenced, and was based upon, a letter that does not exist in the record.
The CALJ's order also granted Webb an additional twenty days to supplement his motion with evidence sufficient to support a prima facie case for reopening the January 11, 2013 order.
As an aside, we find no error in what transpired procedurally up to this point. The ALJ's January 11, 2013 order was final. Having missed his deadline to appeal it, filing a motion to reopen was, as the CALJ held, the only way for Webb to have requested additional TTD due to his April 22, 2010 injury. Moreover, Webb had alternatively styled his motion as a motion to reopen. His motion essentially alleged a post-award (i.e., as of February 8, 2013) increase of occupational disability due to the worsening of his April 22, 2010 injury. And, contrary to the applicable rules, Webb's motion was not accompanied with evidence supporting a prima facie case, which is a prerequisite to reopening a worker's compensation award. See Hall v. Hospitality Resources, Inc., 276 S.W.3d 775, 779-80 (Ky. 2008); see also 803 KAR 25:010 Section 4(6)(a)3 (motion to reopen due to increased disability must include, among other things, "A current medical report showing a change in disability established by objective medical findings").
The CALJ did, however, commit error in resolving what Webb filed in response to the April 18, 2013 order. On April 30, 2013, rather than supplementing the record with evidence sufficient to support a prima facie case for reopening, Webb moved the CALJ for a remand to the ALJ who rendered the January 11, 2013 order. The basis of Webb's motion was, once again, that the ALJ's January 11, 2013 order was interlocutory and that it would remain so until the ALJ resolved his claim for "future TTD." And, on May 17, 2013, the CALJ set aside his prior order of April 18, 2013, granted Webb's motion, and "remanded" the case back to the ALJ for additional findings of fact regarding Webb's claim for "future TTD."
On June 10, 2013, KEMI appealed the CALJ's May 17, 2013 order to the Workers' Compensation Board. KEMI argued, among other things, that no authority permitted the CALJ to order another ALJ to conduct further proceedings on a claim that was no longer pending before that ALJ and for which a final decision had already been issued. Shortly afterward, Webb moved the Board to dismiss KEMI's appeal. In support, he argued that the CALJ's May 17, 2013 order was also interlocutory and was therefore not subject to the Board's appellate jurisdiction.
After considering these arguments, the Board resolved this matter in an order and opinion which provided, in relevant part:
In this instance, we believe the opinion and order rendered January 11, 2013 was final and appealable. No appeal was taken from that decision and therefore the ALJ's determinations are final. While the December 2012 settlement agreement reflects the issue of entitlement to future TTD benefits was preserved, no evidence was submitted establishing entitlement to such benefits after that date. A determination of entitlement to additional TTD benefits can only be made upon evidence supporting an actual period of such disability, not at some unknown time in the future. In this instance, Webb is required to file a motion to reopen with all required attachments, present a prima facie case, and upon such determination, the claim may then be assigned to an ALJ for further determination. The CALJ had no authority to remand the claim to the ALJ for further determination.
Accordingly, the order entered by Hon. J. Landon Overfield, Chief Administrative Law Judge is VACATED and REMANDED for a ruling consistent with the views expressed herein. Webb's motion is GRANTED and this appeal is DISMISSED.
Following the Board's decision, Webb filed the instant appeal. As he did below, Webb argues that the ALJ's January 11, 2013 order was interlocutory because it did not resolve his claim for "future TTD." For the reasons previously discussed, his argument has no merit. The Board correctly determined that the January 11, 2013 order was final; could no longer be directly appealed; and could only be reopened in conformity with applicable statutory and regulatory guidelines.
The more difficult issue Webb raises is how the Board managed to acquire the jurisdiction and authority to make that determination and to accordingly vacate the CALJ's May 17, 2013 order. Webb's motion to dismiss specifically raised this issue and the Board's only stated explanation was that "the CALJ exceeded his authority."
By simultaneously granting KEMI relief from the CALJ's May 17, 2013 order and dismissing its appeal from that order, the Board appears to have regarded KEMI's appeal as something akin to a petition for an administrative writ of mandamus or prohibition and as an unauthorized, interlocutory appeal. If KEMI's appeal were properly characterized as either, the Board's only option would have been to dismiss KEMI's appeal. The Board has no authority to entertain an administrative writ of mandamus or prohibition or to review an interlocutory order. Reisinger v. Grayhawk Corp., 860 S.W.2d 788, 790 (Ky. App. 1993).
The only basis for dismissing KEMI's appeal asserted by Webb was that the CALJ's May 17, 2013 order was interlocutory. The Board's order and opinion granted Webb's motion and accordingly dismissed KEMI's appeal. Although the Board's order and opinion does not state that the CALJ's May 17, 2013 order was interlocutory, that finding is implicit.
Nonetheless, we affirm the Board's decision to vacate and remand the CALJ's May 17, 2013 order because, as explained below, doing so was within the Board's appellate jurisdiction under the circumstances of this case.
In Davis v. Island Creek Coal Co., 969 S.W.2d 712 (Ky. 1998), a worker's compensation case, the Kentucky Supreme Court reviewed the test for determining when an order of remand by an appellate tribunal is final and appealable to a higher court:
(1) If the circuit court order[] either set aside the board's award or authorized the board to enter a different award, then the order deprived a party of a vested right and was final and appealable. . . .Id. at 713-14 (internal citations omitted).
(2) If the circuit court order only remanded the case to the board with directions to comply with statutory requirements without authorizing the taking of additional proof or the entry of a different award, the order was interlocutory and not appealable.
As Davis, 969 S.W.2d at 713 explains, in the pre-1987 Kentucky worker's compensation cases where this test originated, the Board was the adjudicatory body and the circuit court was the first appellate tribunal. Since then, the ALJ has become the adjudicator and the Board has taken on the circuit court's role as the first appellate tribunal. While these roles have changed, this test remains the same.
Applying this test, the Davis Court then explained:
In the case sub judice, the board's order set aside an award in favor of Appellant and remanded the case with directions to determine whether the employer's failure to file a timely notice of resistance was for "good cause," and, presumably, if so, to take additional proof and enterId. at 714. See also Inland Steel Co. v. Newsome, 281 Ky. 681, 136 S.W.2d 1077 (1940) (applying the above test and determining that a circuit court's order remanding a worker's compensation case to the Board was appealable as a final order because it impliedly conferred upon the Board, upon remand, the power to make an award in favor of the claimant and, thus, deprived the employer of a vested right not to be liable for an award).
a new order. Since this order allowed the ALJ on remand to divest Appellant of his vested right to a RIB award, it was final and appealable to the Court of Appeals.
Here, KEMI had vested rights deriving from the ALJ's January 11, 2013 order. Specifically, KEMI had the right to face no direct appeal from that order; the right to rely upon the ALJ's determination in that order that Webb had reached MMI for all of his injuries on April 9, 2012; the right to be excused from paying Webb TTD income benefits for any period between December 18, 2012 (the date of MMI) and January 11, 2013 (the date of the ALJ's order); and, subject only to Webb's ability to reopen his award and successfully demonstrate a worsening of his occupational disability, KEMI also had the right to remain free of liability for paying Webb TTD income benefits for any period following January 11, 2013.
KRS 342.270(1) requires a worker to raise all known causes of action against the employer during the pendency of the application for benefits. With this in mind, Webb has never asserted a claim for TTD for the period between December 18, 2012 (the date of the settlement) and January 11, 2013 (the date of the ALJ's opinion); he has only asserted a claim for TTD beginning as of February 8, 2013—after the January 11, 2013 order.
Also, the CALJ's May 17, 2013 order of remand divested KEMI of those rights. By finding the January 11, 2013 order to be interlocutory and requiring the ALJ to resolve and make additional findings of fact regarding Webb's claim of future TTD, the CALJ was not only revitalizing Webb's right to directly appeal any of the ALJ's determinations that were made final by the entry of that order; the CALJ was also impliedly authorizing the ALJ to revise his prior determination of when Webb had achieved MMI.
Moreover, in entering the May 17, 2013 order, the CALJ was exercising power that properly belonged to an appellate tribunal. This is because 1) the May 17, 2013 order rested upon the CALJ's determination that the January 11, 2013 order was not sufficient to invoke the Board's jurisdiction; and 2) the May 17, 2013 order effectively remanded a fully adjudicated claim back to an administrative law judge for further proceedings, which the statutes authorize the Board to do—not the CALJ. See KRS 342.285(3).
Allowing the CALJ to make a binding determination regarding the finality of an ALJ's order would effectively allow the CALJ to invade the inherent authority of an appellate tribunal to determine the bounds of its own jurisdiction. We are unaware of any authority that would permit a lower tribunal, much less a CALJ, to determine the jurisdiction of a higher tribunal. Moreover, the CALJ's cited authority for doing so, CR 54.02, merely provides language of restriction, not grant; it sets limitation upon the lower court's or ALJ's power to enter a "final judgment." Nothing in that rule suggests that a lower court, ALJ, or CALJ can make "final" that which was not "final" before, or vice-versa.
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By analogy, if the Board had decided to do (in a direct appeal of the January 11, 2013 order) what the CALJ did here (in what can only be described as an unauthorized collateral attack upon the January 11, 2013 order), the Board's decision could have been appealed to this Court per Davis, supra. For this reason, we hold that the CALJ's May 17, 2013 order was appealable and subject to the Board's review. And, because the CALJ clearly exceeded his authority by entering the May 17, 2013 order, we find no error in the Board's decision to vacate, remand to the CALJ, and direct the CALJ to treat Webb's action as a KRS 342.125 reopening proceeding.
CONCLUSION
The Board was authorized to review the CALJ's May 17, 2013 order and correctly vacated and remanded it for further proceedings. To that extent, we affirm. However, we vacate the Board's decision to dismiss KEMI's appeal.
ALL CONCUR. BRIEF FOR APPELLANT: Scott A. Wallitsch
Louisville, Kentucky
BRIEF FOR APPELLEE, ASI
PLUMBING, AS INSURED BY
KENTUCKY EMPLOYERS'
MUTUAL INSURANCE
COMPANY:
Judson F. Devlin
Louisville, Kentucky