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Industrial Powder Coating v. Baker12/23/2004
ALJ finds on remand that the back condition was work-related, then Baker would be entitled to medical benefits related to the back problem.
On the issue of whether the ALJ erred in failing to order the award of benefits to commence on May 25, 2001 (the date of the motion to reopen) rather on January 25, 2002 (the date of the knee surgery), the Board found that the evidence was so overwhelming as to compel a finding in Baker's favor. It noted that Baker's condition improved following knee surgery and that the only logical conclusion to be drawn from the evidence was that his condition was worse prior to surgery.
The Board reversed the ALJ's opinion and award, and remanded it for further findings on the issue of work-relatedness of the back injury , and for an award of benefits commencing as of the date of the motion to reopen. This appeal followed.
Industrial now argues that the Board erred in finding the totality of the medical evidence so compelling as to require a reversal of the ALJ regarding the award commencement date. Citing KRS 342.285(2)(d)(e), it maintains that there is nothing in the record to indicate that the ALJ's decision on this issue was erroneous based on the reliable and probative material evidence submitted in this case. Industrial contends that the Board did not point to any evidence that would compel a contrary finding, and argues that it is entitled to a reversal on this issue.
Having closely examined the record and the law, we must conclude that the Board's opinion is not final and appealable. "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02."
The judgment 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. Furthermore, we stated in King Coal Company v. King, Ky. App., 940 S.W.2d 510 (1997) that, Pursuant to SCR 1.030(5) and 803 KAR 25:012 ยง 14, a final decision of the Board may be appealed to this court. An order of the Board is appealable only if it terminates the action itself, acts to decide the matter litigated by the parties, or operates to determine some rights in such a manner as to divest the Board of power.
In the matter at bar, the Board's action to reverse and remand for further findings on the issue of the work-relatedness of the back injury did not terminate the action itself, decide the matter litigated by the parties, or divest the Board of power. While the Board ruled in favor on Baker on the commencement date issue, the remanded back injury issue remains to be resolved. As the Board still has or will have jurisdiction over not only the remanded issue but the entire claim for benefits, its March 17, 2004, opinion is not final and appealable.
For the foregoing reasons, Industrial's appeal of the Workers' Compensation Board's March 17, 2004, opinion is ORDERED DISMISSED.
ALL CONCUR.
Page 1 2 Kentucky Personal Injury Attorneys
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