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Neal v. Hy-Vee12/24/2003
ed its administrative remedies by securing a final order on the issue from the Board in its second appeal. See K.S.A. 2002 Supp. 44-556(a). As such, while the question reserved involves the Board's authority to remand, the second appeal of the employee is from a Board order and decision. Thus, this court has jurisdiction to consider the appeal.
Initial ALJ Award
Upon proper application for a hearing being filed pursuant to K.S.A. 44-534, a regular hearing was held in this case on January 12, 1999, before the Honorable Robert H. Foerschler, Administrative Law Judge (ALJ) for the Division of Workers Compensation of the State of Kansas in Overland Park. The employee appeared by telephone and by counsel. The employer and its insurance carrier appeared by counsel. The ALJ indicated in the regular hearing that the employer's motion to suspend the employee's benefits due to lack of a medical examination on behalf of the employer was to be handled at some future time.
Initially, the ALJ set forth information concerning the nature of the employee's employment, together with other jurisdictional information. In reference to the average weekly wage, the ALJ stated:
"There was no agreement, however, about average weekly wage although it was alleged that Mr. Neal's wages were $11.30 an hour plus overtime and a suggestion of $440 for the wage was made, but not agreed to. He was, however, paid about three weeks of temporary total disability totaling $983.12 and was not claiming any adjustable or any additional weekly benefits, but did request that the rating [award] be determined from the decision about the average weekly wage. . . . So the only issues remaining to be determined in this matter are really what Mr. Neal's average weekly wage was for this accident or injury and whether or not--once that's determined then probably an adjustment of the weekly temporary benefit rate will be made, and then a decision . . . . Does that cover about all the issues that anyone can suggest for this thing now?
"MR. KOLICH: I believe so, Judge. One clarification on the issue regarding nature and extent. It's my understanding that the claimant is not claiming compensation for a work disability, but rather the claim is simply for a functional impairment."
After further discussion on the record, the following was stated:
" : Okay. What needs to be done next? Do we need to set some terminal dates for conclusion of the matter? We better make it somewhat liberal since we've got some--
"MR. TREASTER: Judge, we have a deposition of Mr. Neal, that hopefully you have the original of, that was taken November 13, 1998 by telephone and Mr. Kolich participated in that. And we wanted to submit that as the testimony of Mr. Neal. And, you know, if Mr. Kolich wants to take any additional testimony he would obviously have the right to do that and we could provide for that. We do need to take Dr. Zimmerman's testimony and we have not set a date for that, but that's really the only thing that we would propose doing on behalf of the claimant.
" : . . .What more do we need to do today? We need to get some terminal dates. Give me some suggestions on what you're going to need to finish it up."
(Emphasis added.)
The employee's counsel responded that he needed to take the deposition of Dr. Zimmerman, and the ALJ gave him until March 30, 1999. The issue of the motion to suspend proceedings was discussed, the ALJ asked counsel if they had anything further, and they replied no. The ALJ asked the employee if he had any questions, and he responded, "I haven't heard anything. I haven't. More or less I just haven't heard anything.
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