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September 2, 2016 201285243

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  September 2, 2016

 

 

CLAIM NO. 201285243

 

 

STERLING VENTURES, LLC                         PETITIONER

 

 

 

VS.        APPEAL FROM HON. OTTO DANIEL WOLFF,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

ANGELA COMMON, DECEASED;

ESTATE OF ANGELA COMMON,

VINCEN ROGERS ADMINISTRATOR;

MONICA WILLOUGHBY INDIVIDUALLY AND AS

MOTHER AND NATURAL GUARDIAN OF

CARTER WILLOUGHBY;

STERLING L. STANFIELD INDIVIDUALLY AND AS

FATHER AND NATURAL GUARDIAN OF

CODY L. STANFIELD AND

CLIFFORD STANFIELD;

CODY L. STANFIELD AND

CLIFFORD STANFIELD AND

HON. OTTO DANIEL WOLFF,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION AND ORDER

DISMISSING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.  Sterling Ventures, LLC (“Sterling”) seeks review of an Opinion and Order rendered July 12, 2016, by Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”). 

          As noted by the ALJ, Angela Common (“Common”) was killed while operating a truck in the course of her employment with Sterling.  Sterling and its insurer, Kentucky Employers’ Mutual Insurance, filed a Form 101 seeking a determination regarding the identity of Common’s dependents, and their respective rights to decedent’s benefits.  During the litigation of the claim, the ALJ became concerned two of Common’s alleged dependents were minors and not represented.  The ALJ specifically noted, “The undersigned is reluctant to make a finding Cody and Clifford are not entitled to share in their mother’s death benefit without their possible interest being protected and pursued by competent, and perhaps court-appointed, legal counsel.”

          In the order portion of his July 12, 2016 decision, the ALJ stated as follows:

1. Based upon the above this claim cannot be appropriately resolved until the interests of Cody and Clifford are properly protected and pursued with the assistance of legal counsel.  This claim is NOT placed in abeyance.

 

2.  It is hereby certified pursuant to 803 KAR 25:010 §18 that the above Opinion and Order was rendered and copies were deposited in the United States mail to the parties listed below on this the 12 day of July 2016.

 

          The ALJ made no findings regarding any of the issues before him.  Clearly, this order is not final and appealable.  Because we conclude the ALJ’s July 12, 2016 ruling is interlocutory and does not represent a final and appealable order, we dismiss this appeal.  

803 KAR 25:010 Sec. 21 (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.

 

803 KAR 25:010 Sec. 21 (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).  

After reviewing the file, it is clear the order rendered July 12, 2016 is interlocutory, and as such is not final and appealable as it does not operate to terminate the action or finally decide all outstanding issues.  Likewise, it does not operate to determine all the rights of the parties so as to divest the ALJ once and for all of the authority to decide the merits of the claim. 

          That said, the appeal filed by Sterling is hereby dismissed, and the claim is remanded to the ALJ to conduct all proceedings necessary for final adjudication of the claim.  Sterling may request the ALJ to re-docket the claim and make any determinations to reach a final determination.

          Accordingly, IT IS HEREBY ORDERED AND ADJUDGED the appeal seeking review of the interlocutory decision rendered July 12, 2016 by Hon. Otto Daniel Wolff, IV, Administrative Law Judge, is DISMISSED.

          ALL CONCUR.

 

 

                             ____________________________

                             MICHAEL W. ALVEY, CHAIRMAN

                             WORKERS’ COMPENSATION BOARD

 


 

COUNSEL FOR PETITIONER:

 

HON W BARRY LEWIS

PO BOX 800

HAZARD, KY 41702

 

COUNSEL FOR RESPONDENT:

 

HON JUSTIN L LAWRENCE

6900 HOUSTON RD, STE 19

FLORENCE, KY 41042

 

RESPONDENTS:

 

ESTATE OF ANGELA COMMON

VINCEN ROGERS, ADMINISTRATOR

333 HAGAN MILL ROAD

RICHMOND, KY 40475

 

VINCEN ROGERS

PO BOX 5880

CHARLESTON, OR 97420

 

MONICA WILLOUGHBY

129 KENTUCKY STREET

WINCHESTER, KY 40391

 

STERLING L STANFIELD

PO BOX 14

OLYMPIA, KY 40358

 

CODY L STANFIELD

PO BOX 14

OLYMPIA, KY 40358

 

CLIFFORD STANFIELD

PO BOX 14

OLYMPIA, KY 40358

 

CHIEF ADMINISTRATIVE LAW JUDGE:

 

HON ROBERT L SWISHER

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601