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 (
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