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Workers’
Compensation Board
OPINION ENTERED: August 18, 2017
CLAIM NO. 201501915
ROGER SOARD PETITIONER
VS.
APPEAL
FROM HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE
SUPER SERVICES, LLC
AND HON TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
DISMISSING
AND REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Roger Soard
(“Soard”) appeals from the January 24, 2017 Opinion,
Award and Order and the May 1, 2017 Order rendered by Hon. Tanya Pullin, Administrative Law Judge (“ALJ”). The ALJ awarded temporary total disability
(“TTD”) and medical benefits for a biceps tendon injury, but dismissed Soard’s claim for carpal tunnel syndrome and a shoulder
injury. On appeal, Soard
argues the ALJ’s decision is contrary to the evidence, is not in conformity
with the Act, and is arbitrary, capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of discretion. Because Soard’s
appeal is not taken from a final and appealable decision, we must dismiss the
appeal and remand for further proceedings.
Soard alleged injuries to his
right upper extremity on September 22, 2014 when cranking on a dolly and on
February 17, 2015 when picking up a brake drum.
By order dated June 23, 2016, the claim was bifurcated because Soard was not at maximum medical improvement from rotator
cuff surgery in February 2016. The Order
indicated the claim would proceed on the issues of notice, causation,
work-relatedness, medical treatment and entitlement to TTD benefits.
The ALJ issued an Opinion, Award and Order on January 24,
2017 finding Soard’s carpal tunnel syndrome is not
work-related, that Soard failed to prove a right
shoulder injury on September 22, 2014, and that the February 2015 incident
produced only a rupture of the long head of the biceps tendon. For the injury to Soard’s
biceps tendon, the ALJ determined the date he reached maximum medical
improvement and awarded TTD benefits from May 1, 2015 to May 18, 2015, and
medical benefits.
Soard filed a petition for
reconsideration arguing a reference in Dr. Mark R. Secor’s
records to shoulder pain since 2012 was an apparent clerical error and that the
ALJ failed to address entitlement to permanent partial disability (“PPD”)
benefits for the biceps tendon injury.
In the May 1, 2017 Order ruling on the petition for reconsideration, the
ALJ noted the claim had been bifurcated on the issue of compensability of the
injuries except for the issue of permanent impairment because Soard was not at MMI.
The bifurcation was also noted in the Benefit Review Conference Order of
May 13, 2016. Therefore, the ALJ ruled
“no consideration of PPD was proper” in the Opinion, Award and Order.
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) provides:
(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
re-adjudicate 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.
Therefore, 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); Transit Authority of River City vs. Sailing,
774 S.W.2d 468 (Ky. App. 1980).
Although the ALJ’s decision in this claim is not styled as interlocutory, it is a decision on a bifurcated claim and does not resolve all matters of the claim. As noted in the order on reconsideration, no consideration of PPD was proper in the Opinion, Award and Order of January 24, 2017. The ALJ determined the February 17, 2015 incident resulted in a rupture of the biceps tendon for which at least a period of TTD for which income and medical benefits were payable. Because the issue of PPD was not properly before the ALJ, she made no findings regarding the permanency of the biceps tendon injury and the permanent impairment rating, if any. As such, the decision appealed from does not meet the above requirements and we are without authority to address Soard’s arguments.
Accordingly, Soard’s appeal of the January 24, 2017 Opinion, Award and Order and the May 1, 2017 Order rendered by Hon. Tanya Pullin, Administrative Law Judge, is hereby DISMISSED. This claim is REMANDED to the ALJ for further proceedings.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 SOUTH MAIN ST
LONDON, KY 40741
COUNSEL
FOR RESPONDENT:
HON SHERRI KELLER
300 EAST MAIN STREET, SUITE 400
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON TANYA PULLIN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
