FORD MOTOR COMPANY V. WILLIAM GUEST; ROBERT E. SPURLIN, Director of SPECIAL FUND; ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
December 24, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-643-WC
FORD MOTOR COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-89-4372
V.
WILLIAM GUEST; ROBERT E. SPURLIN,
Director of SPECIAL FUND; ROGER D.
RIGGS, Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION AND ORDER DISMISSING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GUIDUGLI and SCHRODER, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an opinion of the Workers' Compensation Board (board),
which reversed and remanded an opinion and award of an
Administrative Law Judge (ALJ) with directions to make further
findings.
For the reasons stated hereafter, we dismiss the
petition as having been taken from a nonfinal, nonappealable
order.
In 1988, appellee William Guest sustained a
work-related back injury.
On November 22, 1989, an ALJ approved
a settlement of Guest's claim for disability benefits on the
basis that Guest suffered from a 15% occupational disability as a
result of the injury.
On June 28, 1995, Guest filed a motion to reopen the
claim.
After a hearing, the ALJ rendered an opinion and award
finding that Guest failed to meet his burden of establishing that
his worsened condition was work related.
On appeal, the board
stated in relevant part as follows:
Here, there certainly is
substantial evidence for the ALJ to have
made a finding that the surgery
performed by Dr. Cowles in 1991 may not
have been causally related to his work
activities. Thus, the ALJ could
conclude that necessary elements of
work-relatedness, in order to recover
for a claim made at that time, had not
been sufficiently provided by plaintiff.
However, Guest points out that he
believes the ALJ was confused as to
additional contested issues preserved
for adjudication. Was there a worsening
of Guest's physical condition and/or his
occupational disability causally related
to his August 1988 injury and subsequent
disc surgery at the L5-S1 disc level on
the left? That question was simply not
addressed by the ALJ in his Opinion.
Further, the ALJ's determination fails
to address whether he was dismissing the
reopened claim, and if so, the reasoning
for such a dismissal.
. . . .
While it is true that the ALJ,
pursuant to KRS 342.125, may look at all
of the elements of a claim in connection
with Guest's 1988 injury, we are simply
unable to conclude that the ALJ's
finding on reopening was related to a
determination of nonwork-relatedness as
to the August 1988 injury. While the
ALJ may have made a determination
relevant as to whether or not there was
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a work-related injury necessitating the
subsequent 1991 surgery to Guest's back,
we are unable to provide meaningful
appellate review on conjecture and, most
certainly, cannot substitute our
judgment for that of the ALJ. KRS
342.285.
Thus, the board reversed the order and remanded the claim to the
ALJ for further findings consistent with its opinion.
Clearly, the board's opinion herein did not serve
either to terminate this litigation, or to finally resolve the
issue of whether appellee was entitled to an additional award of
benefits on reopening.
Moreover, the opinion did not operate to
determine the parties' rights in a manner divesting the board of
power.
Rather, the board's opinion merely remands this matter
for further findings.
Subsequently, either party may choose to
seek additional review by the board and this court.
That being
so, we are constrained to conclude that the board's decision
herein is neither final nor appealable.
King Coal Co. v. King,
Ky. App., 940 S.W.2d 510 (1997).
For the reasons stated, this appeal is hereby ORDERED
dismissed.
ALL CONCUR.
ENTERED:December 24, 1997
s/s Paul D. Gudgel
CHIEF JUDGE, COURT OF APPEALS
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BRIEF FOR APPELLANT:
BRIEF FOR WILLIAM GUEST:
William P. Swain
Wesley G. Gatlin
Louisville, KY
Robert M. Lindsay
Finn Robert Cato
Louisville, KY
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Louisville, KY
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