LOUISVILLE FIRE AND BRICK WORKSv. JOHN D. ROAR; DIVISION OF WORKERS' COMPENSATION FUNDS, SUCCESSOR TO SPECIAL FUND; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION FUND
Annotate this Case
Download PDF
RENDERED: SEPTEMBER 20, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000556-WC
LOUISVILLE FIRE AND BRICK WORKS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-20576
JOHN D. ROAR; DIVISION OF WORKERS’
COMPENSATION FUNDS, SUCCESSOR TO
SPECIAL FUND; DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION FUND
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND TACKETT, JUDGES.
McANULTY, JUDGE:
Louisville Fire and Brick Works (LF&B)
petitions for review from a decision of the Workers’ Compensation
Board affirming the decision of the Administrative Law Judge
(ALJ) that John D. Roar is totally disabled as a result of a May
1995 injury to his back, and determining that, following remand
from the initial round of appeals, the ALJ did not violate the
law of the case doctrine by assessing a total occupational
disability for the injury.
We affirm.
On May 8, 1995, Roar injured his lumbar spine in a work
accident while lifting a kiln at Louisville Fire and Brick Works.
At the time of the incident, Roar felt a sharp pain in his back
which radiated down his leg.
Later that week, he sought medical
treatment and, ultimately, underwent a diskectomy. In December
1995, Roar returned to light-duty work at LF&B.
Subsequent to the accident, Roar developed
psychological problems.
Mental status examinations revealed that
Roar had abnormalities of judgment, insight, and low average
intellectual functioning.
On March 10, 1997, Roar sustained a
heart attack and underwent coronary artery bypass graphing.
Roar
has not returned to work since that date.
On December 1, 1997, Roar filed an application for
resolution of injury claim with the Department of Workers’
Claims.
In the application, Roar alleged that he sustained a
work-related injury to his back and legs on May 8, 1995, and
subsequently developed depression.
ALJ on June 10, 1999.
A hearing was held before the
On July 22, 1999, the ALJ entered an
opinion and award determining that Roar was suffering a total
occupational disability “based solely upon Plaintiff’s physical
and psychiatric conditions.”
LF&B subsequently appealed to the
Board.
On February 11, 2000, the Board rendered an opinion
reversing and remanding the case to the ALJ on the basis that the
ALJ had considered Roar’s psychiatric condition in his award of
benefits.
The Board concluded that the ALJ had erred in
determining that Roar’s psychological condition was related to
-2-
his May 8, 1995, injury.
However, the Board also determined that
the medical evidence presented to the Board did not preclude a
finding of total occupational disability absent the effects of
his psychological condition.
The Board remanded the case to the
ALJ for a benefit award determination which excluded
consideration of Roar’s psychological condition.
In response to
the Board’s ruling, LF&B petitioned, and Roar cross-petitioned,
for review by this Court.
On April 6, 2001, we rendered an
opinion affirming the Board’s decision.1
The case was
subsequently remanded back to the ALJ.
On July 23, 2001, the ALJ entered an order which,
consistent with the Board’s decision, determined that Roar’s
psychological condition was noncompensable.
However, the ALJ
determined that Roar was totally occupationally disabled solely
as a result of his back injury.
On August 30, 2001, the ALJ
entered an order denying LF&B’s petition for reconsideration.
LF&B subsequently appealed to the Board.
On February 13, 2002,
the Board entered an opinion upholding the ALJ’s determination
that Roar was 100% occupationally disabled as a result of his
back injury alone.
LF&B then petitioned for review by this
Court.
LF&B contends that the ALJ’s determination on remand
that Roar was totally disabled solely because of his back injury
was a violation of the law of the case doctrine.
LF&B alleges
that because in his original opinion the ALJ determined that Roar
was totally occupationally disabled due to the combination of the
1
See Case No. 2000-CA-000631-WC
-3-
back injury and his psychiatric conditions, the subsequent
reversal by the Board on the basis that Roar’s psychiatric
condition was noncompensable necessarily determined that Roar’s
disability solely as a result of the back injury was something
less than total.2
The law of the case doctrine provides that “[w]hen an
appellate court decides a question concerning evidence or
instructions, the question of law settled by the opinion is final
upon a retrial in which the evidence is substantially the same
and precludes the
second appeal.”
reconsideration of the claimed error on a
Siler v. Williford, Ky., 375 S.W.2d 262, 263
(1964); H.R. ex rel. Taylor v. Revlett, Ky. App., 998 S.W.2d 778,
780 (1999).
The court to which the case is remanded is without
power to entertain objections or make modifications in the
appellate court decision.
S.W.2d 54, 55 (1959);
City of Lexington v. Garner, Ky., 329
E'town Shopping Center, Inc., v. Holbert,
Ky., 452 S.W.2d 396, 397 (1970).
Questions decided by the Board,
unless reversed by a higher tribunal, establish the law of the
case as to further proceedings before the ALJ.
See
Whittaker v.
Morgan, Ky., 52 S.W.3d 567, 569-570 (2001).
We are persuaded that neither the Board’s decision of
February 11, 2000, nor this Court’s opinion of April 6, 2001,
affirming the Board precluded a finding by the ALJ on remand that
Roar suffered a total permanent disability solely as a result of
his May 8, 1995 back injury.
To the contrary, we construe the
2
LF&B does not suggest a proposed occupational disability
assessment.
-4-
two decisions as having not placed a limitation on the ALJ’s
deliberations on remand.
One of the issues in the initial round of appeals was
whether Roar’s returning to light duty work precluded a finding
by the ALJ of total occupational disability.
In its February ll,
2000 opinion, the Board stated as follows:
Given the evidence in the instant case, we do
not believe the fact that Roar returned to
work at light duty for over a year precludes
a finding of total disability due to the May
1995 injury. We note that Roar testified
that his back condition continued to worsen
while he was working. Roar also testified
that he did not feel he could return to his
regular job or any work he has done in the
past because of his back condition. The
claimant’s own testimony can be evidence of
probative value in making a determination of
occupational disability. (Citation omitted).
Given these facts, we do not find that the
fact that Roar returned to work for a period
of time precludes a finding of total
occupational disability. (Emphasis added.)
The Board, however, determined that the ALJ erred in
considering Roar’s psychological condition in his analysis of
Roar’s occupational disability because the medical evidence
reflected that, at best, Roar’s psychological condition may be
related to his low back injury.
In reversing the ALJ, the Board
stated
Although it may have been possible for the
ALJ to have made a valid finding of total
occupational disability based solely upon
Roar’s physical problems, we believe it was
error for the ALJ to include Roar’s
psychological condition in assessing the
extent and duration of his disability.
(Emphasis added.)
In our April 6, 2001, opinion, we affirmed the Board,
citing portions of the same language quoted above.
-5-
There is
nothing in this Court’s opinion which would have mandated that,
on remand, the ALJ determine that the work injuries to Roar’s
back resulted in something less than a total occupational
disability.
The initial round of appeals determined as the law of
the case that Roar’s psychological condition was not workrelated.
However, those appeals did not decide that the work-
injuries alone could not support an award of a total occupational
disability.
We reject LF&B’s interpretation that the opinions
precluded a finding of total disability on remand.
To the
contrary, the opinions in the initial appeals explicitly left
open this possibility, and, if anything, it was the law of the
case on remand that it was permissible for the ALJ to assess a
total disability based solely on the work-related accident.
We further adopt the following language of the Board’s
February 13, 2002, opinion:
[W]e believe that ALJ Smith acted properly in
issuing his orders of July 23, 2001 and
August 30, 2001. By revisiting Roar’s claim
on remand as to the extent and duration of
disability caused solely by the effects of
his physiological injuries, the ALJ was
simply following the directives established
by both [the] Board and the Court of Appeals.
The ALJ also properly excluded any disability
potentially resulting from the respondent’s
alleged secondary psychological overlay.
Consequently, we find nothing inconsistent
with regards to the “law of the case”
doctrine in the ALJ’s application of his
instructions on remand. As was within his
authority as fact-finder, after further
deliberation and review, the ALJ remained
persuaded that Roar suffers from total and
permanent occupational disability as a result
of his back condition alone. In that there
is substantial evidence of record to support
-6-
the determinations made by ALJ Smith in
completing this process, as a matter of law,
we affirm. Special Fund v. Francis, Ky., 708
S.W.2d 641 (1986); Hush v. Abrams, Ky., 584
S.W.2d 48 (1979).
As the Board has not overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice,
we affirm. Western Baptist Hospital. v. Kelly, Ky., 827 S.W.2d
685, 687-88 (1992).
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WORKERS’
COMPENSATION FUND:
W. BARRY LEWIS
LEWIS & LEWIS LAW OFFICES
LEXINGTON, KENTUCKY
JOEL D. ZAKEM
FRANKFORT, KENTUCKY
BRIEF FOR APPELLEE JOHN D.
ROAR:
Maxwell L. Hammond
Grayson, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
