Spencer County Fiscal Court v. Gary Day ( 2023 )

RENDERED: FEBRUARY 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0802-WC
SPENCER COUNTY FISCAL COURT APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-20-90644
GARY DAY; HONORABLE
JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
EASTON, JUDGE: Spencer County Fiscal Court (“Spencer County”) petitions
this Court to review the opinion and order dismissing entered by the Workers’
Compensation Board (“Board”) on June 8, 2022. The Board determined the appeal
to the Board was interlocutory. We agree and affirm.
Gary Day (“Day”) was an employee of Spencer County on December
16, 2019. Day claims he was injured on that day in the course of his employment
when an ambulance tire fell on him. The injuries claimed relate to Day’s
shoulders. Spencer County presented evidence of prior shoulder issues to
challenge causation. With substantial evidence presented by both sides, the
Administrative Law Judge (“ALJ”) awarded temporary total disability (“TTD”)
benefits. The ALJ determined maximum medical improvement (“MMI”) had not
yet occurred. The ALJ entered the interlocutory opinion and order on March 16,
2022. The ALJ denied two petitions for reconsideration before the Board entered
its opinion and order dismissing.
With limited and specifically authorized exceptions, this Court may
not review interlocutory orders. See Druen v. Miller, 357 S.W.3d 547 (Ky. App.
2011). In the specific context of Workers’ Compensation, 803 KAR1 25:010 §
22(2)(b) defines final decisions subject to an appeal with reference to CR2 54.02.
If a decision resolves only some of the claims pending, finality may only be given
to such a decision if the decision recites finality language specified in CR 54.02(1).
The decision at issue does not recite this language.
1
Kentucky Administrative Regulations.
2
Kentucky Rules of Civil Procedure.
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The Board correctly applied the law. Absent application of CR 54.02,
an order of an ALJ is appealable if it terminates the action, decides all matters
subject to litigation by the parties in the case, or otherwise operates to determine all
the rights of the parties thus divesting the ALJ of jurisdiction. Tube Turns Division
v. Logsdon, 677 S.W.2d 897 (Ky. App. 1984). The decision questioned by
Spencer County here is interlocutory and not presently appealable.
The Court recognizes Spencer County’s argument for an exception to
be applied to allow an appeal at this time. Spencer County suggests such a lack of
a basis for the ALJ’s actions that review is needed now, despite the otherwise
interlocutory nature of the ALJ’s order. For example, Spencer County offers the
collateral order doctrine. But the collateral order doctrine does not apply in the
circumstances presented by this case, and the Kentucky Supreme Court has
recently further restricted the application of that doctrine in Workers’
Compensation cases. See Sheets v. Ford Motor Company, 626 S.W.3d 594 (Ky.
2021).
If changes should be made to allow an appeal of an ALJ’s decision
like the one in this case, that is a matter for legislative or executive branch action.
This Court should not act to create such policies. Rather, this Court must act
within the confines of its jurisdiction as established by law.
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The Appellees seek an award of attorney’s fees because they contend
this appeal is frivolous. We are granted discretion to award such fees as a sanction.
RAP3 11(B) (formerly CR 73.02(4)). To do so, we must find the appeal “so totally
lacking in merit that it appears to have been taken in bad faith.”4
We decline to award the requested fees in this case. Spencer County
has raised concerns about the substantial monetary impact of interlocutory
decisions in Workers’ Compensation cases. While this Court may not disregard
the law or alter the law within the province of the other branches of state
government, we cannot say the request to apply an exception to permit an appeal of
the interlocutory order in this situation was totally lacking in merit. The appeal
may be seen as a good faith argument for modification or reversal of existing law.5
The opinion and order dismissing of the Workers’ Compensation
Board is AFFIRMED.
ALL CONCUR.
3
Kentucky Rules of Appellate Procedure.
4
RAP 11(B).
5
RAP 11(A)(1).
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE GARY
DAY:
Christopher M. Mayer
Thomas L. Ferreri Timothy J. Wilson
Louisville, Kentucky Lexington, Kentucky
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