Opinion
NO. 2014-CA-001154-WC
04-10-2015
COMMONWEALTH OF KENTUCKY UNINSURED EMPLOYER'S FUND APPELLANT v. TERRY WERNER; BOB RYAN AUTO SALES; HON. OTTO DANIEL WOLFF, IV, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Paul D. Adams Frankfort, Kentucky BRIEF FOR APPELLEE, TERRY WERNER: Christopher P. Evensen Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-01393
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KRAMER, JUDGES. KRAMER, JUDGE: The Uninsured Employers' Fund ("UEF") appeals from a January 7, 2014 order of an Administrative Law Judge ("ALJ") awarding Terry Werner workers' compensation benefits due to what the ALJ found was a left knee injury Werner sustained in a January 8, 2008 work-related motor vehicle accident ("MVA"). Upon review, we affirm.
By way of background, the ALJ originally determined that Werner was not entitled to workers' compensation benefits. The ALJ's decision was subsequently vacated and remanded by the Workers' Compensation Board (the "Board"). The Board expressed no opinion regarding the outcome of the remand, but it directed the ALJ on remand to "review the evidence, and clearly and unambiguously determine whether Werner sustained a work-related injury to his left knee as a result of the MVA. The ALJ shall support his determination with the appropriate findings of fact." Following remand, the ALJ entered an award in favor of Werner based upon a finding, contrary to what was previously found, that Werner had indeed suffered a work-related injury to his left knee resulting from the MVA. The UEF then appealed to the Board, which affirmed. Afterward, the UEF appealed to this Court.
The sole argument the UEF raised before the Board, and now before this Court, is that the ALJ had no authority to enter an award in favor of Werner because the ALJ had already determined, in a decision which the Board subsequently vacated, that Werner was not entitled to an award of workers' compensation benefits. In support, the UEF relies upon Bowerman v. Black Equipment Co., 297 S.W.3d 858, 868 (Ky. App. 2009), which stands for the proposition that, absent newly discovered evidence, fraud, or mistake, an ALJ may not reverse his or her own previously-made factual findings. The UEF points out that there was no newly discovered evidence, fraud, or mistake that would have justified the ALJ reversing his own factual findings in this matter with respect to whether Werner was entitled to an award of benefits.
This argument misses the mark, however, because the ALJ did not reverse himself. Rather, the Board vacated the ALJ's decision and directed the ALJ to reconsider this matter pursuant to its authority under KRS 342.285(3). When any court or tribunal orders that a judgment, opinion, or order be set aside or vacated, that decision effectively cancels, annuls, or revokes the judgment, order, or opinion. See BLACK'S LAW DICTIONARY 1546 (7th ed. 1999) (defining "vacate" as "to nullify or cancel; make void; invalidate"). Thereafter, the judgment, order, or opinion is no longer binding or conclusive. First State Bank, Pineville v. Asher, 273 Ky. 574, 117 S.W.2d 581, 583 (1938). This means the vacated judgment no longer binds any litigant and, by logical extension, no longer binds the ALJ who rendered the vacated judgment. Thus, upon remand, the ALJ was free to reconsider the evidence and, in doing so, reevaluate the merits of Werner's claim. See, e.g., ABS Global, Inc. v. Draper, No. 2013-SC-000051-WC, 2014 WL 1514991 at *2 (Ky. April 17, 2014) (holding, in a situation where the Board's order vacated the ALJ's original opinion and order, "It is clear that the Board wanted the ALJ to fully review the evidence and either make findings to support his original opinion or reach a different conclusion on remand.").
The UEF takes umbrage with the fact that the Board, in its own review, cited as authority for this same proposition of law our unpublished opinion that preceded Draper, namely, ABS Global, Inc. v. Draper, No. 2012-CA-001146-WC, 2012 WL 6652825 (Ky. App. Dec. 21, 2012). Because the Kentucky Supreme Court reached exactly the same legal conclusion regarding the effect of a vacated order or judgment in its subsequent review of that matter, and because the UEF offers no sound reason to disagree, we find both of the respective Draper opinions to be persuasive authority on this point and proper to cite as fulfilling the criteria of Civil Rule (CR) 76.28(4)(c).
Next, the UEF argues that, in its view, the ALJ erroneously relied upon certain testimony of Werner's medical experts in determining that the MVA was the medical cause of Werner's left knee condition. However, this particular argument was not preserved. Our review of the record reveals that it was raised for the first time in the Petition for Review presented to this Court. Breeding v. Colonial Coal Co., 975 S.W.2d 914, 916 (Ky.1998) ( "Any party who seeks to appeal a decision of the Board to the court system must have preserved an assertion of error by having raised it first to the Board."); see also Scott v. AEP Kentucky Coals, LLC, 196 S.W.3d 24, 26 (Ky. App. 2006) (an alleged error which had not been raised prior to appeal to this court was unpreserved; it was subject to the ordinary standard of review only because it concerned a constitutional issue the Board was not authorized to address). Therefore, we will not consider it.
In short, the argument the UEF effectively raised in this appeal provides no basis for reversing the ALJ. We therefore AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Paul D. Adams
Frankfort, Kentucky
BRIEF FOR APPELLEE, TERRY
WERNER:
Christopher P. Evensen
Louisville, Kentucky