Bowerman v. Black Equipment Company, No. 2008-CA-000828-WC (Ky. App. 2009) (designated to be published). Bowerman filed a claim for benefits in April of 2005. The evidence, while conflicting, established that Bowman had not attained maximum medical improvement (MMI), and per his treating physician had not been able to return to his regular work duties. He had briefly returned to light duty work but testified even this employment aggravated his back so his treating physician took him back off work. The employer’s independent medical examiner, however, found Bowerman could return to his previous duties and had attained MMI.

At the completion of proof and following the first final hearing, the ALJ entered an interlocutory opinion placing the claim in abeyance based on her finding that Bowerman had not attained maximum medical improvement (per the treating physician’s testimony), but that he had achieved a level of improvement permitting his return to some work, justifying abeyance, payment of medical benefits but not payment of temporary total disability (TTD) benefits. Bowerman filed a petition for reconsideration on the ALJ’s failure to award TTD benefits, but the ALJ denied the petition. Bowerman appealed that denial to the Workers’ compensation Board, who dismissed the appeal since the opinion was not a final appealable order.

Approximately seven months after entry of the interlocutory order, Bowerman motioned to remove the claim from abeyance. Updated medical records were filed followed by a second hearing and the ALJ’s final opinion.

Although the ALJ incorporated her prior findings of fact from her interlocutory order into her final opinion, she then reversed her original factual findings and concluded that as of September 2005 Bowerman had reached MMI and could return to all former work activities, thus adopting the conclusions of the employer’s IME physician.

Bowman filed a petition for reconsideration asserting that the ALJ’s findings in her final opinion should have been consistent with her original interlocutory opinion. The ALJ denied the petition and Bowman appealed to the Workers’ Compensation Board, who affirmed the ALJ.

The Court of Appeals reversed with a scathing critique of what it deemed to be a misunderstanding of the law by both the ALJ and the Workers’ Compensation Board.

The Court of Appeals analyzed the ALJ’s decision and the Workers’ Compensation Board’s affirming based on two inquiries: (1) whether the ALJ’s fact-finding discretion extended “to rendering a final opinion in which she completely abandoned and reversed dispositive factual findings initially determined by her in the interlocutory opinion which favored Bowerman and were supported by substantial evidence, absent a showing of new evidence, fraud, or mistake” and (2) “whether the ALJ erred in denying additional TTD benefits when, as initially determined in the interlocutory opinion, Bowerman was found not to have reached MMI and his claim was abated pending completion of medical treatment recommended by his treating physician, reaching MMI, and assignment of an impairment rating.”

After reviewing the procedural history and facts and after a careful and thorough analysis of precedent and analogous opinions, the Court of Appeals held that the two inquiries mandated reversal.

The Court determined that factual findings rendered in an interlocutory opinion, absent new evidence, fraud or mistake cannot be reversed. The Court noted the ALJ’s reversal of previously rendered findings was arbitrary, unreasonable, unfair and constituted a violation of statutory authority and sound legal principles. The Court additionally noted that even the Board misinterpreted “its own cited legal authority.”

The Court further held that while abatement in and of itself did not compel payment of TTD, the ALJ’s findings of fact in her interlocutory opinion did. The Court chided the ALJ deeming her denial of TTD demonstrated a lack of understanding of the prerequisites for an award of TTD as she initially denied TTD benefits because she found Bowerman could perform “some type of work.”

The Court held that in so opining the ALJ was applying the standard for permanent total disability (PTD) benefits not TTD benefits. Since Bowerman had not reached MMI and could not return to his previous work duties or customary work, he had satisfied the requirements for an award of TTD under KRS 342.0011(11)(a). The Court reversed and remanded, with Judge Keller dissenting in a separate opinion.

COMMENT: In and of itself, the opinion serves as a seminal guide for the standard of review for appeals involving the de novo review of decisions challenged based on a fact-finder’s abuse of discretion. The opinion, some 42 pages, and certainly a longer than normal appellate decision reviewing a workers’ compensation determination, seemed largely geared towards highlighting what the Court considered to be both a clear abuse of judicial discretion and a clear misunderstanding and application of the law by both the fact-finder and the Workers’ Compensation Board. The substantive holding in and of itself seemed elementary, and perhaps that is what precipitated the tenor of the opinion.

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