RICKY GERALD BROCK V. WISER OIL COMPANY; RONALD W. MAY, Administrative Law Judge; ROBERT E. SPURLIN, Director WORKERS' COMPENSATION BOARD
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RENDERED:
April 10, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-001046-WC
RICKY GERALD BROCK
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
NO. WC-90-029455
V.
WISER OIL COMPANY; RONALD W.
MAY, Administrative Law Judge;
ROBERT E. SPURLIN, Director
of SPECIAL FUND; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
ABRAMSON, DYCHE and HUDDLESTON, Judges.
HUDDLESTON, JUDGE.
Ricky Gerald Brock appeals from a Workers'
Compensation Board opinion that affirmed an Administrative Law
Judge's decision to dismiss his reopened claim.
During Brock's employment with Wiser Oil Company in 1988,
he was seriously injured when a pipe on an oil rig struck him in
the right temporal area rendering him unconscious. As a result, he
developed
some
hearing
loss
and
double
vision,
experienced
difficulty with his temporomandibular joint, and sustained injuries
to his neck and low back and a closed-head injury which affected
his memory and concentration.
Brock eventually returned to full
time employment with Wiser. In the ALJ's original opinion of 1991,
it was noted that Brock would be unable to compete on a day-to-day
basis in a competitive environment.
Brock was determined to be 55
percent occupationally disabled.
In January 1996, Brock moved to reopen his award
his termination from Wiser.
after
Brock produced testimony from Dr.
Jeffrey Hecht that his head injuries and memory problems would make
it difficult for him to learn a new job.
However, Dr. Hecht also
stated that Brock's condition was essentially unchanged since the
award made in 1991.
experienced
Dr. Gary Twyman testified that Brock has
progressive
memory
difficulty,
numbness
and
gait
ataxia, but it was his opinion that these symptoms are not related
to the original head injury.
Dr. Robert Goodman testified that his examination of
Brock resulted in a diagnosis of preexisting degenerative changes
to the lumbar spine with arousal. He assessed an impairment rating
of 5 percent as a result of the lumbar spine condition.
Dr.
Goodman imposed a lifting restriction of 75 pounds and concurred
with Dr. Hecht that Brock's condition had not worsened.
Patrick examined Brock in 1990 and 1996.
Dr. O. M.
From his 1996 examina-
tion, he found definite suggestions of degenerative disk disease at
the L4-5 and L5-S1 levels with nerve root impingement and limited
motion that were not present in 1990.
percent impairment rating.
2
Dr. Patrick assessed a 26
Dr. Robert Granacher, a psychiatrist, examined Brock in
1990 and 1996.
In 1996, he conducted a repeat brain SPECT scan and
performed several of the same tests as in 1990.
The SPECT scan
showed no decrease in blood flow to the front of Brock's brain and
the neurological findings were essentially the same as in 1990.
Dr. Granacher testified that it was his opinion that Brock's memory
had improved and there was no worsening of his functional impairment. According to Dr. Granacher, Brock has the mental capacity to
engage
in
any
work
for
which
he
had
training,
education
or
experience.
Further review of a Workers' Compensation Board opinion
in the Court of Appeals is guided by the standard set forth in
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992),
where the Supreme Court said that this Court's function is to
"correct the Board only where the Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice."
Id. at 687.
Brock had the burden of proof on the issue of increased
occupational disability. The question the Board had to answer, and
the
question
we
must
answer,
is
whether
the
evidence
is
so
overwhelming as to compel a finding in Brock's favor.
Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
Compelling
evidence is evidence so persuasive that it is clearly unreasonable
for the ALJ not to be convinced by it.
Ky.App., 691 S.W.2d 224 (1985).
REO Mechanical v. Barnes,
We believe the Board correctly
3
concluded, based on the medical evidence in the record, that the
ALJ's decision was not unreasonable.
Accordingly, the Board's decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WISER OIL
COMPANY:
Michael D. Deavers
Louisville, Kentucky
Walter A. Ward
CLARK, WARD & CAVE
Lexington, Kentucky
BRIEF
FUND:
FOR
APPELLEE
David W. Barr
Louisville, Kentucky
4
SPECIAL
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