ROBERT A. PETERSON V. MANALAPAN MINING COMPANY; SPECIAL FUND; HON. SHEILA LOWTHER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: July 17, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
97-CA-3216-WC
ROBERT A. PETERSON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-96-008103
V.
MANALAPAN MINING COMPANY; SPECIAL FUND;
HON. SHEILA LOWTHER, Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
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BEFORE:
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COMBS, KNOPF, and KNOX, Judges.
COMBS, JUDGE:
Robert Peterson (Peterson) appeals from the
opinion of the Workers' Compensation Board (Board) affirming the
decision of the Administrative Law Judge (ALJ), which dismissed
his occupational disease claim.
Peterson contends that the ALJ's
decision was based on substandard evidence and that it was
arbitrary and erroneous.
We disagree and affirm the decision of
the Workers' Compensation Board.
Peterson has been exposed to coal dust as an
underground coal miner for seventeen years and has been employed
by Manalapan Mining Company (Manalapan) for the past eight years.
Peterson quit his job with Manalapan on November 27, 1996, due to
difficulty in breathing and filed for an adjustment of
occupational disease claim on December 2, 1996.
He claimed that
he had coal workers' pneumoconiosis as a result of the inhalation
of coal dust while employed by the defendant, Manapalan; he also
named the Special Fund as a party-defendant.
Peterson submitted medical evidence from Drs. William
H. Anderson and John E. Myers.
Dr. Anderson reviewed an x-ray
dated November 16, 1993, as positive for pneumoconiosis, category
1/1, and reported that the x-ray film was quality grade one.
Dr.
Myers reviewed an x-ray dated November 26, 1996, and reported
positive for pneumoconiosis, category 1/1, and film quality one.
Manapalan and the Special Fund submitted medical
evidence from Drs. Emery Lane, Robert Powell, and A. Dahhan.
Drs. Lane and Powell reviewed an x-ray dated January 29, 1997, as
negative for pneumoconiosis; both doctors also reported that the
film quality was of grade two.
However, Dr. Dahhan interpreted
the January 29, 1997 x-ray as negative -- but reported film
quality as grade one.
On August 29, 1997, the ALJ issued an order dismissing
Peterson's claim.
Specifically, the ALJ found that Peterson
failed to meet his burden of establishing the existence of coal
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workers' pneumoconiosis.
The ALJ relied upon the medical
evidence submitted from Drs. Powell and Lane, which she found to
be credible and persuasive.
The ALJ found both doctors to be
well qualified and both had reviewed the most recent x-ray.
Peterson then filed an appeal with the Board.
1997, the Board affirmed the ALJ's order.
On December 8,
This appeal followed.
On appeal, Peterson argues that the ALJ erred in
relying upon the reports of physicians who based their opinions
on substandard evidence -- x-rays with a film quality of grade
two.
Peterson argues that the ALJ should have relied on the
reports of Drs. Anderson and Myers, who reviewed x-rays with film
quality one.
We disagree.
The plaintiff bears the burden of proof and the risk of
non-persuasion.
(1963).
Roark v. Alva Coal Corp., Ky., 371 S.W.2d 856
In cases where the claimant has failed to meet his
burden of proof, the question before the appellate court is
whether the evidence was so overwhelming that it compelled a
finding in his favor.
Wolf Creek Collieries v. Crum, Ky.
673 S.W.2d 735 (1984).
App.,
Compelling evidence is defined as
evidence which is so overwhelming that no reasonable person could
reach the same conclusion as the ALJ.
Ky.
Reo Mechanical v. Barnes,
App., 691 S.W.2d 226 (1985).
In this case, the ALJ thoroughly weighed the evidence
presented.
She was aware of the differences in film quality and
the differences in the dates of x-rays.
The ALJ, as the finder
of fact, and not the reviewing court, has the authority to
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determine the quality, character, and substance of the evidence
presented.
Paramount Foods, Inc., v. Burkhardt, Ky., 695 S.W.2d
419 (1985).
When there is conflicting medical testimony, the ALJ
may choose whom and what to believe.
Ky., 547
S.W.2d 124
Pruitt v. Bugg Brothers,
(1977).
The Court of Appeals can not substitute its judgment
for that of the ALJ concerning the weight of the evidence or
questions of fact.
KRS 342.285(3).
We cannot say in addressing
this issue the ALJ "overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice."
Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 687-688 (1992).
In summary, we cannot conclude as a matter of law that
the evidence compels a different finding.
The ALJ's findings are
supported by substantial evidence, and the Board did not err in
affirming the ALJ's order.
Therefore, we affirm the opinion of
the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE MANALAPAN
MINING COMPANY:
Mark D. Goss
Harlan, KY
Antony Saragas
Harlan, KY
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel D. Zakem
Labor Cabinet
Louisville, KY
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