BARBARA SUE RILEY v. COMMONWEALTH OF KENTUCKY, CABINET FOR HUMAN RESOURCES; SPECIAL FUND; HONORABLE ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; and COMMONWEALTH OF KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED:
September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No. 1998-CA-000081-WC
BARBARA SUE RILEY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
FILE NO. WC-91-018101
COMMONWEALTH OF KENTUCKY,
CABINET FOR HUMAN RESOURCES;
SPECIAL FUND; HONORABLE ROGER
D. RIGGS, ADMINISTRATIVE LAW
JUDGE; and COMMONWEALTH OF
KENTUCKY WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON, and HUDDLESTON, Judges.
DYCHE, JUDGE.
Barbara Sue Riley appeals from an opinion of the
Workers’ Compensation Board (Board) which affirmed a decision of
the Administrative Law Judge (ALJ) dismissing her claim for
disability benefits.
1986.
Riley was first injured at work on July 22,
She received temporary total benefits from her employer;
the last check was issued December 15, 1987.
Unfortunately for
Riley, her claim for permanent benefits was dismissed due to
procedural failures.
921 S.W.2d 616 (1996).
Cabinet for Human Resources v. Riley, Ky.,
She alleges a second work-related injury on May 18,
1989.
This claim resulted in a finding by the ALJ that she
received no work-related injury of significant proportions in
1989, but that incident was an exacerbation of the noncompensable 1986 injury; her claim was dismissed by the ALJ.
The
ALJ’s decision and the record were thoroughly analyzed by the
Board, which affirmed.
When the claimant is unsuccessful below, her burden on
appeal is to show that the evidence compels a finding in her
favor.
(1985).
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418
Riley must show that the evidence was so persuasive that
it was clearly unreasonable for the ALJ to find against her.
REO
Mechanical v. Barnes, Ky. App., 691 S.W.2d 224 (1985).
The WCB is entitled to the same deference for
its appellate decisions as we intend when we
exercise discretionary review of Kentucky
Court of Appeals decisions in cases that
originate in circuit court. The function of
further review of the WCB in the Court of
Appeals 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.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-8
(1992).
We have examined the record herein under the above
standards, and can find no evidence which compels a finding in
appellant’s favor.
While there is evidence from which the ALJ
could have found in her favor, the ALJ is the sole judge of the
facts and determines “the quality, character, and substance of
-2-
the evidence presented,” and the reviewing court or body may not
substitute its judgment on these factual issues.
Paramount Foods
v. Burkhardt, 695 S.W.2d at 419.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE SPECIAL
FUND:
Debra R. King
Pine Knot, Kentucky
Joel D. Zakem
Labor Cabinet
Louisville, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH OF KENTUCKY,
CABINET FOR HUMAN RESOURCES:
Joel W. Aubrey
Lexington, Kentucky
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