ROBERT LARRY LEACH v. JAMES RIVER CORPORATION; SPECIAL FUND; WORKERS' COMPENSATION BOARD; ADMINISTRATIVE LAW JUDGE
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RENDERED: December 18, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1998-CA-000383-WC
ROBERT LARRY LEACH
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
FILE NO. WC-94-031934
JAMES RIVER CORPORATION;
SPECIAL FUND;
WORKERS' COMPENSATION BOARD;
and HONORABLE ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GUIDUGLI, Judges.
DYCHE, JUDGE.
Robert Larry Leach appeals from an opinion of the
Workers’ Compensation Board (Board) which reversed the
Administrative Law Judge’s (ALJ) award of Temporary Total
Disability benefits to him.
The period in controversy is from
December 23, 1996, through June 11, 1997.
Having reviewed the
pertinent parts of the record under the standards set down for us
by the state’s highest court in Western Baptist Hospital v.
Kelly, Ky., 827 S.W.2d 685 (1992), we affirm.
Leach was employed by appellee James River in its cup
manufacturing facility; he received a series of work-related
injuries, the third of which is of concern to us in this case.
He returned to work immediately following this third injury, but
was laid off as part of a company-wide plan two days later.
Four
months later, he was called back to work, and performed his usual
tasks with the assistance of co-workers.
He continued to have problems, and sought the advice
and treatment of physicians other than those who had treated him
to that point.
A new diagnosis prompted different treatment, and
Leach was placed under light duty work restrictions.
James River
created a light duty position for Leach, which he filled for
forty days; this time limitation was pursuant to a collective
bargaining agreement covering Leach’s employment.
At the end of
those forty days, Leach went on disability leave until June 12,
1997, when he returned to full duty.
This return was
accomplished after Leach asked his treating physician to remove
the restrictions due to the financial hardship he was undergoing.
Following the litigation of his Workers’ Compensation
claims, Leach was awarded, among other things, temporary total
disability income benefits for December 23, 1996, to June 11,
1997.
On appeal, the Board reversed this portion of the award,
holding that there was no evidence of record to support the ALJ’s
finding “that he was not able to do work within his restrictions”
during that period of time.
This appeal followed.
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 the [sic] Court perceives the Board has
overlooked or misconstrued controlling
-2-
statutes or precedent, or committed an error
in assessing the evidence so flagrant as to
cause gross injustice.
Id. at 687-8.
We have reviewed the evidence, and are constrained to
agree with the Board.
While we might desire to see that a worker
with Leach’s qualities is given all the support available, we are
nevertheless bound by the requirements of the statute, and the
cases construing it.
We find no direct testimony, from Leach or
his treating physicians, that he was unable to perform during the
times in question.
We must therefore affirm the Board.
GUIDUGLI, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
JAMES RIVER CORPORATION:
Diana L. Beard
Lexington, Kentucky
Ronald J. Pohl
Lexington, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND:
Benjamin C. Johnson
Louisville, Kentucky
-3-
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