WILLIE CRUSENBERRY v. SPECIAL FUND; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000249-WC
WILLIE CRUSENBERRY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-20648
SPECIAL FUND;
HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Willie Crusenberry sought to reopen his award
based on a progression of his occupational disease from Category
1 to Category 2 of his black lung.
A university evaluation was
completed at the request of the Special Fund.
Although not filed
into evidence by a party, the evaluation was considered by the
Administrative Law Judge (ALJ).
The Workers’ Compensation Board
(Board) affirmed, holding that once a request for a university
evaluation was made, the report automatically becomes part of the
record and can be considered by the ALJ, even in reopenings.
agree and therefore affirm.
We
Willie Crusenberry was originally awarded benefits on
July 12, 1994, for retraining incentive benefits (RIB) for
Category 1 pneumoconiosis, with no breathing impairment.
With
the award limited to RIB, the Special Fund was dismissed.
On
September 2, 1999, the claim was reopened based on a change of
condition or progression of his pneumoconiosis.
was ordered rejoined.
was dismissed.
The Special Fund
The employer settled with the claimant and
The Special Fund then requested a “university
evaluation” which was conducted at the employer’s expense.
The
ALJ accepted and considered the university evaluator’s report
without being requested to do so by a party.
the report for denying a change in condition.
The ALJ relied on
The claimant
contends error in considering the report upon reopening as it was
not introduced by a party.
KRS 342.125 provides that upon reopening, the matter
should be handled as if it were an original claim.
803 KAR
25:010E, Section 8(1) requires all requests for black lung (KRS
342.732) benefits to be referred for a university evaluation.
803 KAR 25:010, Section 12(7), which existed at the time of this
reopening, provided for the evaluation to become part of the
record and evidence for the ALJ, without the necessity of a
formal filing or motion.
Our Supreme Court in Magic Coal Co. v.
Fox, Ky., 19 S.W.3d 88 (2000), approved the scheme for both
original claims and reopenings.
The function of the Court of Appeals in reviewing a
decision of the Workers’ Compensation Board is to correct the
Board only where the Court perceives the Board has overlooked or
-2-
misconstrued statutes, precedent or has flagrantly erred in
assessing the evidence so as to cause a gross injustice.
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
Western
We find
no such errors and therefore affirm the decision of the Workers’
Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, SPECIAL
FUND:
Mark L. Ford
Harlan, Kentucky
John Burrell
Frankfort, Kentucky
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