J. CRESS COAL COMPANY v. HAROLD HALL; HON. RICHARD H. CAMPBELL; HON. SHEILA C. LOWTHER; WORKERS' COMPENSATION BOARD

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RENDERED: October 11, 2002; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 2002-CA-001438-WC J. CRESS COAL COMPANY APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-95-28085 v. HAROLD HALL; HON. RICHARD H. CAMPBELL; HON. SHEILA C. LOWTHER; WORKERS' COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: JOHNSON, KNOPF, AND MILLER, JUDGES. MILLER, JUDGE: J. Cress Coal Company (J. Cress) asks us to review an opinion of the Workers' Compensation Board (Board) rendered June 5, 2002. Kentucky Revised Statutes (KRS) 342.290. We affirm. On April 6, 1995, Harold Hall received a work-related injury to his left shoulder while in the employee of J. Cress. In 1997, he received a twenty-five percent occupational disability award. In 2001, Hall filed a motion to reopen the award pursuant to KRS 342.125(1). The matter was reopened and his disability was increased to one hundred percent. The Board applied the law (KRS 342.125), which was in existence on the date of his injury in 1995. J. Cress contends that the December 12, 1996 amendment of KRS 342.125 should have been applied to the reopening. J. Cress perceives that the 1996 amendment, if applicable, would have rendered it more difficult for Hall to succeed upon reopening. As a general rule, the law in effect on the date of injury is controlling. See Maggard v. International Harvestor Company, Ky., 508 S.W.2d 777 (1974). A legislative enactment is not ordinarily given retroactive effect unless the legislature so provides. KRS 446.080. A statute, however, may be given retroactive effect by the court if it is determined to be remedial. J. Cress maintains that the 1996 amendment was remedial and, thus should be given retroactive effect. We are not so convinced. J. Cress cites us to Peabody Coal Company v. Gossett, Ky., 819 S.W.2d 33 (1991). to KRS 342.125. That case involved the 1987 amendment The Court held the 1987 amendment to be a remedial measure designed to bring conformity within the standards for review. The 1987 amendment was intended to equalize the standards for reopening with the standards for original awards. Conversely, the 1996 amendment reflects a substantial recasting of the Workers’ Compensation Act and therefore, cannot be considered remedial. J. Cress’s second argument is that the award upon reopening was not supported by substantial evidence. We perceive no merit in this contention as the record contains sufficient -2- evidence supporting the increase. evidence is conflicting. At the very least, the In such cases, the Administrative Law Judge (ALJ) is the sole arbiter of the weight and sufficiency of evidence. See Luttrell v. Cardinal Aluminum Company, Ky. App., 909 S.W.2d 334 (1995). In order to reverse the ALJ, it must be shown that the decision is not supported by substantial evidence of probative value; this J. Cress has failed to do. Fund v. Francis, Ky., 708 S.W.2d 641 (1986). See Special We think Hall’s own testimony regarding his increase in symptoms and in deterioration of his physical ability combined with the increased impairment rating and restrictions placed upon Hall by one Dr. James Templin sufficient to support the ALJ’s finding of increased disability. Upon the whole of this case we are bound to affirm the decision of the Board under the authority of Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992). For the foregoing reasons, the decision of the Workers’ Compensation Board is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE, HAROLD HALL: Francesca L. Maggard W. Barry Lewis Hazard, Kentucky Randy G. Clark Pikeville, Kentucky -3-

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