GENEVA RICHARDSON v. UNIVERSITY OF LOUISVILLE; the SPECIAL FUND; HON. THOMAS A. NANNEY, Administrative Law Judge; and the WORKERS' COMPENSATION BOARD
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RENDERED: August 2, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
96-CA-0611-MR
GENEVA RICHARDSON
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. 91-18539
v.
UNIVERSITY OF LOUISVILLE; the
SPECIAL FUND; HON. THOMAS A. NANNEY,
Administrative Law Judge; and the
WORKERS' COMPENSATION BOARD
*
BEFORE:
APPELLEES
OPINION AFFIRMING
* * * * * * *
Combs, Gardner, and Gudgel, Judges.
Gudgel, Judge.
This is a petition for review from a decision of
the Workers' Compensation Board (Board) rendered on February 2,
1996, affirming an opinion of an Administrative Law Judge (ALJ),
dismissing appellant's claim for benefits on the ground that her
present disability is not work-related and actively pre-existed
her alleged work-related injury.
The appellant reported the onset of severe pain in her right
wrist while carrying files at work.
She subsequently filed a
claim for benefits for permanent disability.
In denying the
claim, the ALJ concluded as follows:
Addressing first the issue of causation and
work-relatedness of plaintiff's hand
condition, the medical evidence taken as a
whole, combined with the testimony of
plaintiff, reveals that the bulk of the
plaintiff's disability is not related to any
on-the-job injury, but is, instead related to
her debilitating physical condition brought
about by her long term use of prescription
steroids.
The ALJ further stated that "[e]ssentially, the evidence
establishes that the plaintiff had a prior active condition of
severe osteoarthritis prior to the incident at work and that this
incident merely aggravated the condition."
The ALJ primarily
relied upon the medical testimony of Dr. Banerjee, who testified
that appellant's prolonged steroid use for asthma caused
arthritic changes and osteoarthritis that pre-existed the on-thejob incident.
On appeal the Board affirmed the ALJ's decision.
This petition for review followed.
Appellant contends that the ALJ erred by finding that her
condition was not work-related.
We disagree.
The claimant in a workers' compensation claim has the burden
of proof and risk of persuasion, and if unsuccessful, the
question on appeal is whether the evidence is so overwhelming
upon consideration of the record as a whole as to compel a
finding in the claimant's favor.
See Snawder v. Stice, Ky. App.,
576 S.W.2d 276 (1979);
Wolf Creek Collieries v. Crum, Ky. App.,
673 S.W.2d 735 (1984).
Compelling evidence is that which is so
overwhelming that no reasonable person could reach the same
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conclusion reached by the finder of fact.
REO Mechanical v.
Barnes, Ky. App., 691 S.W.2d 224 (1985).
A review of the record and, particularly, the evidence cited
by the Board reveals that the ALJ was not compelled to find in
favor of the claimant.
The appellant's argument is primarily
directed at the weight the ALJ should have accorded certain
evidence as opposed to the issue of whether that evidence was
sufficient to support the ALJ's finding.
It is within the ALJ's
authority to judge the weight, credibility, substance and
inference to be drawn from the evidence.
See Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
Moreover, the
mere fact that the appellant continued to work at her normal job
prior to the incident does not compel a finding that she suffered
no prior active disability.
467 S.W.2d 789 (1979).
Griffin v. Booth Mem. Hosp., Ky.,
In short, we are convinced that the
evidence as a whole does not compel a finding in appellant's
favor.
The decision of the Workers' Compensation Board is affirmed.
ALL CONCUR.
Petition for Appellant:
Tamara Todd Cotton
Hardy, Logan, Priddy & Cotton
Louisville, KY
Response for Appellee
University of Louisville:
Jeffrey T. Sampson
Carole Meller Pearlman
Williams & Wagoner
Louisville, KY
Response for Appellee
Special Fund:
Joel D. Zakem
Louisville, KY
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