PATRICIA HOLTHAUSER v. MEADOWS SOUTH NURSING HOME; WILLIAM O. WINDCHY, Acting Director of the SPECIAL FUND; HON. THOMAS L. 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NOT TO BE PUBLISHED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-0854-WC
PATRICIA HOLTHAUSER
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. 89-43560
v.
MEADOWS SOUTH NURSING HOME;
WILLIAM O. WINDCHY, Acting Director
of the SPECIAL FUND; HON. THOMAS L.
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 March 1,
1996, affirming the opinion and award of an Administrative Law
Judge (ALJ) which added a 10% occupational disability on
reopening to a previous 1989 30% occupational disability awarded
for a back injury.
The appellant moved to reopen her original injury claim and
sought total disability benefits based upon an alleged increase
in occupational disability stemming from surgery to her back.
The ALJ found, however, that appellant only sustained a 10%
increase in occupational disability since the initial award.
appeal to the Board the ALJ's decision was affirmed.
On
This
petition for review followed.
Despite appellant's contentions to the contrary, the Board
did not dismiss her claim based upon the fact that her notice of
appeal was filed prior to the ALJ's ruling on the Special Fund's
motion for reconsideration.
The Board clearly addressed the
merits of her appeal in affirming the ALJ.
Moreover, we are
satisfied that the ALJ clearly committed no error in finding
there has been an increase in occupational disability of only 10%
rather than the more significant increase sought by appellant.
The movant in reopening proceedings bears the burden of
establishing that there has been a change in occupational
disability since the time of the original award.
See Peabody
Coal Co. v. Gossett, Ky., 819 S.W.2d 33 (1991).
Further, this
court can not disturb the ALJ's decision against the claimant
absent a showing that there is evidence which compelled a finding
in favor of the claimant.
S.W.2d 641 (1986).
Special Fund v. Francis, Ky., 708
Here our review of the record reveals that
there was, in fact, substantial evidence on which the ALJ could
rely in finding that there has only been a 10% increase in
occupational disability.
This evidence is discussed and clearly
set forth in the opinion of the Board.
Nothing in appellant's
brief convinces us that the Board erred in its assessment of this
evidence such that gross injustice occurred.
-2-
That being so the
Board's opinion may not be disturbed.
Western Baptist Hosp. v.
Kelly, Ky., 827 S.W.2d 685 (1992).
The opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR.
Petition for Appellant:
John M. Longmeyer
Louisville, KY
Response for Appellee
Meadows South Nursing Home's:
K. Lance Lucas
Sutton, Hicks & Lucas
Covington, KY
Response for Appellee
Special Fund:
Joel D. Zakem
Louisville, KY
-3-
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