JOHNNY SKAGGS v. ROBERT WHITTAKER, ACTING DIRECTOR OF SPECIAL FUND; JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: August 20, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000248-WC
JOHNNY SKAGGS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-97-01801 & WC-96-82813
v.
ROBERT WHITTAKER, ACTING DIRECTOR
OF SPECIAL FUND; JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Johnny Skaggs (“Skaggs”) petitions for a review
of part of an opinion of the Workers’ Compensation Board
(“Board”) which affirmed a dismissal by the Administrative Law
Judge (“ALJ”) of an occupational hearing loss claim.
The ALJ
concluded that Skaggs’s hearing loss resulted in no occupational
disability.
The uncontroverted evidence on the hearing loss was
that Skaggs had approximately 28 years exposure to occupational
noise, and the uncontroverted medical evidence showed he suffered
a six to eight percent impairment to the body as a whole.
Both
physicians would allow Skaggs to return to his regular work with
a protective hearing device.
After reviewing the lay and medical
testimony, the ALJ concluded that Skaggs had no occupational
disability as a result of the work-related hearing loss and
dismissed that part of Skaggs’s claim.
Skaggs appealed to the Board, which noted the ALJ was
the finder of fact and the evidence did not compel a contrary
result and affirmed the ALJ.
with the employer.
Skaggs entered into a settlement
Thus, we are concerned only with liability,
if any, of the Special Fund.
The basis of this appeal against
the Special Fund is that the evidence of record compels a finding
of some occupational disability as a result of the finding of
some functional limitations to the body as a whole.
Under Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685, 688 (1992), the function of the Court of Appeals in
reviewing Board decisions “. . . is to correct the Board only
where the Court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice.”
claim.
Skaggs had the burden of proof in establishing his
Snawder v. Stice, Ky. App., 576 S.W.2d 276 (1979).
Since
he was unsuccessful before the ALJ, the question on appeal is
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whether the evidence was so overwhelming as to compel a finding
in his favor.
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.
2d 418 (1985).
Compelling evidence has been defined as evidence
so persuasive that it was clearly unreasonable for the ALJ not to
be convinced by it.
Hudson v. Owens, Ky., 439 S.W.2d 565 (1969).
It is not enough for Skaggs to show that the record contains some
evidence which might support a reversal of the ALJ’s decision.
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
If the
ALJ’s determination is supported by any evidence of substance, it
cannot be said that the evidence compels a different result.
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
The issue on appeal relates to a finding of fact.
Our
review of an Administrative Law Judge’s findings of fact are
severely limited by KRS 342.285.
In our review of the record to
determine whether there is either compelling evidence in favor of
Skaggs and/or substantial evidence of probative value to support
the ALJ’s decision, we recognize that it is the ALJ who has the
authority to determine the weight and credibility of the
evidence.
In doing so, the ALJ may pick and choose from the
evidence, whether it be evidence from one party’s total proof or
even from a given individual.
Pruitt v. Bugg Brothers, Ky., 547
S.W.2d 123 (1977); Codell Constr. Co. v. Dixon, Ky., 478 S.W.2d
703 (1972).
Even the Board may not substitute its judgment for
that of the ALJ in matters involving the weight to be offered the
evidence in questions of fact.
KRS 342.285(2).
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Our review of the record and the finding of the ALJ
that there is no occupational disability, even though there is
functional impairment to the body as a whole, leads us to
conclude there was no error.
Even though we may have drawn a
different conclusion, we cannot say the evidence compels a
different finding.
For the foregoing reasons, the opinion of the Board
which affirmed the findings of the ALJ which dismissed the claim
for occupational disability for a hearing loss is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, ROBERT
WHITTAKER, ACTING DIRECTOR OF
SPECIAL FUND:
Thomas W. Moak
Prestonsburg, Kentucky
David W. Barr
Louisville, Kentucky
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