GLENN MONDAY v. COLLINS MASONRY; JACK SEXTON; UNINSURED EMPLOYERS FUND; HONORABLE ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 7, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001145-WC
GLENN MONDAY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-98982
v.
COLLINS MASONRY; JACK SEXTON;
UNINSURED EMPLOYERS FUND;
HONORABLE ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND DYCHE, JUDGES.
DYCHE, JUDGE.
Glenn “Kirk” Monday brings this appeal from an
opinion of the Workers’ Compensation Board (“Board” or “WCB”)
which affirmed an order of the Administrative Law Judge (“ALJ”)
dismissing his claim for benefits from Collins Masonry.
The ALJ is the sole judge of the facts and determines
the quality, character, and substance of the evidence presented,
and the reviewing court or body may not substitute its judgment
on these factual issues.
S.W.2d 418 (1985).
Paramount Foods v. Burkhardt, Ky., 695
When the claimant is unsuccessful below, the
issue on appeal is whether the evidence compelled a finding in
his favor.
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 conclusion as that
reached by the ALJ.
REO Mechanical v. Barnes, Ky. App., 691
S.W.2d 224 (1985).
We have examined the record as a whole, including the
testimony of Monday, and can find no compelling evidence that the
injuries of which he complains were caused by the fall he
allegedly took while in the employ of Collins.
The ALJ expressed
doubts, (which have a firm basis), about Monday’s credibility;
his testimony varied on the extent of work he performed after he
worked for Collins.
The history he related to health care
providers cast doubt on his claim.
The WCB is entitled to the same
deference for its appellate decisions as we
intend when we exercise discretionary review
of Kentucky Court of Appeals decisions in
cases that originate in circuit court. The
function of further review of the WCB in the
Court of Appeals 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.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992).
We find no such error and affirm the opinion of the
Board.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
COLLINS MASONRY:
John E. Cornett
Georgetown, Kentucky
Zaring P. Robertson
Georgetown, Kentucky
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