ALICE M. MIDDLETON v. HARLAN COUNTY BOARD OF EDUCATION, SPECIAL FUND, WORKERS' COMPENSATION BOARD AND J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE and HARLAN COUNTY BOARD OF EDUCATION v. ALICE M. MIDDLETON
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RENDERED:
December 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000752-WC
ALICE M. MIDDLETON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-00793
HARLAN COUNTY BOARD OF EDUCATION,
SPECIAL FUND, WORKERS’ COMPENSATION
BOARD AND J. LANDON OVERFIELD, ADMINISTRATIVE
LAW JUDGE
AND:
NO.
2002-CA-00838-WC
HARLAN COUNTY BOARD OF EDUCATION
v.
APPELLEES
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-00793
ALICE M. MIDDLETON
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BUCKINGHAM, JUDGE: Alice M. Middleton petitions for our review of
an opinion by the Workers’ Compensation Board which affirmed an
opinion and order by an administrative law judge (ALJ) denying
Middleton’s claim on reopening.
We affirm.
Middleton was employed by the Harlan County Board of
Education as a cook.
She was required to serve food, clean, and
perform duties as a dishwasher.
was located on a cart.
She also operated a slicer that
In performing these duties, she was
required to press her knees against the cart on a regular and
sustained basis and was required to stand on her feet for
prolonged periods of time.
In early 1996, Middleton began to experience pain and
discomfort in her left knee.
She was forced to seek medical
attention and later filed a claim with the Department of Workers’
Claims.
She entered into a settlement agreement with the school
board that was approved by an arbitrator on September 10, 1998.
As a result of the settlement, Middleton received a lump sum
payment of $10,385, representing a 20% permanent partial
disability.
In June 1999, Middleton underwent a left knee
replacement surgery.
On December 8, 2000, she filed a motion to
reopen due to change of condition.
In an opinion and order
rendered on November 13, 2001, the ALJ dismissed Middleton’s
claim on reopening for failure to sustain her burden of proving
an increase in occupational disability since the date of her
-2-
settlement.
See KRS1 342.125(1)(d).
Middleton appealed to the
Board, and it entered an opinion on March 13, 2002, affirming the
ALJ.
The Board stated in its opinion that:
On review, we find Middleton’s appeal is
simply a reargument of her case on reopening
before ALJ Overfield. Middleton
impermissibly requests this Board to
substitute its judgment as to the weight and
credibility of the evidence for that of the
finder of fact. As we admonish so
frequently, this is not the Board’s function.
This petition for review by Middleton followed.
In her petition for review, Middleton states that the
Board affirmed the ALJ “indicating that probably the Appellant
was totally disabled from gainful employment before her knee
replacement surgery as well as afterwards.”
On page eleven of
the Board’s opinion, it stated, “Dr. Dubin opined that Middleton
was probably totally disabled from performing any gainful
employment before and that her knee surgery has not changed that
fact.
We believe that evidence, in of itself, is sufficient to
justify the ultimate conclusion reached by ALJ Overfield.”
Apparently asserting that a mistake was made when she
reached her initial settlement with the school board in 1998,
Middleton urges us to correct the “mistake” and determine that
she should be awarded additional benefits based on a total
disability.
She makes her argument in one sentence:
“The law
and the Workers’ Compensation Act should be administered so as to
encourage settlement, however, where a mistake is made, if it is
not corrected it will not encourage settlement but will have the
1
Kentucky Revised Statutes.
-3-
opposite effect.”
Middleton makes no further argument, and,
specifically, she does not argue that the ALJ and the Board erred
in their determinations that she failed to sustain her burden of
proving an increase in occupational disability since the date of
her original settlement.
In its cross-petition for review, the school board
states that it filed a motion with the Board to dismiss
Middleton’s appeal because she had failed to file a petition for
reconsideration following the ALJ’s decision as was required by
Halls Hardwood Floor Co. v. Stapleton, Ky. App., 16 S.W.3d 327
(2000).
The school board states that the Board passed its motion
to dismiss until the merits of this appeal have been considered.
Thus, the school board argues that if this court is persuaded by
the merits of Middleton’s petition, then the appeal should
nevertheless be dismissed because Middleton failed to file a
petition for reconsideration with the ALJ.
Our function in reviewing the Board’s decision “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 Hosp. v. Kelly, Ky., 827
S.W.2d 685, 687-88 (1992).
Middleton cites no legal authority to
support her argument, and we are not aware of any.
To accept her
argument would be contrary to established law concerning
reopenings.
See Commercial Drywall v. Wells, Ky. App., 860
S.W.2d 299 (1993), which is directly on point.
-4-
The Board’s opinion is affirmed.2
ALL CONCUR.
BRIEF FOR APPELLANT/CROSS
APPELLEE, ALICE M. MIDDLETON:
BRIEFS FOR APPELLEE/CROSS
APPELLANT, HARLAN COUNTY BOARD
OF EDUCATION:
John Crockett Carter
Harlan, Kentucky
Douglas W. Gott
Bowling Green, Kentucky
BRIEF FOR APPELLEE, WORKERS’
COMPENSATION BOARD:
David W. Barr
Frankfort, Kentucky
2
The school board’s cross-petition for review is moot.
-5-
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