DON NAPIER v. WHITAKER COAL CORPORATION; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: NOVEMBER 15, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000887-WC
DON NAPIER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-17136
v.
WHITAKER COAL CORPORATION;
ROBERT L. WHITTAKER, DIRECTOR
OF SPECIAL FUND; HONORABLE DONALD
G. SMITH, ADMINISTRATIVE LAW
JUDGE; WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND POTTER, JUDGES1.
DYCHE, JUDGE:
Don Napier appeals from an opinion of the Workers’
Compensation Board (“Board”) which affirmed an opinion and award
of the Administrative Law Judge (“ALJ”) increasing Napier’s
disability award to 60% on reopening.
entitled to an award of 100%.
1
Napier contends that he is
We affirm.
Senior Status Judge John Potter sitting as Special Judge by Assignment of the Chief
Justice pursuant to Section 110 (5) (b) of the Kentucky Constitution.
All parties agree that Napier’s burden on appeal is
whether the evidence compels a finding in his favor.
Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 419 (1985).
Napier
urges us to find that the testimony is uncontradicted, and
compels a finding of 100% disability.
While we might agree that
the testimony presented on his behalf is uncontradicted by the
testimony of other witnesses, it is not, in and of itself,
sufficient to compel a finding in his favor.
As noted by the ALJ and the Board, neither of Napier’s
witnesses considered a 1996 back injury caused by a car accident,
or a 1994 injury while shoveling.
The increases in restrictions
were incremental, and neither witness testified directly that
Napier was incapable of any regular employment or that there was
no employment that he could perform.
In short, while the testimony supported the increase in
disability found by the ALJ, it did not compel a finding of total
disability.
The opinion of the Workers’ Compensation Board is
affirmed.
POTTER, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTING:
compels me to dissent.
proof.
My review of the record
The claimant fully met his burden of
It was simply rejected without any evidentiary basis or
justification.
I would hold that he has established his
entitlement to an award of 100% of benefits and that any other
result is both arbitrary and unfounded.
-2-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WORKERS’
COMPENSATION BOARD:
James D. Holliday
Hazard, Kentucky
Joel D. Zakem
Frankfort, Kentucky
BRIEF FOR APPELLEE WHITAKER
COAL CORPORATION:
Charles W. Berger
Harlan, Kentucky
-3-
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