JIMMIE A. MCCULLOUGH v. DOVER CORPORATION; SPECIAL FUND; HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
October 11, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001113-WC
JIMMIE A. MCCULLOUGH
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-26911
v.
DOVER CORPORATION;
SPECIAL FUND;
HON. ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
Jimmie A. McCullough asks us to review an opinion
of the Workers' Compensation Board (Board) rendered April 24,
2002.
Kentucky Revised Statutes (KRS) 342.290.
We affirm.
This matter involves McCullough’s motion to reopen an
award under KRS 342.125.
The motion was denied.
McCullough sets forth but one issue for our
consideration and that is whether the Administrative Law Judge
(ALJ) ignored uncontroverted and unrebutted evidence concerning
McCullough’s increased disability.
The Board made a thorough examination of the record and
noted that the evidence was conflicting.
As the burden of proof
was upon McCullough, the Board concluded that he had failed in
his burden.
Upon considering the entire record, the Board was of
the opinion that the record did not compel a finding in
McCullough’s favor.
Perforce, the decision of the ALJ was
affirmed.
We have examined the record herein and are constrained
to agree with the reasoning of the Board.
As the finder of fact,
the ALJ has authority to assign weight and credibility to the
evidence.
See Paramount Foods, Inc. v. Burkhardt, Inc., Ky., 695
S.W.2d 418 (1985).
The ALJ has discretion in determining what
evidence to believe.
S.W.2d 123 (1977).
See Pruitt v. Bugg Brothers, Ky., 547
Finally, it is insufficient that there may be
some evidence to support the contention of the party bearing the
burden of proof; the evidence must be so compelling as to warrant
a decision in his favor.
See Wolf Creek Collieries v. Crum, Ky.
App., 673 S.W.2d 735 (1984).
We cannot conclude that the
evidence so compelled.
Upon the case as a whole, we are bound to affirm under
the authority of Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685 (1992).
For the foregoing reasons, the decision of the Workers’
Compensation Board is affirmed.
KNOPF, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, DOVER
CORPORATION:
Ched Jennings
Louisville, Kentucky
James G. Fogle
Louisville, Kentucky
BRIEF FOR APPELLEE, WORKERS’
COMPENSATION FUNDS:
Joel D. Zakem
Frankfort, Kentucky
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