Gro-Green Chemical Co. v. Allen
| Decision Date | 29 May 1987 |
| Docket Number | GRO-GREEN,No. 86-CA-1848-S,86-CA-1848-S |
| Parties | CHEMICAL COMPANY, Appellant, v. David Lee ALLEN; John Calhoun Wells, Secretary, Labor Cabinet (Special Fund); and Workers' Compensation Board, Appellees. |
| Court | Kentucky Court of Appeals |
William P. Swain, Peter J. Glauber, Louisville, for appellant.
Thomas Todd Davis, Shelbyville, David Randall Allen, Labor Cabinet, Louisville, for appellees.
Before COOPER, DYCHE and LESTER, JJ.
This is an appeal from an order of the circuit court affirming an opinion and award of the Workers' Compensation Board ruling that the appellee had sustained a 100% occupational disability. Such award was made on a motion to reopen. On appeal, the single issue is whether the circuit court erred, as a matter of law, in affirming the award of the Board. Reviewing the record below, we reverse.
Principally, the issue before this Court is whether the circuit court and the Board erred in determining that the appellee, David Lee Allen, had sustained an increase in occupational disability from the time of his original injury to the time his motion for reopening was filed with the Board. In April and November of 1979, the appellee sustained two separate back-related injuries while in the employ of the appellant, Gro-Green Chemical Company. Subsequent to this second injury on November 9, 1979, the appellee never returned to work, nor was he ever released by his treating physician to return to work. In April of 1981, Dr. Robert Baker assessed the appellee's functional disability as being 10% to the body as a whole. On July 8, 1981, the appellee underwent low back surgery. On July 21, he reached a settlement agreement with the appellant's insurance carrier and the Special Fund in which his occupational disability was assessed at 26.5%. The settlement agreement resulted in a lump sum payment of $30,045.65 of which the Special Fund contributed $15,000. That settlement agreement was approved by the Board.
On August 18, 1982, the appellee was admitted for hospitalization for a spinal fusion from L-4 through L-5 through S-1. And, in February of 1983, he was hospitalized for additional epidural blocks. Subsequently thereafter, he filed a motion to reopen based on a change of medical condition. This motion was granted by the Board and a hearing was held. At this hearing, only the appellee and Dr. Baker testified. No other proof was taken. Subsequent to this hearing, the Board issued an opinion and award in which it determined that the appellee now had an occupational disability of 100%. It assessed the liability for such disability equally between the appellant and the Special Fund. It is from this opinion and award that the appellant now appeals.
Although the appellant concedes that the circuit court cannot substitute its judgment for that of the Board as to the weight of the evidence on questions of fact--KRS 342.285(3)--it nevertheless argues that findings of fact of the Board must be based upon substantial evidence of probative value. Rice v. Conley, Ky., 414 S.W.2d 138 (1967). Here, it argues that although the treating physician testified the appellee had sustained an increase in functional disability--from 10% to 25%--there was no evidence to support a finding that he had sustained an increase in occupational disability from the time the settlement agreement was entered into until the time he filed a motion to reopen. Reviewing the record below, we agree.
Under the language of KRS 342.125, the burden of proof is upon the party seeking the reopening. W.E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453 (1946). Here, the appellee had the burden of proving that he not only had sustained an increase in functional disability, but an increase in occupational disability as well. Testifying in his own behalf, the appellee admitted that he had not worked since November of 1979, nor...
To continue reading
Request your trial
-
Garrett Mining Co. v. Nye
...initial award and he was not working when he filed his motion to reopen. For this proposition, Garrett relies on Gro-Green Chemical Co. v. Allen, Ky.App., 746 S.W.2d 69 (1987). [T]he appellee had the burden of proving that he not only had sustained an increase in functional disability, but ......
-
Colwell v. Dresser Instrument Div.
...Air Filter Co. v. Blair, 681 S.W.2d 427 (Ky.1984); Mitsch v. Stauffer Chemical Co., 487 S.W.2d 938 (Ky.1972); and Gro-Green Chemical Co. v. Allen, 746 S.W.2d 69 (Ky. App.1987), "change of conditions" referred to a change of medical condition that caused a change of occupational disability. ......
-
Hamilton v. Kentucky-West Virginia Gas Company
...327 (2000). 11. Whittaker v. Rowland, id. at 482. 12. Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986). 13. Gro-Green Chemical Co. v. Allen, Ky. App., 746 S.W.2d 69 (1987). 14. Beale v. Rolley, Ky., 777 S.W.2d 921 15. Republic Steel Corporation v. Justice, Ky., 464 S.W.2d 267 (1971). ...
-
Dotco Energy Company v. Maynard, 2003-CA-000655-WC.
...v. Davis, Ky., 841 S.W.2d 164 (1992). This is not accomplished by proving an increase in functional impairment. Gro-Green Chemical Co. v. Allen, Ky. App., 746 S.W.2d 69 (1987). A worker must demonstrate that any decrease in wage earning capacity is due to the effects of the injury or diseas......