Workers Compensation Decisions: Court of Appeals - Jan. 6, 2006

WORKERS COMPENSATION DECISIONS
COURT OF APPEALS - JAN. 6, 2006

PUBLISHED. None.

NOT PUBLISHED.

GLAHN V. CASTELLINI CO.
WORKERS COMP - Substantial Evidence
2005-CA-001623
Not to be Published 
Date: 1/6/2006

The Court of Appeals extensively reviewed this appeal from a dismissal of the claimant’s case, and found it to be supported by substantial evidence.  More accurately, there was not overwhelming or compelling evidence in supporting the claim which would require a decision in the claimant’s favor.  Of interest is a reverse Cepero argument.  Cepero is a 2001 Supreme Court decision where the claimant misled his doctors about a previous injury, and the Courts reversed the decision in his favor, saying that a doctor’s opinion based on an incorrect history can never constitute substantial evidence to support an award of benefits.  Here, the claimant argued that the history taken by the defendant’s doctors was incorrect and therefore could not constitute evidence to support a dismissal of the claim.  However, the Court of Appeals held that the history was not irrefutably incorrect, and that the accuracy of the history was within the discretion of the ALJ to decide.   

 

BEECH FORK PROCESSING V. MUSICK
WORKERS COMP - Black Lung Benefits
2005-CA-001660
Not to be Published 
Date: 1/6/2006

The claimant had previously received a RIB award (Retraining Incentive Benefit) based on a finding that he had category pneumoconiosis and no pulmonary impairment under the AMA guides. He filed another RIB claim in conjunction with an injury claim, and the ALJ dismissed it based on the wording in the RIB statute stating that it is a “one-time only” benefits.  However, the Board reversed the ALJ, after reviewing the wording of KRS 342.792, concluding that the statute was written to allow RIB claims where there is additional exposure to coal dust, even where there was a previous award.  The statute includes offset provisions for  the previous award, to the extent it was actually paid.

Thanks to Louisville attorney Peter Naake for digesting Kentucky's  appellate decisions on Workers Compensation.