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Napier v. Whitaker Coal Corp.12/18/2003
istence of evidence that would have supported a favorable result is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp. , Ky., 514 S.W.2d 46 (1974). Instead, the burden on appeal is to establish that the favorable evidence was so overwhelming that no reasonable person could have failed to be persuaded by it and, therefore, that it compelled a favorable finding as a matter of law. See Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986); Paramount Foods v. Burkhart, supra; American Beauty Homes v. Louisville & Jefferson County Planning & Zoning Commission , Ky., 379 S.W.2d 450 (1964).
The claimant's testimony that he was unable to work as a result of his injury was some evidence of the effect that his back condition had on his ability to earn an income, but his testimony would not compel a finding of total disability. Hush v. Abrams , Ky., 584 S.W.2d 48 (1979); Grider Hill Dock v. Sloan , Ky., 448 S.W.2d 373 (1969). He relies on Commonwealth v. Workers' Compensation Board of Kentucky, supra, which stands for the principle that where there is uncontradicted medical evidence that an injured worker is capable of only sedentary work, a finding of some degree of occupational disability is compelled unless reasons are given for rejecting the medical testimony. At reopening, Dr. Gilbert testified that the claimant was unable physically to perform the type of work that he performed when injured, i.e. , coal mining. Although this uncontroverted testimony compelled a finding that the claimant had some occupational disability at reopening, it did not compel a finding that he was totally disabled as defined by KRS 342.0011 (11).
We note that the claimant does not dispute the finding that his actual occupational disability at settlement was only 50% although he admitted that he did not attempt to look for work after the mine shut down. Dr. Gilbert testified to significant work restrictions at reopening, but they differed little from the restrictions that he had imposed in 1995 and were less severe with respect to sitting and standing. We would agree that both sets of restrictions compelled a finding that the claimant's occupational disability was significant. Although we would also agree that there was evidence of increased disability at reopening, we are not persuaded that the more recent set of restrictions compelled the ALJ to determine that the claimant's disability had doubled since the settlement.
The ALJ rejected the claimant's argument that he was totally disabled, indicating that factors such as his age, education, and work experience were taken into account when finding a 60% disability. Although the claimant petitioned for reconsideration, he did not request specific findings with respect to the type of work that he remained capable of performing or its availability on the local job market. Under those circumstances, he can no longer complain that they were not made. Eaton Axle Corp. v. Nally, Ky., 688 S.W.2d 334, 338 (1985). Finally, he complains that the record contained no evidence of available work that he could perform to support a finding of less than total disability, overlooking the fact that it was his burden to prove that he was totally disabled because the local job market lacked any work he could perform.
The decision of the Court of Appeals is affirmed.
All concur.
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