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Sheperd v. National Mines Corporation2/14/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Gorman Shepherd petitions for review from an opinion of the Workers' Compensation Board (Board) affirming a decision by the Administrative Law Judge (ALJ) to deny Shepherd's motion to reopen his claim against National Mines Corporation (National Mines). We affirm.
On August 3, 1987, Shepherd injured his back in a work-related accident. Shepherd subsequently filed an application for workers' compensation benefits wherein he alleged that he was totally and permanently occupationally disabled due to the physical and psychiatric consequences of the back injury . By award and order entered March 29, 1989, the ALJ awarded Shepherd occupational disability benefits based upon an occupational disability of 45%. The ALJ apportioned 10% of the occupational disability to the physical consequences of the back injury, and 35% to the psychiatric problems Shepherd suffered as a result of the accident.
On November 18, 1994, Shepherd filed a motion to reopen his 1989 award, alleging that he was totally and permanently disabled due to a worsening of his physical and psychiatric conditions. On March 14, 1996, the ALJ rendered a decision holding that there had been no worsening of Shepherd's physical condition, but that his psychiatric impairment had worsened over time to the extent that Shepherd had sustained an additional occupational disability of 25%, for a total occupational disability of 70%. On June 7, 1996, the Board rendered an opinion affirming the ALJ's decision.
On December 11, 2000, Shepherd filed the present motion to reopen, again alleging entitlement to total and permanent occupational disability benefits. On October 3, 2001, the ALJ entered an opinion holding that Shepherd had not met the burden of proof required of him to establish a worsening of his injury since the previous reopening. Shepherd subsequently filed an appeal with the Board. On April 4, 2002, the Board entered an opinion affirming the ALJ. This petition for review followed.
Shepherd contends that the medical evidence presented by Dr. William Weitzel compels a finding that there has been a worsening of his condition since the March 1996 opinion and award, and that the evidence further compels a finding that he is now totally occupationally disabled. Shepherd alleges that given the emphasis that had been placed upon Dr. Weitzel's opinion in the original two decisions regarding this claim, his opinions concerning Shepherd's condition and his ability to perform work activities are compelling evidence that should have been relied on by the ALJ. Shepherd alleges that his failure to rely on Dr. Weitzel's opinion in this claim is sufficiently erroneous to warrant a reversal of the ALJ's denial of his petition to reopen.
Certain basic principles exist in a reopening of a workers' compensation claim. First, the burden of proof falls upon the party seeking reopening. Griffith v. Blair, Ky., 430 S.W.2d 337, 339 (1968). Here, that party is Shepherd. Consequently, pursuant to the applicable version of KRS 342.125, it was Shepherd's burden to prove that the effects of the injury of August 3, 1987, had worsened since the amended award of March 14, 1996, so as to cause Shepherd to suffer an increase in vocational disability. In ascertaining whether there has been a change, it was the ALJ's obligation to analyze not only the evidence presented at the time of reopening, but also the evidence presented previously. W. E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 455 (1946). Here, the comparison is to Shepherd's condition after his 1994 reopening, and not as compared to his original problem.
Dr. Weitzel examined Shepherd
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