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Baker v. Wal-Mart Stores6/10/2005
e ALJ's award in its entirety by opinion entered on August 6, 2004. This petition for review followed.
"The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law" [citations omitted]. The burden of proof in a worker 's compensation claim falls on the employee, who must prove every element of the claim. Because the ALJ decision was not in favor of Baker, the issue on appeal is "whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [Baker's] favor." Compelling evidence is such "that no reasonable person could reach the conclusion of the "
The ALJ acts as the finder of fact in all workers' compensation cases, and he, not the Board nor this Court, "has the authority to determine the quality, character,... substance,..." and weight of the evidence. The ALJ "may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof." This Court cannot "substitute its judgment" for that of the ALJ's, nor can this Court "render[ ] its own findings" [citations omitted].
If the ALJ's findings of fact were supported by substantial evidence, this Court is bound by them. Substantial evidence has been defined as "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [people]" [citation omitted]. It is well-established that the function of this Court in reviewing the Board "is to correct the Board only where the [ ] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice."
Baker's sole issue on appeal is that the ALJ committed reversible error by refusing to award him the appropriate benefits pursuant to KRS 342.730(1)(c), instead of KRS 342.730(1)(b). KRS 342.730, sections (1)(c)1 through (1)(c)3 provide, in pertinent part, as follows:
1. If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments; or
2. If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that temporary employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. This provision shall not be construed so as to extend the duration of payments.
3. Recognizing that limited education and advancing age impact an employee's post-injury earning capacity, an education and age factor, when applicable, shall be added to the income benefit multiplier set forth in paragraph (c)1. of this subsection. If at the time of injury...the employee had less than twelve (12) years of education or a high school General Education Development diploma, the multiplier shall be increased by two-tenths (0.2)[.]
In Fawbush v. Gwinn, our Supreme Court interpret
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