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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  July 7, 2017

 

 

CLAIM NO. 200797351

 

 

DAMAS RAMEY                                   PETITIONER

 

 

VS.        APPEAL FROM HON. JONATHAN WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

PIKE CO FISCAL COURT

AND HON. JONATHAN WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

 

RECHTER, Member.  Damas Ramey (“Ramey”) appeals, pro se, from the March 6, 2017 Order of Hon. Robert L. Swisher, Chief Administrative Law Judge (“CALJ”).  The CALJ overruled Ramey’s motion to reopen his claim.  For the foregoing reasons, we affirm.

          Ramey suffered a work-related back injury on January 17, 2007.  He filed a Form 101 and eventually settled the claim on April 24, 2008.  Benefits were calculated based on an 11% permanent impairment rating with no enhancements pursuant to KRS 342.730(1)(c). 

          Ramey moved to reopen the claim on December 7, 2011, arguing a worsening of disability.  Hon. Grant S. Roark, Administrative Law Judge, found no change in Ramey’s condition and dismissed the motion to reopen.  Ramey filed a second motion to reopen on February 19, 2014, stating he had ceased working due to his physical condition.  In the motion, he argued his worsened condition warrants application of the three multiplier.  In a September 18, 2014 Order, Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ Weatherby”), determined Ramey failed in his burden of establishing a worsening of his condition.  He further determined Ramey did not cease working as a result of his work injury.  The motion to reopen was dismissed.  No appeal was filed.   

          Ramey filed a third motion to reopen on January 17, 2017, arguing newly discovered evidence and his entitlement to the three multiplier.  He claimed ALJ Weatherby failed to properly apply the law in his September 18, 2014 Order.  Ramey further asserted he ceased working as a direct result of his work injury, and he is entitled to application of the three multiplier.  The CALJ overruled this third motion to reopen.  He explained Ramey failed to state any grounds to warrant reopening pursuant to KRS 342.125.

          Ramey now appeals, arguing ALJ Weatherby improperly considered his 2014 motion to reopen.  He continues to argue his work injury has worsened and he ceased working as a result, thereby entitling him to application of the three multiplier. 

          KRS 342.125 governs the reopening of claims that have been previously adjudicated or settled.  KRS 342.125(1) states that claims may be reopened on the following grounds:  fraud, newly discovered evidence, mistake, or change in disability.  In considering the motion to reopen, the CALJ must determine whether Ramey made a preliminary showing of the substantial possibility of proving one of the four grounds for reopening.  On appeal, our review is whether the CALJ’s decision constitutes an abuse of discretion because it is arbitrary, unfair or unsupported by sound legal principles.  Turner v. Bluegrass Tire Co., Inc., 331 S.W.3d 605, 609 (Ky. 2010).

          We find no abuse of discretion in the CALJ’s decision to overrule Ramey’s motion to reopen.  ALJ Weatherby fully considered Ramey’s assertion that his work-related injury had worsened and caused him to cease working.  He concluded Ramey did not satisfy his burden of proof.  If Ramey wanted to challenge ALJ Weatherby’s conclusions, the proper avenue was to appeal from the September 18, 2014 Order.  In the current motion to reopen, Ramey has not identified any new evidence or submitted proof his condition has worsened.  Instead, he argued only that ALJ Weatherby erred in his consideration of the 2014 motion to reopen.  Even if the assertions contained in Ramey’s motion to reopen are taken as true, they do not warrant reopening pursuant to KRS 342.125, and were not truly appealed.

          As such, the March 6, 2017 Order of Hon. Robert L. Swisher, Chief Administrative Law Judge is hereby AFFIRMED.

          ALL CONCUR.

 

 


 

 

PETITIONER, PRO SE:

 

DAMAS RAMEY

1310 RED CREEK RD

PIKEVILLE, KY 41501

 

COUNSEL FOR RESPONDENT:

 

HON SARAH K MCGUIRE

PO BOX 351

PIKEVILLE, KY 41502

 

CHIEF ADMINISTRATIVE LAW JUDGE:

 

HON ROBERT L SWISHER

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN WEATHERBY

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601