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
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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