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RENDERED: November 25, 1998; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. ALBANY REDI MIX PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-96-94915 1998-CA-000463-WC APPELLANT

V.

WILLIAM REED ALBERTSON; RONALD W. MAY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING * * * * * * * * BEFORE: GUDGEL, Chief Judge; DYCHE and KNOX, Judges. This matter is before us on a petition for

GUDGEL, CHIEF JUDGE:

review of an opinion of the Workers' Compensation Board (board), which affirmed an opinion and award of an Administrative Law Judge (ALJ) awarding appellee William Reed Albertson total disability benefits. On appeal, appellant employer Albany Redi

Mix contends that the ALJ's finding as to total disability is not supported by substantial evidence. affirm. In Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992), the supreme court limited our review of the board's decisions as follows: We disagree. Hence, we

The WCB is entitled to the same deference for its appellate decisions as we intend when we exercise discretionary review of Kentucky Court of Appeals decisions in cases that originate in circuit court. The function of further review of the WCB in the Court of Appeals 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. As here, the only issue before the board was whether substantial evidence supported the ALJ's finding as to total disability, and the board concluded that such evidence existed. We have carefully reviewed the record herein. Based

upon that review, we cannot say that in assessing the evidence, the board committed an error which was so flagrant as to cause a gross injustice. Thus, we deem it appropriate to adopt the

board's opinion, determining that the ALJ's total disability award is supported by substantial evidence, as the opinion of this court as follows: Petitioner, Albany Redi Mix ("Albany"), appeals from an opinion and award rendered by the Hon. Ronald W. May, Administrative Law Judge ("ALJ"), on September 8, 1997 and from an order dated October 6, 1997 overruling its petition for reconsideration. The ALJ found respondent, William Reed Albertson ("Albertson"), to be totally occupationally disabled as a result of an injury he sustained on April 1, 1996 while in the employment of Albany. On appeal, Albany contends the award of 100 percent occupational disability is clearly erroneous on the basis of reliable, probative, and material evidence contained in the record. The award was apportioned 50 percent against Albany and 50 percent against the Special Fund. The Special Fund has not appealed but has filed a brief requesting relief in common with Albany, referring to Middlesboro Tanning Co. v. Eldridge, Ky. App., 925 S.W.2d 464 (1996). Albany, however, did not name the -2-

Special Fund in its notice of appeal as a party to this appeal, and therefore, the Board is without jurisdiction to grant the Special Fund any relief in this matter. 803 KAR 25:010,

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