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RENDERED: December 18, 1998; 10:00 a.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1998-CA-001011-WC (Direct) APPELLANT COSTAIN COAL, INC. (NOW LODESTAR ENERGY, INC.) PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-93-044623

v.

JOE BLACK; SPECIAL FUND; HON. ZARING P. ROBERTSON, Administrative Law Judge; AND WORKERS' COMPENSATION BOARD and NO. 1998-CA-001154-WC (Cross)

APPELLEES

ROBERT L. WHITTAKER, Director of SPECIAL FUND

CROSS-APPELLANT

v.

CROSS-PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-93-044623

JOE BLACK; COSTAIN COAL, INC.; HON. ZARING P. ROBERTSON, Administrative Law Judge; and WORKERS' COMPENSATION BOARD OPINION AFFIRMING ** ** ** ** ** BEFORE:

CROSS-APPELLEE

GUDGEL, Chief Judge; COMBS and KNOPF, Judges. The Special Fund and Costain Coal Inc., petition

COMBS, JUDGE:

for review of an opinion of the Workers' Compensation Board (the "board") affirming an order of the administrative law judge (the

"ALJ").

Having reviewed the arguments presented, the disputed

opinion, and the applicable law, we believe that the board has correctly interpreted the cited provisions and has not overlooked or misconstrued the provisions or relevant precedent. Nor do we

believe that the ALJ or the board erred in assessing the evidence so flagrantly as to cause gross injustice as required by Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685 (1992). Consequently, we affirm. follows: Petitioners, Special Fund and Costain Coal Inc. ("Costain"), appeal from an opinion and award rendered by the Hon. Zaring P. Robertson, Administrative Law Judge ("ALJ"), on March 31, 1997 and from an order dated November 11, 1997 overruling their petitions for reconsideration. On reopening, the ALJ awarded the respondent, Joe Black ("Black"), Tier II benefits pursuant to KRS 342.732(1)(b). Black had initially been awarded retraining incentive benefits ("RIB") in an opinion and awarded dated May 31, 1994. In support of that claim, Black had filed xray reports from Drs. William H. Anderson, Emery Lane, and John Myers interpreting xrays as showing coal workers' pneumoconiosis Category I but had introduced no evidence as to any pulmonary impairment. Upon reopening, Black submitted medical testimony from Dr. Myers who performed a full examination of him on April 10, 1995. Dr. Myers interpreted a chest x-ray taken that day as showing Category 1/1 and obtained vent studies of 60 percent of predicted on FVC and 59 percent of predicted on FEV1, the results of which he attributed to Black's pneumoconiosis. At his deposition, he acknowledged he had not performed pulmonary testing at the time of Black's original claim and therefore could not say whether Black's breathing had worsened. Dr. Lane provided evidence on behalf of Black interpreting two chest x-rays taken May 10 -2We adopt the board's opinion as

and July 26, 1995 as showing Category 1/1 pneumoconiosis. Dr. B.T. Westerfield provided evidence in support of Black's claim, performing a full examination on July 26, 1995. He interpreted an x-ray taken that day as showing Category

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