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September 18, 1998; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
No. JAMES HENRY FANNIN 1998-CA-000172-WC APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD FILE NO. WC-96-08271 APPELLEES

VALLEY DEVELOPMENT CORPORATION; UNINSURED EMPLOYERS' FUND; HONORABLE ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD

OPINION AFFIRMING ** ** ** ** ** BEFORE: DYCHE, EMBERTON, and HUDDLESTON, Judges. James Henry Fannin appeals from the Workers'

DYCHE, JUDGE.

Compensation Board's affirmance of the Administrative Law Judge's (ALJ) dismissal of his claim for Retraining Incentive Benefits. His claim was dismissed on limitations grounds, with the ALJ finding that Fannin had not carried his burden of establishing that he had filed his petition within five years of his last injurious exposure to the occupational hazard of pneumoconiosis. We have read the record, and find that appellant's testimony is indefinite, at best. He was, as the ALJ noted, a

poor historian; this is not a criticism of him personally, but in the context of attempting to establish a legal claim to retraining benefits, a poor memory is extremely disadvantageous. As much as we might sympathize with this gentleman, the law makes it his burden to establish the elements of his claim. been unable to do this. Board is affirmed. ALL CONCUR. He has

The opinion of the Workers' Compensation

BRIEF FOR APPELLANT: Leonard J. Stayton Inez, Kentucky

BRIEF FOR APPELLEE UNINSURED EMPLOYERS' FUND: A. B. Chandler III Attorney General of Kentucky David K. Martin Assistant Attorney General Frankfort, Kentucky

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