Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: October 10, 2014
CLAIM NO. 201201531
K & D MINING PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
JACK CLEM
and
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. K&D Mining, Inc. (“K&D”) appeals from
the April 21, 2014 Opinion, Award and Order and the May 28, 2014 Order on
Reconsideration of Hon. Chris Davis, Administrative Law Judge (“ALJ”). The ALJ awarded Jack Clem (“Clem”) permanent
total disability (“PTD”) benefits, permanent partial disability (“PPD”) benefits,
and medical benefits for a cumulative trauma injury to his low back and
shoulders. He also filed a Form 103
alleging hearing loss. On appeal,
K&D challenges the finding Clem sustained a cumulative trauma injury and
the award of PTD benefits. It also
argues it was provided insufficient notice of Clem’s hearing loss, and it was
entitled to a credit for unemployment benefits he received. For the reasons set forth herein, we
affirm.
Clem
filed a Form 101 alleging cumulative injury to his low back and shoulders, as
well as hearing loss. He is a high
school graduate with no specialized training.
After serving in the United States Army, Clem worked as a coal miner for
forty years, most recently for K&D from 2008 through June 22, 2012. He worked both above and underground,
and his job duties included the mucking belt, unloading supplies, working on
equipment, and loading flat cars with timber and rock dust. “Mucking belt” involved kneeling while
shoveling muck weighing up to 25 pounds into a truck. At times, he was also required to assist in
lifting brakes that weighed up to 80 pounds.
Clem
currently suffers from pain through both shoulders and in his lower back. He recalled an incident in 2011 when he
lifted a heavy wet brake, and experienced pain in his shoulders. He did not receive medical treatment, and
missed no work for this injury, though it took three weeks to heal. He eventually quit working on June 22, 2012
because the mine was shut down. For some
time prior to that date, however, Clem was unable to perform all of his job
duties, particularly the required heavy lifting. He continued to work despite his pain because
his boss, Ralph Napier, allowed Clem to “work at his own pace.” Clem opined that he could not return to his
previous position in his current condition.
Clem testified he received
unemployment benefits for some time after June 22, 2012, though he was no
longer receiving them at the time of the final hearing. When asked how much he received in
unemployment benefits, Clem replied “about $635” every two weeks. He could not recall how many months he
received benefits beyond the initial six month period.
Dr. Arthur Hughes conducted an
independent medical exam (“IME”) on February 13, 2013. Clem described his work activities involving
extended kneeling, crouching, crawling, bending, and heavy lifting. Dr. Hughes diagnosed chronic bilateral
shoulder pain with restricted range of motion, chronic lower back pain with
probable right lumbar radiculopathy, and chronic bilateral knee pain. He believed the diagnosis is a result of
Clem’s work as a coal miner, explaining:
Mr. Clem has been involved
in underground mining for 40 years and much of this time has been spent
crouching in narrow shafts. He has
developed pains in multiple locations over the years as a consequence of
repeated microtrauma associated with his occupation.
Using the
American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”), Dr. Hughes
assessed a 16% whole person impairment rating.
Dr. Rick Lyon conducted an IME on July
18, 2013 at K&D’s request. Unlike
Dr. Hughes, Dr. Lyon found full range of motion in Clem’s lumbar spine, hips,
knees, and ankles. He found no evidence
of cumulative trauma, but diagnosed degenerative disc disease and degenerative
arthritis of the lumbar spine. He did
not believe Clem sustained a permanent impairment and assigned no rating.
Clem initially noticed some hearing
loss in 2004. In 2008, he visited the
Veterans Administration (“VA”) Hospital and received hearing aids. According to Clem’s testimony, the VA
physicians informed him his hearing loss was work-related. The VA records indicate Clem was diagnosed
with mild to moderate hearing loss in his left ear, and moderate to severe
hearing loss in his right. While ruling
out the possibility the hearing loss is related to his military service, the
records do not expressly state it is related to his work as a coal miner. Nor do the records indicate a whole person
impairment rating was assessed.
Dr.
Raleigh Jones conducted a University Medical Evaluation on January 23,
2013. An audiogram established a pattern
of hearing loss compatible with that caused by hazardous noise exposure in the
workplace. Dr. Jones stated Clem had
sloping bilateral sensorineural hearing loss and assigned a 16% impairment
rating in accordance with the AMA Guides.
The ALJ relied on Dr. Hughes’ report
to find Clem has a 16% work-related impairment due to cumulative trauma, and a 16% whole person impairment due to work-related hearing
loss. He further found Clem could not
return to his position as a coal miner, and is permanently totally
disabled. He explained:
Finally, I believe, in fact, that simply as a result
of his physical injuries and conditions herein [Clem] is permanently, totally
disabled. It is true he has a high
school education and is articulate.
Beyond that he cannot return to any of the work he has done for the last
forty-six years. He is sixty-four years
old. None of his past work is better
than semi-skilled, if that. I really
have no doubt he is unemployable.
K&D petitioned for
reconsideration, raising essentially the same arguments now raised on
appeal. In a May 28, 2014 Order on
Reconsideration, the ALJ overruled the majority of the issues as a re-argument
of the merits. However, the ALJ did
provide further analysis on two issues.
Regarding K&D’s claim for credit for Clem’s unemployment benefits,
the ALJ explained he had not been provided evidence of sufficient specificity
to award a credit. As to K&D’s
notice defense of Clem’s hearing loss claim, he indicated the VA medical
records had not established what compensable hearing loss Clem had in 2008, or
if he had been informed the hearing loss was work-related.
On
appeal, K&D first argues there is insufficient evidence to establish Clem
sustained a work-related injury. It
points to the fact Clem missed no time from work prior to the mine closing in
2012, and received no medical treatment for his shoulder, back and knee
pain. This Board may only disturb the
ALJ’s award if there is no substantial evidence of probative value to support
the decision. Special
Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Dr. Hughes’ report, however, is
substantial evidence to support the conclusion Clem suffered a work-related
cumulative injury. Dr. Hughes recorded
restricted range of motion, and assessed the impairment rating based on these
findings as well as Clem’s pain. He also
opined Clem’s condition resulted from his many years as a coal miner, where he
was required to bend, kneel, lift and crawl for extended periods of time. The ALJ was entitled to rely upon this
evidence. Square D
Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
K&D next claims the ALJ provided
an insufficient analysis for the award of PTD benefits. Ira A. Watson Department Store v. Hamilton,
343 S.W.3d 48, 51 (Ky. 2001) requires the ALJ, in considering an award of PTD
benefits, to consider the worker’s “post injury physical, emotional,
intellectual, and vocational status and how those factors interact. It also includes the consideration of the
likelihood that the particular worker would be able to find work consistently
under normal employment conditions.”
The ALJ considered Clem’s age, his
work history, his education level and lack of vocational training or
certifications in reaching the conclusion he is “unemployable”. Previously in his analysis, the ALJ had
accepted Dr. Hughes’ report in its entirety, including both his recommended
impairment rating and his belief Clem cannot return to work as a miner. Albeit brief, we conclude this analysis is
sufficiently individualized and considers the factors enunciated in Ira A.
Watson, id. Furthermore, it
adequately informs the parties of the basis of the ALJ’s decision and
demonstrates that he exercised his discretion based on the evidence before him.
Kentucky Supreme Court in New Directions Housing Authority
v. Walker, 149 S.W.3d 354, 358 (Ky. 2004).
K&D
also challenges the ALJ’s finding Clem is unable to return to his pre-injury
work. As a consequence of the above
analysis affirming the award of PTD benefits, we need not address this issue.
Next,
K&D argues Clem did not provide timely notice of his hearing loss
claim. He filed his claim on November 1,
2012, within two years of his last date of noise exposure on June 22,
2012. However, Clem testified that he
visited the VA Medical Center in 2008.
He was diagnosed with hearing loss and prescribed hearing aids in
November, 2008. Clem testified the VA
physician told him the hearing loss was related to his work in the mines. K&D therefore argues Clem failed to
notify it of his claim “as soon as practicable” as required by KRS
342.185.
In the Order on Reconsideration, the
ALJ made two factual determinations concerning the notice issue. He first concluded there was insufficient
evidence to establish exactly what the VA providers advised Clem regarding the
cause of his hearing loss. Second, he
concluded the VA records do not establish what compensable hearing loss Clem
had in 2008.
These
factual determinations are supported by substantial evidence. The VA records indicate that Clem’s prior
military service was ruled out as a cause of his hearing loss, but nowhere do
the records attribute the loss to his work in the coal mines. See
Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001)(a
claimant is not required to give notice until informed by a physician that he
has sustained a work-related injury).
While Clem testified he was told the hearing loss related to his coal
mining work, the ALJ enjoys the discretion to reject this statement as
irrefutable proof that Clem was unequivocally informed of a compensable hearing
loss claim. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Furthermore, the VA providers did not assess
an impairment rating, and therefore it is unclear if Clem had a compensable
hearing loss claim as of 2008.
Because
the ALJ’s factual findings are supported by substantial evidence, this Board is
not at liberty to disturb them. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). Being unconvinced Clem was informed his
hearing loss was work-related or compensable in 2008, the ALJ properly
determined sufficient notice was provided as Clem filed his claim within two
years of his last exposure to traumatic noise. Manalapan Mining Co.,
Inc. v. Lunsford, 204 S.W.3d 601 (Ky. 2006).
Finally,
K&D claims it is entitled to a credit for the unemployment benefits Clem
received after the mine shut on June 22, 2012.
As the party seeking the credit, K&D bore the burden of establishing
a proper legal basis for the request. Millersburg Military Institute v. Puckett, 260 S.W.3d 339,
342 (Ky. 2008). It did not submit
records of the unemployment benefit payments made to Clem. Instead, it relied entirely on Clem’s
testimony. However, his testimony
established only that he “believed” the payments were “about” $635 every two
weeks. He was also unsure as to how many
weeks he received payments beyond the initial six month period. We believe the ALJ acted within his
discretion as fact-finder in concluding this testimony was insufficient to
establish entitlement to the credit. Special Fund v.
Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly, the April 21, 2014
Opinion, Award and Order and the May 28, 2014 Order on Reconsideration of Hon.
Chris Davis are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON DONALD NIEHAUS
333 W VINE ST #1100
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON CHRISTOPHER DAVIS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601