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October 10, 2014 201201531

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 HON. CHRISTOPHER DAVIS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

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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