Workers’
Compensation Board
OPINION
ENTERED: December 13, 2016
CLAIM NO. 201301891
JAMES RIVER COAL CO/LEECO COAL/
BLUE DIAMOND COAL PETITIONER
VS. APPEAL FROM HON. GRANT
S. ROARK,
ADMINISTRATIVE LAW JUDGE
RENZA JONES
and HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
James River Coal Co/Leeco Coal/Blue Diamond Coal (“James River”) seeks review
of the June 24, 2016, Opinion and Order of Hon. Grant S. Roark, Administrative
Law Judge (“ALJ”) finding Renza Jones (“Jones”) sustained work-related injuries
on December 20, 2011, and June 16, 2014, while in the employ of James River. The ALJ awarded temporary total disability
(“TTD”) benefits, already paid, permanent partial disability (“PPD”) benefits
enhanced by the three multiplier set forth in KRS 342.730(1)(c)1 for each
injury, and medical benefits. James
River also appeals from the August 17, 2016, Order denying its petition for
reconsideration.
On appeal, James River challenges enhancement of the PPD
benefits awarded for the first injury by the three multiplier.
Jones’ March 14, 2014, and September 14, 2015, depositions
were introduced and he testified at the April 25, 2016, hearing. During his March 14, 2014, deposition, Jones
provided the following testimony of how his December 2011 facial injury occurred
and the subsequent treatment he underwent:
Q: And explain how you were injured on
December 20, 2011.
A: I started work at around five thirty
that evening. I hauled two loads of supplies in that day. I came out, loaded my
car again. That was at, I can’t remember the time frame when I came out and
loaded up, but it was before third shift dropped because I had to get up there
and get unloaded before third shift came in. And it was probably ten thirty or
eleven, twelve maybe at the most. I got unloaded probably, it took them
probably an hour and ten or fifteen minutes to get me unloaded. And when I got
unloaded I was headed back out. By that time third shift had already came in.
And it was a – it’s called 049 drive is what it’s called, where I got hurt. What
it is, you’ve got, it’s a little embankment, you come up like this and it goes
down and comes back up. When I came over the hill my front wheels went over and
my back wheels came up and throwed [sic] me straight up. It drug me out of my
rail runner, I hit the flat car, and hit the ground. When I hit the ground I
was covered in blood. It was automatically numb. I got my radio. I hit the
emergency button, hollered for emergency. I probably hollered for five or ten
minutes before somebody answered me. And then when they did answer me they
couldn’t understand what I was saying because I couldn’t talk. And finally they
got me help. It took them, I think an hour and ten or fifteen minutes to get me
out.
Q: Did you ever lose consciousness
during this?
A: Yeah, yeah.
Q: Do you remember, or can you –
A: I lost consciousness probably four
to five seconds when I hit the ground. It took me four or five seconds to come
back to what happened.
Q: And then they took you to Hazard
ARH, is that right?
A: Uh-huh (yes), they took me to Hazard
ARH. They got the piece of old rusty plate off my jugular vein. It was laying [sic]
right on my jugular vein. They got it out. He put a couple of stiches in it,
enough to fly me to UK.
Q: And I think at UK, was it Dr. Chang
went back in just to kind of see what was going on?
A: Yeah. He got some rust out of it and
cleaned it real good.
Q: And do you remember how long you
were at UK.
A: I stayed overnight at UK and they
released me to go home the next day. That was on the 21st I got
released. The 23rd I was back in UK. Infection set up and it swelled
my head up. So when I went back on the 23rd they made an incision
and put a drain tube in. And I had to wear a drain tube I think for four to
five days.
Q: Did you go anywhere – did you just go
directly back to UK or did you go like back to Hazard ARH?
A: No, I went straight back to UK.
Q: Okay. And I’m sorry, how long did
you say you had to wear the drain tube?
A: A week, four to five days, maybe
longer than that. I can’t remember at the moment.
Jones was referred to Dr. Daniel H. Stewart,
with the University of Kentucky (“UK”) Plastic and Reconstructive Surgery
Department, who performed facial surgery.[1] At the time of the injury, Jones worked as a
supply man, a job which he described as follows:
Q: What did you do as a supply man?
What did that require you to do on a day-to-day basis?
A: Hauled supplies to the face,
section.
Q: Okay. Explain how you would do that.
Did you have to load something?
A: Yeah, it was an L-shaped flat
car. You load your block roof bolt
plates, glue, hydraulic oil, timbers, if they was [sic] building you’d load
timber. Belt line, you’d have to haul belt line and structure.
Q: Did you put all those supplies on
the flat car by hand –-
A: No.
Q: -- or did you have to use a –-
A: Use a loader.
Q: --loader? Okay. Did you put any of
the supplies on the flat car by hand?
A: Well, the oil you had to stack on by
hand.
Q: Do you know how much the oil
weighed?
A: The cans of oil weighs [sic], I’m
wanting to say it weighs twenty-eight to thirty pounds a can. The reason being
that you have to load it by hand because it was stacked too high on the pallet
and it wouldn’t clear in the coal mines. You had to stack it down.
Q: And then you’d drive the flat car?
A: You’d drive the flat car to the
face, and then when you got to the face you had to unload, hand unload the oil.
And the scoop driver, he’d help you unload block and bolts and plates with the
scoop.
Q: When you say block are you talking
about just like concrete block?
A: Concrete block, pallets of concrete
block. A hundred block to a pallet.
Jones returned to work as a
dispatcher, a position he held for at least two years and three months:
Q: And tell me what you’re required to
do as a dispatcher.
A: What I’m required to do is track the
guys underground, make sure there ain’t [sic] no one hollering for track
clearance to come out, and make sure there ain’t [sic] nobody coming at him so
there won’t be a collision, monitor CO monitors. It’s basically a L3 tracking
system is what it is.
Q: Okay, and explain to me. I don’t
know what that is. Go ahead, explain for the record what that is. Is that like
a computer terminal you’re looking at?
A: Well, you’ve got one, two, three,
four, five you’re looking at.
Q: Okay.
A: It shows you – we’ve got a forty-two
inch TV, a regular TV, and it shows you the map of the coal mines. And these
guys have got radios they pack with them and it shows a signal where they’re at
in the coal mines.
Q: Okay.
A: And you track the guys is what you
do.
Q: Okay. So you’re working in a
building, a structure at the mine?
A: Right, warehouse.
Q: Warehouse, okay. Is this a seated
job, you do this sitting down?
A: Yeah.
Q: Who is your supervisor there?
A: Rick Compton.
Q: And you said you monitor for
collisions. Are you talking about of mine cars?
A: Right, right. The radios has [sic] got
like emergency buttons on it in case we get injured. They hit that button and
it automatically comes outside and you holler and get them help and all this
stuff.
Q: Okay. So you would look for that?
A: You’ve basically got a man’s life in
your hands right there.
Q: And you contact the emergency
services or whoever needs to be contacted?
A: Right, right.
Q: Okay. And did you say you were
monitoring, is it carbon dioxide?
A: It’s L3, L3 tracking system, but
you’ve got to monitor CO monitors.
Regarding his work restrictions,
Jones testified:
Q: Are you working under any
restrictions?
A: The restrictions I’ve got is heat, I
ain’t [sic] allowed in the heat or the cold. I’ve got to stay out of the
sunlight. No lifting over, I think he said fifty to sixty pounds.
Q: Who assigned those restrictions to
you?
A: Well, I was told by my doctor.
Q: I mean who was the doctor?
A: Stewart.
Q: That’s Dr. Stewart at UK?
A: Yeah.
Q: Have you provided those
restrictions, have you provided anything to the employer?
A: Yeah.
Q: Okay. Who did you provide that to?
A: They’ve got it on file at work.
Q: Okay. Do you remember who you would
have taken that to? Was it the HR Department?
A: Kelly Cochran, safety guy, safety
director.
Jones did not return to work as a
supply man and worked significantly less hours after returning to work. At the time of his deposition, he was taking 600
mg of Neurontin twice daily prescribed by Dr. Stewart. As a result of his facial injuries, when
exposed to heat Jones experiences “real bad headaches.” Cold temperatures cause throbbing pain and his
face becomes numb. The right side of his
face is constantly numb. Shaving causes
immense facial pain. Jones avoids
lifting as much as possible. When he
lifts too much weight, he experiences burning in the right side of his neck and
his scar turns blood red. Before he goes
out in the cold, he puts on a toboggan and wraps his face.
At his September 14, 2015, deposition, Jones testified he was
currently working part-time at the Hazard Nursing Home. About a month before his June 16, 2014, injury,
he had been moved to the warehouse removing parts from a shelf with a forklift
and loading them onto a truck.[2] Cold weather still causes his face to throb
and become numb. Heat causes migraine
headaches, and the right side of his face turns red. Lifting more than twenty pounds causes facial
pressure and headaches. Jones never
returned to his regular customary job duties after the first injury.
At the April 2016 hearing, Jones testified he was still
working part-time at the Hazard Nursing Home.
He again described the requirements of the supply man job which he estimated
entailed working between sixty and eighty hours weekly. Jones explained he returned to work after
missing two days because his employer informed him he would lose his Christmas
bonus if he received workers’ compensation benefits. He was placed in the warehouse answering the
telephone for a couple of hours.
Although Jones returned to full-time work after Christmas, his hours
dropped to thirty-five to forty hours weekly.
He has never returned to the underground mine. Jones explained he still has numbness,
tingling, and pain in the right side of his face which includes the jaw and
neck. His right ear is also numb. Regarding the effects of temperature change on
his facial injury, Jones testified:
Q: Okay. How about temperature changes?
A: Temperature change, it gives me
headaches and starts throbbing.
Q: What does now? What if it’s – what
if it’s hot out, what happens?
A: the heat – heat – I mean, it reacts
just like the coldness. I mean, the coldness, it’s like frost bit, like it will
start tingling, real numb. And, the heat it gives me a headache.
Jones further testified pulling,
pushing, lifting, straining, and temperature change affects his facial injury creating
difficulty for him to perform his regular underground job. Jones still takes Gabapentin for the facial
injury. He testified his superintendent
would not allow him to return to work in the underground mines. He believes he is unable to work in the
underground mines explaining:
Q: And, after that, did you testify
earlier, that you asked to go back underground?
A: Yes, sir.
Q: And, your testimony is that the
employer didn’t have a position for you or wouldn’t allow that.
A: He wouldn’t let me go.
Q: All right. But, you were, at the
point, willing and ready to go back?
A: Yeah. I had full release to go back underground.
Q: And, you said that you didn’t think
that you could do that job because of the pushing and pulling—-
A: Right.
Q: -- involved. Okay. And who’s
restricted you from pushing and pulling?
A: On the facial injury?
Q: Yes.
A: They wasn’t no – when I first seen
him, he had me on restrictions, but the temperature and the heat change and
things like that, he give me a full release to go back to work.
Q: Uh-huh (yes).
A: So, when I went back to work the
superintendent, Rick Campbell, he wouldn’t let me go back because—
Q: Right.
A: --of the temperature change—
Q: Right. Right. But, that was my
question.
A: --and the pushing and pulling.
Q: The question was, did anybody have
you on restrictions — any physician [sic] have you on restrictions for pushing
and pulling for your face injury?
A: Not at that time.
Jones testified he was aware of no
doctor imposing such a restriction.
Concerning the extent and duration of the December 20,
2011, facial injury and applicability of the three multiplier, the ALJ provided
the following findings of fact and conclusions of law:
Extent & Duration
The next issue becomes the extent of
plaintiff's impairment for his two injuries. With respect to plaintiff's
December 20, 2011 injury, the Administrative Law Judge is persuaded by the 19%
impairment rating assigned by Dr. DuBou. The defendant maintains Dr. Snider's
impairment rating is more credible because Dr. DuBou combined impairment
ratings from different sections of the AMA Guides which the defendant does not
believe is appropriate. However, given the extensive treatment and ongoing pain
plaintiff has from his injury, and the fact that Dr. DuBou is a plastic surgeon
and well-versed in providing impairment ratings for the effects of scars, it is
determined his impairment rating is more appropriate in this instance than that
of Dr. Snider.
With
respect to multipliers, the defendant also maintains that plaintiff has no
restrictions which would prevent him from returning to work as an underground
miner. It points out plaintiff's only real restrictions for his December, 2011
injury are to avoid extremes of temperature. However, the parties both agree
plaintiff attempted to return to work for the defendant as an underground miner
but was prohibited from doing so by the defendant. According to plaintiff's
testimony, he was prevented from doing so because of the effects of his injury
and his restrictions against extremes of temperature. Given that the defendant
acknowledges it would not allow plaintiff to return to work as an underground
miner, the Administrative Law Judge accepts plaintiff's testimony on this point
and finds that plaintiff does not retain the physical ability to return to work
as an underground miner because of the effects of his December, 2011 work injury.
Therefore, plaintiff is entitled to application of the 3x multiplier in KRS
342.730(1)(c)(1). His award of benefits for his December 20, 2011 work injury
is therefore calculated as follows:
$1,451.95
x 2/3 = $967.97 → $541.47 (maximum 2011 PPD rate) x .19 x 1 x 3 = $308.64 per week.
James River filed a
petition for reconsideration raising the same arguments it now raises on appeal
concerning the ALJ’s decision to enhance the award for the December 20, 2011,
injury by the three multiplier.
In the August 17,
2016, Order, the ALJ overruled James River’s petition for reconsideration. Regarding
the applicability of the three multiplier, the ALJ determined as follows:
As an initial matter, the
ALJ agrees it was error to suggest the parties agreed the defendant prohibited
plaintiff from returning to work underground. However, plaintiff testified
credibly to this fact and there was no evidence to the contrary in the record.
As such, the ALJ remains persuaded that plaintiff was prevented from returning
to work underground by the defendant. The defendant also argues it makes no
sense to believe the defendant did not allow plaintiff to return to work based
on restrictions against extremes of temperature because these written
restrictions first appear from Dr. DuBou almost two years after the injury.
However, plaintiff’s testimony seems to suggest the defendant prevented him
from returning to work underground due to a combination of restrictions against
pushing/pulling and against extremes of temperature. Moreover, just because the
restrictions against extremes of temperature first appear in print from Dr.
DuBou almost 2 years later, that does not preclude the very real possibility
that one of plaintiff’s treating physicians suggested this restriction to him
verbally which was then relayed to the defendant employer. In any event, the ALJ is persuaded from
plaintiff’s testimony that the defendant prohibited him from returning to work
underground, regardless why the defendant was motivated to do so. More importantly, the ALJ accepted and
credited plaintiff’s testimony that he does not believe he is capable of
returning to work underground due to the effects of his injuries. For these reasons, the ALJ remains persuaded
plaintiff is entitled to application of the 3x multiplier and the defendant’s
petition on this point is denied.
On appeal, James River argues the ALJ
relied upon Jones’ testimony which is not supported by the record. It contends the accuracy of Jones’ testimony
is in question due to his assertion that pushing and pulling underground and
extreme temperatures caused James River to refuse to return him to work
underground. James River asserts Jones’
testimony cannot be true, as the restrictions of pushing and pulling and
extreme temperatures were not issued by Dr. Richard DuBou until August
2013. It notes Dr. DuBou’s restrictions
were not in existence until Jones returned to work at a different job in the warehouse. Thus, Jones’ assertion he was prevented by
James River due to these restrictions is “impossible.”
James River also takes issue with the
ALJ’s statement that even though the restrictions of Dr. DuBou were not imposed
until two years after the incident, that does not “preclude the very real
possibility that one of [Jones’] treating physicians suggested this restriction
to him verbally which was then relayed to [James River].” It characterizes this statement as an
unsupported guess as there is no evidence in the record establishing these
restrictions were verbally given to James River or Jones prior to the time he
saw Dr. DuBou.
James River further contends the ALJ
essentially disregarded all the other evidence when he stated he was persuaded
by Jones’ testimony that James River prohibited him from returning to work
underground. James River notes there is
no dispute Dr. Stewart fully released Jones on December 5, 2012, and Jones
conceded he was not restricted from pushing and pulling after that date. James River also maintains there is no evidence
establishing Jones was subjected to extreme temperatures while working as an
underground supply man. Further, the ALJ
did not make a specific finding Jones worked in extreme temperatures prior to
his injury.
Jones, as the claimant in a workers’
compensation proceeding, had the burden of proving each of the essential
elements of his cause of action, including his entitlement to income benefits
enhanced by the three multiplier pursuant to KRS 342.730(1)(c)1. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (
In rendering a decision, KRS 342.285
grants an ALJ as fact finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The function of the Board in
reviewing an ALJ’s decision is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson
Department Store v.
In his August 15, 2013, letter, Dr.
DuBou set forth his findings based on his examination and the applicable
impairment rating. Dr. DuBou noted that
after Jones’ initial treatment, because of the marked sensitivity and Tinel’s
sign, Dr. Stewart was consulted on July 5, 2012, and “did exploration of the
right facial scar, exploration of the right face, and excision of a neuroma X2.” Although Jones initially improved, his pain
returned. Jones did not wish to undergo
further surgery. Jones has daily pain “almost
throbbing in the area especially if cold or heat affects it.” There was “a definite Tinel’s” in numerous
areas of his face and the revised scar had widened significantly. Jones had significant hypesthesia in the area
of the great auricular nerve indicating damage to the nerve in that area and in
all likelihood scarring in areas of the trigeminal nerve which supplies
sensation to the face. Dr. DuBou
assessed a 19% impairment rating pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”) and provided the basis for his
calculations. Dr. DuBou imposed the
following restrictions:
The restrictions I would put
him on were to avoid extremes of temperature either cold or hot since that
causes his pain to increase. As with any scar, it is more sensitive to the
effects of actinic radiation, heat, cold, shearing forces and so forth. It is
for that reason that Class I states, temporary exacerbation may occur with
exposure to certain physical chemical agents. As a restriction I would ask him
to avoid prolonged direct sunlight, prolonged direct or indirect heat. The scar
tissue will breakdown far more rapidly than the normal skin and he should be
aware of that. He should also wear sunscreen #50-60 at all times to avoid
additional difficulty with the scar.
Significantly, Dr. Stewart’s July 11,
2012, record states that after undergoing excisional scar revision for the
painful right facial scar, Jones still had pain to palpation along the anterior
border of the mid- sternocleidomastoid muscle.
The note reveals Dr. Stewart dissected deep into this area in anticipation
of finding a neuroma involving the greater auricular nerve. However, he was unable to find the nerve
within the scar. Therefore, Dr. Stewart
was hopeful that the simple scar excision would result in relief of this
discomfort. He explained to Jones that
should this persist and become more symptomatic, it may require additional
operative treatment. In the meantime,
Jones continued on light duty at work and was to follow up in another
month.
Dr. Stewart’s August 15, 2012, note
reveals he still had Jones on light duty status. Dr. Stewart’s December 5, 2012, typewritten
note indicates Jones had strong Tinel’s signs localized at the scar, and while
he still had this to some degree, Tinel’s sign was advanced toward his right
ear. He continued Jones on 600 mg of
Neurontin as it provided some improvement.
Dr. Stewart hoped the facial pain would eventually dissipate, especially
with assistance from the facial pain clinic.
As emphasized by James River, in a document styled “Return to Work
Status” dated December 5, 2012, stated Jones could return to work at full duty.[3] However, a handwritten note also dated December
5, 2012, from the UK Plastic and Reconstructive Surgery Department indicates
Jones continued to have facial pain which increased in cold weather, and Jones was
referred to pain management.
The testimony of Jones, the letter of
Dr. DuBou, and the records of Dr. Stewart and the UK Plastic and Reconstructive
Surgery Department constitute substantial evidence supporting the ALJ’s
determination to enhance Jones’ PPD benefits for the first injury by the three
multiplier. James River did not offer
any evidence rebutting Jones’ testimony that its superintendent refused to
allow Jones to return to the underground mine because he would be exposed to
pushing and pulling and temperature extremes.
More importantly, James River did not rebut Jones’ testimony during his
March 14, 2014, deposition that his medical restrictions, which were provided
to James River, included not working in heat or cold, staying out of sunlight,
and not lifting over fifty to sixty pounds.
Jones testified these restrictions were imposed by Dr. Stewart and
identified Kelly Cochran, the safety director, as an individual to whom he
provided the restrictions imposed by Dr. Stewart. He added that James River had those restrictions
on file at work. That testimony remained
unrebutted throughout the proceedings.
Thus, the ALJ’s statement in the August 17, 2016, Order that there is a
very real possibility one of Jones’ treating physicians suggested this
restriction to him verbally which was then relayed to James River is supported
by the evidence, and is not as James River urges, an unsupported guess. Support for the proposition that Dr. Stewart
provided these restrictions to Jones is found in the handwritten note of the UK
Plastic and Reconstructive Surgery Department dated December 5, 2012,
indicating Jones’ facial pain increased in cold weather. Consequently, the record establishes the
first time a physician prohibited Jones from working in extreme temperatures
and from pushing and pulling occurred prior to Dr. DuBou’s examination.
The ALJ was entitled to rely upon Jones’
testimony concerning his inability to return to the work he was performing when
injured, the restrictions imposed by Dr. Stewart, and Jones’ testimony he
provided these restrictions to James River in finding the three multiplier
applicable. When the issue is the
claimant’s ability to labor and the application of the three multiplier, it is
within the province of the ALJ to rely on the claimant’s self-assessment of his
ability to perform his prior work. See Ira A. Watson Department Store v.
Hamilton, supra; Carte v. Loretto Motherhouse Infirmary, 19
S.W.3d 122 (Ky. App. 2000). We have
consistently held that it remains the ALJ’s province to rely on a claimant’s
self-assessment of his ability to labor based on his physical condition. Hush v. Abrams, 584 S.W.2d 48 (Ky.
1979). The ALJ’s decision to apply the
three multiplier pursuant to KRS 342.730(1)(c)1, was based on Jones’ testimony
he did not have the capacity to return to the type of work performed at the
time of injury. Jones’ testimony
constitutes substantial evidence supporting the ALJ’s decision.
In addition, Dr. DuBou’s restrictions,
standing alone, constitute substantial evidence supporting the ALJ’s decision
to enhance the award of PPD benefits for the December 20, 2011, injury by the
three multiplier.
The ALJ is permitted to draw all
reasonable inferences from the testimony.
Here, Jones’ unrebutted testimony is fully corroborated by Dr. DuBou’s
restrictions and are further reinforced by the records of Dr. Stewart and the
UK Plastic and Reconstructive Surgery Department. Because the findings and conclusions of the
ALJ are supported by substantial evidence in the record, we are without
authority to disturb his decision on appeal.
Special Fund v. Francis, supra.
Accordingly, the June 24, 2016,
Opinion and Order and the August 17, 2016, Order ruling on the petition for
reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON E SHANE BRANHAM
2452 SIR BARTON WAY STE 101
LEXINGTON KY 40509
COUNSEL
FOR RESPONDENT:
HON RONNIE SLONE
P O BOX 909
PRESTONSBURG KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The July 5, 2012, Operative Report reflects
surgery consisted of 1) Revision right facial scar; and 2) Exploration of right
face and excision of neuroma.
[2] Jones sustained a broken left foot when a
boom jack weighing approximately 7,800 pounds fell on it.
[3] The document notes Dr. Stewart is the attending physician, but is signed Donna Damion, APRN.