July 14, 2017 201500657

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED: July 14, 2017



CLAIM NO. 201500657 & 201500656



















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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


STIVERS, Member. Cumberland Mine Services, Inc. (“Cumberland Mine”) appeals from the January 27, 2017, Opinion and Award and the March 22, 2017, Order overruling Cumberland Mine’s Petition for Reconsideration of Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). In the January 27, 2017, Opinion, Order, and Award, the ALJ awarded Richard Estes (“Estes”) permanent partial disability (“PPD”) benefits and medical benefits for work-related hearing loss. On appeal, Cumberland Mine asserts enhancement of the PPD benefits by the three multiplier is erroneous.

          The May 4, 2015, Form 103 (Claim No. 2015-00656), alleges on October 6, 2013, Estes sustained work-related hearing loss while working as a welder on a surface mine for Cumberland Mine in the following manner: “Daily exposure to constant loud noise that was emitted [sic] the equipment in and around where the Claimant worked.” The Form 103 asserts Estes became aware of his condition on October 29, 2014, and provided written notice to Cumberland Mine on that same date.

          The May 4, 2015, Form 101 (Claim No. 2015-00657) alleges Estes sustained work-related cumulative trauma injuries to his neck and back on October 6, 2013, while in the employ of Cumberland Mine.

          By order dated May 27, 2015, the ALJ consolidated the claims.

          On July 27, 2015, Estes filed a Motion to Amend his Form 101 to include additional cumulative trauma injuries to the shoulders and bilateral carpal tunnel syndrome. By order dated August 5, 2015, the Motion to Amend was sustained.

          Estes’ July 1, 2015, deposition was introduced. He testified that he worked for Cumberland Mine from 2001 to 2013. Regarding his use of hearing protection, Estes testified as follows:

Q: During this employment with Cumberland, did you always wear your hearing protectors?


A: Not always.


Q: But it was up to you to wear them?


A: Yes, sir.


Q: So there were days you would wear them; some days you would not?


A: Yes, sir.


Q: What percentage of this time period did you wear the ear protectors, then?


A: Probably 60 percent.


Q: But it was up to you to stick them in your ear?


A: Yes, sir.


Q: In other words, your boss didn’t stick them in your ears?


A: No, sir.


Q: But they were available if you wanted to use them?


A: Yes, sir.


          Estes also testified at the November 28, 2016, hearing. He characterized the noise to which he was exposed at work as follows:

A: Oh yes, absolutely, absolutely loud, just metal against metal just beating all day long. You had your motors running in there, super loud.

Q: These loud noises, is this something you were exposed to each and every day?


A: Absolutely, every day, every day.


          Regarding the need to wear hearing protection versus the need to communicate with other employees, Estes testified:

A: You had to be able to hear people hollering at you, talking to you, because if you wore hearing aids it was a matter of getting killed, or being killed, or killing somebody because you had to be able to hear someone talking to you – or hollering at you. It wasn’t talking to you, hollering.


Q: So hearing was important from a safety standpoint?


A: Absolutely, yeah, absolutely.


          Concerning the effect of his hearing loss, Estes testified he does not believe he can return to his pre-injury job:

A: And, Richard, if we’re just separating again not talking about the physical problems, but if we’re talking about just your hearing, do you believe you could go back and do your job as a welder safely with the shape your hearing is in today?


Q: No, no, it’s – it’s gotten worse. There at the end if you talked to me you gotta get up in my ear when we was [sic] inside the plant just – and of course a lot of men were like that because their hearing was bad, too, but you had to get up in their ear and holler. One time we was [sic] working in the tunnels, it’s where the coal goes through the tunnel now, because they have a train load out where they load the trains. I was working under a vibrator screen, they weigh about 35-ton, and it was running and the boss had walked away, him and another co-worker that I was with had walked away. He said he didn’t know why he turned around, but he turned around and seen [sic] it falling and hollered at me. If I had been under there, it would have killed me.


          The record contains the September 21, 2015, report of Dr. Barbara Eisenmenger, the designated University Evaluator. Dr. Eisenmenger evaluated Estes on August 18, 2015, and set forth the following diagnosis:

Mr. Estes has greater hearing loss than would be expected for an individual of 56 years of age. Objective and behavioral measures are consistent and show a high frequency pattern typical of that seen with long term noise exposure. The high frequency loss is greater in the right ear. Based on the reported history of noise exposure, the apparent absence of other factors associated with hearing loss, and the results of the hearing evaluation, the primary cause of this high frequency hearing loss is long term noise exposure with a secondary low frequency hearing loss of unknown origin. When compared to a previous audiogram in 2014 the low frequency hearing loss was not as severe.


          Regarding causation, Dr. Eisenmenger checked “Yes” by the following comment and question:

1.  Audiogram and other testing establish a pattern of hearing loss compatible with that caused by hazardous noise exposure in the workplace.


2.  Within reasonable medical probability, is plaintiff’s hearing loss related to repetitive exposure to hazardous noise over an extended period of employment.


          Dr. Eisenmenger assessed a 10% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) and imposed the following restrictions: “Hearing protection devices should be worn whenever exposed to loud noise. Restrictions on work activities should be based on ability to perform job requirements using hearing protection devices.”

In the June 23, 2016, Benefit Review Conference (“BRC”) Order and Memorandum, the following contested issues were listed: benefits per KRS 342.730 & 7305; work-relatedness/causation; notice; average weekly wage; unpaid or contested medical expenses; injury as defined by the ACT; exclusion for pre-existing disability/impairment; and TTD.

          In the January 27, 2017, Opinion and Award, the ALJ supplied the following findings of fact and conclusions of law regarding Estes’ entitlement to the three multiplier:

     As it relates to whether the Plaintiff is entitled to any statutory enhancement per KRS 342.730(1)(c), also commonly known as the “multipliers”, the following analysis was made. Under KRS 342.730(1)(c)(1), an injured employee who lacks the physical capacity to return to the work performed on the date of the injury may receive a triple income benefit, while KRS 342.730(1)(c)(2) encourages those who retain the physical capacity to return to the same type of work and earn the same or greater wage to receive a double income benefit during any period of time that employment at that wage level ceases. If both sections of KRS 342.732(1)(c) are applicable, an Administrative Law Judge is required to make a further determination.    

     In the case at bar, the Plaintiff did not return to work at the same or greater wage and therefore a complete Fawbush vs. Gwinn, 107 SW3d 5 (Ky. 2003) analysis is not warranted. Only where KRS 342.730(1)(c)1 and KRS 342.730(1)(c)2 both apply, must the ALJ conduct a Fawbush analysis.

The Kentucky Supreme Court held in Adams vs. NHC Healthcare, 199 SW3d 163, 168-169 (Ky. 2006):

The court explained subsequently in Adkins v. Pike County Board of Education, 141  S.W.3d 387 (Ky. App. 2004), that the Fawbush analysis includes a broad range of factors, only one of which is the ability to perform the current job. The standard for the decision is whether the injury has permanently altered the worker's ability to  earn  an  income. The  application  of  KRS 342.730(1)(c)1 is appropriate if an individual returns to work at the same or  a  greater wage but is unlikely to be able to continue for the indefinite future to do work from which to  earn  such a wage.


     Id.  at 168, 169.


Accordingly, in applying KRS 342.730(1)(c)1 I find the following:


     The Plaintiff did not return to work with the Defendant/employer, or any other employer after he was laid off on October 6, 2013. I find Mr. Estes cannot return to the type of work he performed at the time of the injury. In making this finding, I rely on the evidence of medical restrictions from Dr. Eisenmenger that Mr. Estes must use hearing protection if he is exposed to loud noise. Mr. Estes testified he could not do his job if he used hearing protection. Therefore, after considering the medical evidence and  the plaintiff's testimony, the undersigned finds Mr. Estes lacks the  physical capacity to return to the work performed on the date of the  injury  and is entitled to the 3 multiplier per KRS 342.730(1)(c)1.

          Cumberland Mine filed a petition for reconsideration asserting the ALJ erred in awarding the three multiplier because Estes’ testimony demonstrates he is able to perform his pre-injury work with hearing protection.

          In the March 22, 2017, Order overruling Cumberland Mine’s Petition for Reconsideration, the ALJ held as follows:

This matter comes before the undersigned Administrative Law Judge (ALJ) upon the defendant’s Petition for Reconsideration. Specifically, the defendant states:

“the Defendant respectfully requests reconsideration of the Opinion and Award in this matter in light of Plaintiff’s deposition testimony and respectfully requests a new determination in regard to Plaintiff’s entitlement to enhancement of his permanent partial disability benefits by virtue of KRS 342.730(1)(c)(1)”

The defendant argues that the testimony of the plaintiff in his deposition varies significantly from his Hearing testimony. It is noted that the plaintiff’s deposition was taken on July 1, 2015, and was considered by the undersigned. The plaintiff’s Hearing testimony was November 28, 2016, 17 months after his deposition testimony was taken. The defendant states that the testimony varies significantly – however I disagree.

While Mr. Estes was asked by defense counsel during his deposition how often he wore his hearing protection – there was no questioning regarding the effect on his work if he did, or if he not did not, wear the hearing protection. The plaintiff’s testimony in his deposition testimony was more of an estimate of what percentage of time he would wear the hearing protection. Mr. Estes’ Hearing testimony was in response to the question as to the effect wearing the hearing “aids” had on the safety of his work environment. I found Mr. Estes’ testimony credible and persuasive as to the safety as well as the ability of a welder to perform his work in his particular work environment if he wore hearing protection. Mr. Estes testimony was substantial evidence upon which I relied in making my findings.

When conflicting evidence is presented, the ALJ may choose whom or what to believe. Pruitt v. Bugg Bros., 547 S.W.2d 123, 125 (Ky. 1977). Furthermore, the ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). It is also recognized that the ALJ is the sole fact-finder and in that role may choose to accept portions and disregard other portions of an expert witness’ testimony. Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky. 2003). I also found the plaintiff’s testimony credible and relied in part on his testimony of his condition and the effect that any treatment (or in this case the wearing of hearing protection) may have on his ability to safely perform his job. See Commonwealth, Transportation Cabinet v. Guffey, 42 S.W. 3d 618 (Ky. 2001). I find no error in the Opinion and Award.

The remainder of the Petition for Reconsideration is primarily the Defendant/employer’s re-arguments on the merits of the claim and is thus not allowed pursuant to Frances vs. Glenmore Distilleries, 718 SW2d 953 (Ky. App. 1986).


          Cumberland Mine makes the same argument on appeal that it made in its petition for reconsideration. We affirm.

           As the claimant in a workers’ compensation proceeding, Estes had the burden of proving each of the essential elements of his cause of action, including entitlement to enhanced income benefits via the three multiplier.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Estes was successful in his burden, the question on appeal is whether there is substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

KRS 342.730(1)(c)1 permits enhancement of income benefits when the ALJ determines that “due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of the injury”. In making a determination regarding the applicability of KRS 342.730(1)(c)1, the ALJ must "analyze the evidence to determine what job(s) the claimant performed at the time of injury and to determine from the lay and medical evidence whether he retains the physical capacity to return to those jobs."  Ford Motor Co. v. Forman, 142 S.W.3d 141, 145 (Ky. 2004).  In doing so, a claimant’s self-assessment of his ability to labor based on his physical condition is evidence upon which the ALJ may rely.  Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979). The question on appeal, then, is whether substantial evidence supports the ALJ’s conclusion Estes cannot safely return to his pre-injury work due to his hearing loss. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).       

          Substantial evidence supports the ALJ’s determination Estes is entitled to the three multiplier. The ALJ found the medical restrictions imposed by Dr. Eisenmenger regarding Estes’ use of hearing protection when exposed to loud noise in conjunction with Estes’ hearing testimony that he could not safely perform his pre-injury job using hearing protection to be persuasive. The ALJ determines the evidence upon which she will rely and this Board has no authority to invade her discretion. We are cognizant of Estes’ deposition testimony regarding his use of hearing protection “probably” 60% of the time while working for Cumberland Mine. On appeal, Cumberland Mine contends this testimony directly contradicts Estes’ hearing testimony in which he stated he would be unable to perform his pre-injury job using hearing protection. However, as noted by the ALJ in the March 22, 2017, Order, at his deposition, Estes was answering a question regarding the amount of time he wore hearing protection, while at the hearing Estes was answering specific questions about the effect hearing protection had on his ability to safely perform his job. The fact that Estes wore hearing protection “probably” 60% of the time while working for Cumberland Mine negates his testimony that hearing protection impacted his ability to safely perform his job. However, it was not unreasonable for the ALJ to infer that Estes’ ability to safely perform his pre-injury job while wearing hearing protection would be even more impaired due to his work-related hearing loss.

          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 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Further, as an appellate tribunal, the function of this Board in reviewing an ALJ’s decision is limited to a determination of whether the findings are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          Since Dr. Eisenmenger’s restrictions and Estes’ testimony concerning his ability to work while wearing hearing protection constitute substantial evidence supporting enhancement of Estes’ award of PPD benefits by the three multiplier, the ALJ’s decision may not be disturbed. 

In passing, since Estes never returned to work at the same or greater wage after the injury, an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) was not required. 

          Accordingly, the January 27, 2017, Opinion and Award and the March 22, 2017, Order overruling Cumberland Mine’s Petition for Reconsideration are AFFIRMED.   

          ALL CONCUR.