January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  April 20, 2018



CLAIM NOS. 201700182 & 201700181



JIMMY DUNN                                     PETITIONER


















                       * * * * * *



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



RECHTER, Member.  Jimmy Dunn (“Dunn”) appeals from the October 30, 2018 Opinion, Award and Order and the December 6, 2017 Order on Reconsideration rendered by Hon. Christina D. Hajjar, Administrative Law Judge (“ALJ”).  The ALJ determined Dunn suffered work-related hearing loss and awarded medical benefits, but dismissed his claim for cumulative trauma injuries to the low back, left hip, neck and right wrist.  On appeal, Dunn argues the evidence compels a finding he suffered work-related cumulative trauma injuries.  We affirm.    

     Dunn testified he worked for 22 years in the coal mining industry.  At Blue Diamond Coal Company, he worked as an equipment operator.  This position required him to hunch over in low coal, and to crawl and bend over.  The heavy equipment was jarring and required him to constantly twist his neck and back.  The operator’s seats of the machines rocked and vibrated, and caused daily low back pain.  When Dunn was in the mine, he often had to bend roof bolts with his hands up to 100 times per day. 

     Dunn testified he had suffered a previous work-related injury to his right wrist.  Also, he was off work for three months following an injury while operating a ram car during which he was jarred violently.  He testified his wrist still causes him pain when he puts pressure on it.

     Dunn was laid off on November 19, 2015 and has not worked since, though he has applied for jobs.  Dunn testified he suffers from constant, dull low back pain.  This pain impairs his ability to sit or stand for extended periods of time.  His neck does not cause him pain, but cracks and “crunches” when he turns.

     Dunn treated with Dr. Van Breeding on June 9, 2017 for back and left leg pain.  Dr. Breeding ordered x-rays which were normal. 

     Dunn also treated with Dr. Makut Sharma on July 17, 2017 for low back, left hip and left leg pain.  Straight leg raising tests on the right and left were positive.  Dr. Sharma ordered a lumbar spine MRI and x-rays of the hips and knees.  The MRI revealed degenerative disc disease at L4, L5 and S1.  He diagnosed lumbar disc degeneration at L4-5, but offered no opinion as to causation.

     Dr. Stephen Autry conducted an independent medical evaluation (“IME”) on March 8, 2017.  He diagnosed aggravation of cervical spondylosis and lumbar spondylosis with radiculopathy.  He attributed these conditions to Dunn’s work in the coal mines, and assigned a 6% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition, for the lumbar condition.  He assigned no impairment rating for the cervical condition. 

     Dr. Leyton Childers, DC, submitted a report dated November 2, 2016.  Dr. Childers diagnosed lumbalgia with radiculopathy, moderate degeneration of the lumbar spine, mild anterior osteophytes at L2-L5, right wrist pain, dizziness, and moderate degeneration of the cervical spine with anterior osteophytes at C4-C6.  He attributed all of Dunn’s conditions to his work in the mining industry. 

     Dr. Daniel Primm conducted an IME on May 12, 2017.  Dunn provided a history of ongoing low back pain, which occasionally radiates into his left leg.  In addition to Dunn’s more recent treatment records from Drs. Sharma and Breeding, Dr. Primm also was provided a 2008 lumbar x-ray, which was taken after a lifting accident. 

     Upon examination, Dr. Primm concluded Dunn’s lumbar and cervical spine are normal for his age.  Dr. Primm noted the small osteophyte at L4 and L5, but no other evidence of spondylolisthesis.  He concluded Dunn’s lumbar complaints are age-related and found no evidence of radiculopathy.  Dr. Primm found no work-related lumbar or cervical spine injury, and assessed a 0% impairment rating. 

     Dr. Primm also commented on Dr. Autry’s evaluation.  He noted Dr. Autry’s positive straight-leg raising exam was incomplete, and the results were inconsistent.  He interpreted Dr. Autry’s evaluation as normal.

     The ALJ summarized the evidence and concluded Dunn failed to establish causation:

After careful review of the evidence, this ALJ finds Plaintiff has not met his burden of proving work-related cumulative trauma to his low back and neck.  This ALJ finds Dr. Primm’s report convincing based upon his normal examination of the lumbar and cervical spine, and the x-rays that Dr. Primm stated looked completely normal for a man in this age range, and slightly better than average x-rays he has reviewed over the years.  Dr. Primm stated that there was a very small anterior osteophyte at L4 and L5, but otherwise, the disk spaces were well preserved and no evidence of spondylolisthesis at any level.  He stated that the x-rays showed no significant degenerative changes at any level, and very minimal slight narrowing at L5-S1.  Dr. Primm stated that Plaintiff had age-related mechanical low back pain symptoms and absolutely no evidence of lumbar radiculopathy.  Dr. Primm stated that there is nothing to suggest Plaintiff’s lumbar spine complaints are in any way related to, or aggravated by his past work.  He stated that plaintiff only has very mild or minimal age-related degenerative changes in the lumbar spine and cervical spine.


The ALJ considered Dr. Autry’s report in which he attributed Plaintiff’s low back and neck complaints to cumulative trauma and assessed a 0% impairment rating for the cervical spine and 6% for the lumbar spine.  The ALJ considered Dr. Sharma’s and Dr. Childers’ records and report.  However, Dr. Sharma released Plaintiff to full duty activities.  Dr. Sharma attributed Plaintiff’s complaints to work activities and injuries occurring at home.  The ALJ also acknowledges Plaintiff’s testimony and found him to be credible concerning his complaints and his description of his work activities.  However, the ALJ found Dr. Primm’s report to be more convincing concerning the medical question as to whether Plaintiff sustained cumulative trauma given the minimal degenerative findings in the lumbar and cervical spine x-rays.


Plaintiff filed the report of Dr. Childers who documented Plaintiff’s complaints of left hip and right wrist pain.  Dr. Childers noted that Plaintiff’s wrist pain began three months before the examination, but Plaintiff had been off work for over one year prior to the exam.  The ALJ concludes that there is insufficient evidence to conclude that Plaintiff sustained cumulative trauma to his right wrist or left hip.  Dr. Primm reviewed x-rays of both hips and the right wrist and found that the hip joints were normal, that the right hand and wrist x-rays were also normal.  Plaintiff presented no evidence of permanent impairment to either the right wrist or left hip.  Thus, the ALJ also finds that the Plaintiff has not met his burden to prove that he sustained cumulative trauma to his hip or wrist.


     Dunn filed a petition for reconsideration, which was denied.  On appeal, he argues the evidence compels a finding he suffered work-related cumulative trauma injuries to his low back, neck, right wrist and left hip.  He especially disagrees with the ALJ’s statement that he provided “insufficient evidence” to establish causation, as Dr. Autry’s medical opinion constitutes sufficient evidence.

     As the claimant in a workers’ compensation proceeding, Dunn bore the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was unsuccessful in that burden, the question on appeal is whether the evidence compels a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence that is so overwhelming, no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

     The ALJ provided a thorough review of the evidence and was most persuaded by Dr. Primm’s medical opinion.  Contrary to Dunn’s assertions, we find no indication the ALJ misinterpreted or failed to understand Dr. Autry’s medical report.  Her summary of his IME report is accurate and relays the pertinent conclusions of his evaluation. 

     Dunn claims the ALJ failed to understand the proof, as indicated by her statement that, “there is insufficient evidence to conclude that [Dunn] sustained cumulative trauma to his right wrist or left hip.” We do not interpret this statement as indication of a misunderstanding of the evidence.  The ALJ explained her reliance on Dr. Primm’s evaluation, which revealed no hip or wrist pathology.  She also cited the lack of an impairment rating for either body part.  We find no error.

     The ALJ’s summary and discussion evinces an understanding of and weighing of the proof.  She acknowledged Dr. Autry’s report, but was ultimately more persuaded by Dr. Primm’s opinion, which constitutes the requisite substantial evidence to support her conclusions.  Under such circumstances, this Board is not at liberty to disturb the award.

     As such, the October 30, 2018 Opinion, Award and Order and the December 6, 2017 Order on Reconsideration rendered by Hon. Christina D. Hajjar, Administrative Law Judge, are hereby AFFIRMED.    

          ALL CONCUR.










LONDON, KY 40741





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