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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: May 4, 2018
CLAIM NO. 201700751
STAR MINE SERVICES PETITIONER
VS. APPEAL FROM HON. CHRISTINA
D. HAJJAR,
ADMINISTRATIVE LAW JUDGE
KENNETH MARKHAM JR.
and HON. CHRISTINA D. HAJJAR,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Star Mine Services (“Star Mine”) seeks review of the November 21, 2017,
Opinion, Award, and Order of Hon. Christina D. Hajjar, Administrative Law Judge
(“ALJ”) finding Kenneth Markham (“Markham”) sustained cumulative trauma
injuries to his hips and low back while in the employ of Star Mine. The ALJ
awarded permanent partial disability (“PPD”) benefits and medical benefits.
Star Mine also appeals from the January 2, 2018, Order overruling its petition
for reconsideration.
On appeal, Star Mine challenges the ALJ’s decision on two
grounds. First, it asserts Markham sustained cumulative trauma injuries to his
hips and low back while in the employ of Thomas Brothers Farms (“Thomas
Brothers”) and not while in the employ of Star Mine. Alternatively, it argues the
impairment ratings for Markham’s hips and low back pre-existed his employment
with Star Mine.
Markham’s Form 101 alleges he sustained cumulative trauma
injuries to multiple body parts on May 1, 2015.
The evidence implicated in this
appeal consists of Markham’s June 16, 2017, deposition, the September 20, 2017,
hearing testimony, the medical questionnaire completed by Dr. James Rushing on
March 18, 2017, the July 24, 2017, medical report of Dr. Stacie Grossfeld, and
the medical report/Form 107 completed by Dr. Stephen Autry on May 25, 2017.
During his deposition, Markham testified he was working for
Thomas Brothers as a general laborer. He began working for Thomas Brothers
after Star Mine laid him off in May 2015. He had an eight to ten hour workday
at Thomas Brothers; however, during harvesting he worked additional hours and
on Saturdays. Markham operated equipment and performed mechanic work for Thomas
Brothers. He drove and repaired tractors, combines, and grain trucks. Markham
earned $13.00 an hour.
Markham testified he began working
for Star Mine on February 4, 2015.[1]
During the three months he was employed by Star Mine, Markham worked a month
and a half at the Dodge Hill (“Dodge Hill”) mine performing reclaiming and the
remainder of the time at the Highland (“Highland”) mine. At Dodge Hill, Markham
“pulled equipment out and got them ready to ship out.” He operated a scoop to
haul the equipment out of the mine. He also “banded up” equipment so it could
be loaded on flat beds. He estimated the heaviest item he lifted at Dodge Hill
weighed between 60 and 70 pounds. At Highland, his sole task was to reclaim the
“CO lines.” This entailed using a winder to wind cable on a spool. After
winding the cable, he removed the spool from the winder and placed another
spool on the machine. Markham estimated the spool with the cable weighed
between 35 and 40 pounds. He was able to perform this work as long as he was
not required to do a lot of walking.
Markham acknowledged his left hip problem pre-existed
his employment with Star Mine. Markham worked for Patriot Coal (“Patriot”)
approximately 13.5 years. He estimated his problems became noticeable in
approximately 2012 or 2013 while working for Patriot.[2]
Q: What happened to your left hip, sir?
A: I guess just when I was working at
Dodge Hill, riding the low track in and out for ten years, twelve years --
When his left hip problem surfaced, Markham
went to Dr. Kelly Cole who diagnosed arthritis of the left hip and prescribed
medication for pain. Markham was unable to remember the medication Dr. Cole
prescribed. Markham believed the purpose of the medication was to help with the
“cartridge [sic] in the hip.” Dr. Cole did not impose any restrictions on his
work activities nor advise him to be careful. Markham did not report an injury
to Patriot.
Markham testified his left hip
condition did not affect his ability to perform his work at Star Mine. He
testified he can perform his farm work as long as he does not overdo himself.
In addition to experiencing a
cumulative trauma injury to his left hip, Markham also experienced pain in his
low back but he was not sure if it was due to the hip problem. The low back
pain on his left side began three or four years before he worked for Star Mine
and limits what he can do.
Markham specifically identified his
cumulative trauma injuries as being to his left hip and left low back. However,
approximately two months prior to his deposition, in April 2007, he developed
numbness in his hands.
In performing his farm duties at
Thomas Brothers, Markham’s tasks include “lifting bags of corn and stuff in
order to load them into planters.” Although he tried not to bend a lot, he was
required to bend to pick up little items. He engaged in pushing when putting
wheels and other items on various pieces of equipment. He engaged in pulling,
pushing, and stooping when fixing equipment. He testified 75% of his work
pertained to fixing equipment; however, 50% of his time was spent operating
equipment. When informed the percentages equaled 125%, he explained that operating
equipment also entailed repairing it when it breaks down. He denied having any
additional injuries to his hip and back, explaining:
Q: Have you had any additional injuries
to your hip or your back since you started working for Thomas Brothers farm?
A: No, no, I haven’t because they know
I haven’t had a problem. So a lot of the stuff they’ll try to work around me.
You know, they work with me on it because they need my knowledge to keep stuff
going.
At the hearing, Markham testified he began working for
Thomas Brothers in October 2015 and was laid off in June 2017. Markham outlined
the extent to which Thomas Brothers accommodated his physical problems.
Q: Kenny, you can’t say what the owners
of Thomas Brothers told you, you can just describe any accommodations you were
given –
A: Okay.
Q: -- on the job.
A: They – anything hard I had to pick
up, the heaviest stuff, they would help with. And they, you know, knew, you
know, that I had – had a hip problem, so they –
. . .
Q: Kenny, how did the work you
performed for Thomas Brothers compare to the work you performed for Star Mine
services?
A: Pretty much, you know, just the same
in – in a lot of terms. But, you know, I just didn’t have the low coal
situation like I did when I worked for Star.
Markham again described his work at
Dodge Hill. His work entailed working underground in coal approximately 52
inches high. In pulling out equipment at Dodge Hill, he loaded framing and
other items on wagons inside the mine and pulled it outside where it was
unloaded. While in the mines, he constantly worked bent over. He estimated the
equipment he loaded weighed between 100 to 120 pounds. He also estimated he
loaded 400 to 500 items a day. Every task Markham performed in the mine
entailed twisting around because there was no place to stand up due to the low
ceiling.
While working at Patriot, he was
required to work as a roof bolter. As such, he loaded roof bolts twice a day.
Because he worked on his knees, he constantly got up and down to get pins. He
then drilled holes and put the pins in the roof. He also ran a scoop for a
short period of time. He also loaded and hauled supplies into the mine. After
unloading, he hauled trash and other items out of the mine. He estimated the
items hauled into the mine weighed between 5 and 80 pounds. Every day he hauled
something into the mine that weighed 25 pounds or more. He loaded items outside
the mine approximately 15 to 20 times a day. All of his jobs in the underground
mine required working bent over.
Markham continued to experience hip and back problems while
working for Star Mine.
Q: After working for Star Mine
Services, did you notice any pain in your body?
A: I had it beforehand. I mean, I just
– I worked through it, you know. I just needed a job so I just done what I had
to do.
Q: Where would you notice pain at in
your body?
A: In my hips and lower extremity.
The pain in his left hip has
worsened. Prior to working in the coal mines, Markham was capable of performing
any task. He believes he is unable to work in the coal mines. He estimated he
worked for Thomas Brothers for approximately a year and a half during which
time he did not do much lifting. He denied having a specific hip injury.
Markham denied the work he performed at Thomas Brothers was easier than the
worked he performed at Star Mine explaining as follows:
A: Not really. I mean, it’s like every
job. You’ve got easy job and then some job not so easy. The worst job I had working
with them was picking up a stump, picking up chunks and stuff, reclaim. We had
to pick up woods and everything, having to bend over really killed me, you
know, picking up stuff.
In the November 21, 2017, decision,
the ALJ found Markham sustained cumulative trauma injuries to his low back and
hips as a result of his work in the coal mines reasoning as follows:
The ALJ found Plaintiff’s testimony to be
credible and finds that based upon the report of Dr. Autry and Dr. Grossfeld,
as well as Plaintiff’s testimony, that Plaintiff sustained cumulative trauma to
his low back and hips as a result of his work in the coal mines. Plaintiff
testified concerning the physical activities he performed while working for
Star Mine. Plaintiff described having to go underground and bending over to
work with a coal seam 52 inches high. He had to bend over and load 400 to 500
pieces of equipment, weighing up to 75 to 120 pounds per day and place it on
trailers, and having to twist while being underground due to the low coal.
Despite Plaintiff’s symptoms, he continued to work underground while working
for Star Mine, while being exposed to the same conditions of having to bend,
stoop, and twist under a low ceiling.
Although Dr. Grossfeld stated that
Plaintiff did not report any symptoms while working at Star Mine, the history
portion of her report states that he did not report any work-related injuries
from February 2015 to May 1, 2015, and that his longstanding history of low
back and hip pain had started years ago while working at Patriot Mine. However,
she also stated that he reported that his symptoms were gradual in onset.
Although she stated that he did not have any increased symptomology while working
at Star Mine, Plaintiff testified he had hip and back pain for the past four
years performing coal mine work. The ALJ finds Plaintiff’s testimony credible
that he continued to have symptoms while working in the mines, including while
working for Star Mine for just three months, and that the nature of his work
with Star Mine was similar to the work performed for Patriot.
Thus, while
Defendant asserts that Plaintiff had no additional harmful change while working
at Star Mine, the ALJ finds that his work at Star Mine contributed to the
cumulative trauma condition, and thus, Star Mine, as the last employer, is
liable pursuant to Hale, supra.
Defendant argues that if Plaintiff
sustained cumulative trauma while working at Star Mine, Thomas Brothers should
be the responsible employer, as he continued to perform the same type of work
while working for this subsequent employer. However, Plaintiff testified that
his job duties at Thomas Brothers were “the same in a lot of terms”, but he did
not have the low coal situation like he had when he worked for Star Mine.
Plaintiff explained that while working in the mines, he had to twist while
doing almost anything because he could [sic] stand up straight. Further, Dr.
Autry specifically attributed Plaintiff’s cumulative trauma to his coal mine
work, which included a lot of walking, bending, stooping and twisting during
his employment in the coal mines. There has been no medical evidence
specifically relating his cumulative trauma condition to his subsequent
employment. For these reasons, the ALJ finds that Defendant is the responsible
employer.
Relying upon the opinion of Dr. Autry
and rejecting the 5% impairment rating of Dr. Grossfeld for the low back, the
ALJ found Markham did not incur a permanent impairment rating for the low back
injury. The ALJ found significant Markham’s testimony that the primary symptoms
were to his hip with limited symptoms in his low back. After noting Dr. Autry
had assessed a 2% impairment rating for the hips which he indicated could
change if Markham had radiographs of the hips, the ALJ accepted the impairment
rating of Dr. Grossfeld based on the following:
Dr.
Grossfeld had the radiographs,
and opined that Plaintiff had advanced osteoarthritis grade four changes in the
lateral view of the right and left hip. She assessed a left hip impairment of
2% and right hip impairment of 6% whole person for a total 8% combined
impairment. Given that Dr. Grossfeld had the x-rays to review, the ALJ relies
upon Dr. Grossfeld to determine Plaintiff has an 8% impairment rating based
upon her impairment rating of his hips. …[3]
Concerning a carve out for an
impairment rating due to a pre-existing active condition, the ALJ found
Markham’s onset of symptoms had gradually developed over the last four years
while working in the coal mines which included his work for Star Mine. Thus, as
the last employer with whom Markham was injuriously exposed, Star Mine bore the
entire responsibility for the cumulative trauma injuries and a carve out for a
pre-existing active condition was not appropriate.
Star Mine filed a petition for
reconsideration in which it pointed out Dr. Grossfeld believed Markham’s condition
had developed over time and he had a prior active condition meriting an
impairment rating before working at Star Mine with no advancement of symptoms
during his employment with Star Mine. Since Dr. Grossfeld believed the entire
impairment rating for the hips pre-existed his employment at Star Mine, it
argued the impairment rating she assessed cannot be the basis of an award
against Star Mine.
Star Mine also contended there is no
evidence Markham was disabled when last employed by Star Mine since he was
capable of doing farm work which involved the same type of repetitive lifting,
bending, and stooping activities as well as walking and fixing equipment. Since
this type of activity is capable of causing cumulative trauma, Markham’s
subsequent employment with Thomas Brothers contributed to the cumulative trauma
condition. Therefore, Thomas Brothers, as the last employer exposing Markham to
activities causing cumulative trauma, is liable for the injury. Finally, Star
Mine requested the ALJ reconsider the award of medical benefits for the hip and
back based on its argument put forth in its petition for reconsideration.
By Order dated January 2, 2018, the
ALJ overruled Star Mine’s petition for reconsideration as an impermissible re-argument
of the merits of the claim.
On appeal, Star Mine first contends
the ALJ’s statement there is no evidence establishing a cumulative trauma injury
occurred while working for Thomas Brothers is clearly erroneous. It notes that,
in finding Star Mine liable for the injuries, the ALJ relied upon the fact
Markham did not engage in the constant twisting and bending required while
working in the mines when he worked for Thomas Brothers, Dr. Autry’s opinion Markham’s
cumulative trauma injuries are due to the coal mine work, and the lack of
medical evidence linking Markham’s cumulative trauma condition to his
subsequent employment. Star Mine references Markham’s testimony that his work
at Thomas Brothers required bending at all times and the pain “really killed
him.” Star Mine emphasizes Dr. Autry’s causation opinion regarding the presence
of a cumulative trauma is not limited to Markham’s employment in the coal mines
as he stated as follows:
The plaintiff’s history and
job description correlate with the specific diagnoses. The plaintiff had a job
as a mechanic, which required bending, stopping, lifting, squatting, kneeling,
and working in awkward positions over the course of time which he was a
mechanic as well as working as a general laborer and in the mines.
Star Mine maintains Dr. Autry’s
report establishes Markham’s latest employment aroused dormant and
non-disabling conditions, and Dr. Rushing believed Markham’s work at Thomas
Brothers contributed to the cumulative trauma injuries.
Alternatively, Star Mine suggests the
ALJ did not clearly understand the opinions of Drs. Autry and Rushing as both
indicated Markham’s employment with Thomas Brothers contributed to his alleged
cumulative trauma injuries. That being the case, the claim should be remanded
for further findings and analysis.
Star Mine next asserts the record
compels a finding all of Markham’s impairment pre-existed his employment with
Star Mine. Accordingly, the award should be vacated and the claim remanded for
a finding the 8% impairment ratings for the hips are attributable to conditions
which were active and pre-dated Markham’s employment with Star Mine.
Markham, as the claimant in a workers’
compensation proceeding, had the burden of proving each of the essential
elements of his cause of action, including causation. 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.
We do not agree with Star Mine’s first
argument asserting the record compels a finding Markham’s cumulative trauma
injuries manifested during his employment with Thomas Brothers. However, we agree
with Star Mine’s alternative argument in which it asserts the award must be
vacated and the claim remanded for additional findings based on a correct
understanding of the medical evidence.
All parties to a workers’ compensation
dispute are entitled to findings of fact based upon a correct understanding of
the evidence submitted during adjudication of the claim. Where it is
demonstrated the fact-finder may have had an erroneous understanding of
relevant evidence in reaching a decision, the courts have authorized remand to
the ALJ for further findings. See Cook
v. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985); Whitaker v.
Peabody Coal Company, 788 S.W.2d 269 (Ky. 1990).
In finding Markham sustained cumulative trauma
injuries to his low back and hips which manifested during his employment with
Star Mine, the ALJ relied in part upon Markham’s description of the repetitive
work he performed while working for Star Mine. The ALJ also found reliable Markham’s
testimony comparing the work he performed at Star Mine with the work he
performed while at Thomas Brothers. The ALJ concluded the type of work at Star
Mine was different than his work at Thomas Brothers. She specifically
referenced the fact Markham was required to constantly twist while being
underground due to the low coal. The ALJ also found convincing Markham’s
testimony that his underground work for Star Mine was similar to his work at
Patriot, as he was “exposed to the same conditions of having to bend, stoop,
and twist under a low ceiling.” The ALJ rejected Star Mine’s assertion Thomas
Brothers should be the responsible employer because Markham continued to
perform the same type of work for Thomas Brothers. Instead, the ALJ concluded that,
while Markham worked for Thomas Brothers, he was not subjected to the same
physical demands required by the low coal situation at Star Mine. The ALJ also
relied upon Dr. Autry’s opinion that Markham’s work injuries are “consequences
of many years in mining.” Markham’s testimony and the opinion of Dr. Autry constitutes
substantial evidence supporting a finding the cumulative trauma injuries to
Markham’s hips and low back did not manifest while working for Thomas Brothers.
However, we believe the ALJ’s statement “there
has been no medical evidence specifically relating Markham’s cumulative trauma
condition to his subsequent employment” demonstrates an erroneous understanding
of the medical evidence. This misunderstanding was critical to the ALJ’s determination
that Markham’s cumulative trauma injuries were attributable to Markham’s
employment with Star Mine. In fact, the ALJ stated this alleged lack of medical
evidence was one of the reasons she found “Star Mine is the responsible
employer.”
Dr. Autry’s May 25, 2017, Form 107 was
completed when Markham was still working for Thomas Brothers. We acknowledge
the first paragraph under the heading “Explanation of Causal Relationship,”
unequivocally establishes Markham’s injuries were a consequence of many years
of work in coal mining. However, this is directly contradicted by the last
paragraph in Dr. Autry’s report, also under this same heading, wherein he
stated as follows:
This, taken in conjunction
with the other problems detailed above, represent conditions in which the
symptoms have been asymptomatic, dormant, and non-disabling but have been
aroused into a disabling condition by the plaintiff’s latest employment.
Because at the time Dr. Autry
completed his questionnaire, Markham’s “latest employment” was with Thomas
Brothers, the above paragraph indeed implicates Markham’s work with Thomas Brothers
as a contributing factor to his cumulative trauma injuries.
Additionally, the medical
questionnaire completed by Dr. Rushing on March 18, 2017, indicates as follows:
1. Do you believe that his
present medical issues to his hips, lower back, and hands are caused, either
wholly or in part, by his job activities? Yes.
2. Do you believe that
continuation in his job duties will continue to have adverse health
consequences? Yes.
When Dr. Rushing filled out the
questionnaire, Markham was working for Thomas Brothers. However, we do note in
the documents attached to Dr. Rushing’s questionnaire there is no mention of
Markham’s employment with Thomas Brothers. The only history Dr. Rushing
received was that of working in the coal mines.
The ALJ’s comments demonstrate she did not
have an accurate understanding of the relevant medical evidence. Consequently,
the claim must be remanded to the ALJ for additional findings and entry of an
opinion based upon an accurate understanding of the medical evidence. There is substantial evidence which
would support a finding the cumulative trauma injuries manifested during Markham’s
employment with Star Mine. There is also substantial evidence which would
support a finding Markham’s cumulative trauma symptomology continued and manifested
during his employment with Thomas Brothers. As we have no fact-finding
authority, the ALJ must determine the evidence upon which she will rely in
resolving when the cumulative trauma injuries to Markham’s hips and low back
finally manifested. If the ALJ determines the cumulative trauma injuries were
not caused by Markham’s employment with Thomas Brothers then Star Mine is
liable.
As spelled out in Hale v. CDR
Operations, Inc., 474 S.W.3d 129, 138 (Ky. 2015) where the last employment
results in a harmful change in the human organism due to cumulative trauma,
that employer is liable for the entire impairment attributable to the
cumulative trauma. Specifically, the Kentucky Supreme Court set out the
following unequivocal mandates:
An employee who sustains a
harmful change in his human organism due to cumulative trauma over many years
working for the same employer is entitled to compensation to the full extent of
his resultant disability. But, someone like Hale would not be fully compensated,
simply because he worked for multiple employers. We can discern no basis for
such a distinction. “Although both the employee and the employer have rights
under the [Workers' Compensation] Act, the primary purpose of the law is to aid
injured ... workers.” Zurich Am. Ins. Co. v. Brierly, 936 S.W.2d 561, 563 (Ky.1996). Nothing in KRS Chapter 342
limits the liability of the employer, in whose employ the date of manifestation
occurred, to the percentage of the claimant's work-life spent there. Southern Kentucky Concrete has no application under
the current statutory scheme.
We find no merit in Star Mine’s
second argument asserting Markham’s impairment rating pre-existed his employment
with Star Mine. In her opinion, the ALJ addressed Dr. Grossfeld’s opinion the
8% impairment rating assessed for Markham’s hips and low back were attributable
to Markham’s employment with Patriot. After weighing the opinions of Drs.
Grossfeld and Autry and Markham’s testimony, the ALJ choose to accept Dr.
Autry’s opinion that the cumulative trauma injuries are “consequences of many
years in coal mining.” As is her prerogative, the ALJ also chose to rely upon Markham’s
testimony he worked in coal mining for over 14 years and experienced
work-related pain in multiple areas of his body, including his low back and
hips, while working for Star Mine. The ALJ enjoyed the discretion to rely upon
the opinions of Dr. Autry and Markham’s testimony in concluding Markham’s cumulative
trauma injuries did not manifest during Markham’s employment with Patriot. We
have no authority to infringe upon her discretionary authority. That being the
case, we reject Star Mine’s assertion substantial evidence does not support the
ALJ’s finding Markham’s cumulative trauma injuries extended into his employment
at Star Mine. Thus, we affirm the ALJ’s determination Markham’s cumulative
trauma injuries did not manifest during his employment with Patriot but extended
into his employment with Star Mine.
Accordingly, that portion of the November
21, 2017, Opinion, Award, and Order and the January 2, 2018, Order overruling
the petition for reconsideration finding Markham’s cumulative trauma injuries
did not manifest while employed by Patriot and the cumulative trauma injuries
extended into his employment with Star Mine is AFFIRMED. The ALJ’s determination the cumulative traumas ceased
with Markham’s employment at Star Mine and the finding Star Mine is liable for
the cumulative trauma injuries to Markham’s hips and lower back and the award
of income and medical benefits are VACATED.
This claim is REMANDED to the ALJ
for a determination, based upon a proper understanding of the medical evidence,
of whether the cumulative trauma injuries to Markham’s hips and low back
manifested while in the employment of Star Mine or Thomas Brothers.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON GUILLERMO CARLOS
444 W SECOND ST
LEXINGTON KY 40507
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON CHRISTINA D HAJJAR
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] On his Form 104, Markham’s employment
history states he began working for Star Mine on February 14, 2015.
[2] Markham’s employment history reflects he
worked for Patriot Coal from March 2001 to February 4, 2015.
[3] Even though Markham testified he experienced
a cumulative trauma left hip injury, Star Mine does not challenge the finding
of cumulative trauma right hip injury and the 6% impairment rating attributable
to it.
