Workers’
Compensation Board
OPINION ENTERED: October 26, 2018
CLAIM
NO. 201701756 & 201602747
HOPKINS
COUNTY COAL LLC PETITIONER
VS. APPEAL FROM HON. ROLAND CASE,
ADMINISTRATIVE
LAW JUDGE
CHARLES
MICHAEL SYERS
and
HON. ROLAND CASE,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION & ORDER
PLACING APPEAL IN ABEYANCE
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
STIVERS, Member. Hopkins County Coal (“Hopkins County”) appeals from
the June 4, 2018, Opinion, Award, and Order and the June 19, 2018, Order of
Hon. Roland Case, Administrative Law Judge (“ALJ”).[1] The
ALJ awarded Charles Michael Syers (“Syers”) permanent partial disability (“PPD”) benefits for
his cumulative trauma lumbar injury claim, retraining incentive (“RIB”)
benefits for his coal workers’ pneumoconiosis claim, and medical benefits. The
ALJ dismissed Syers’ work-related cumulative trauma
injury claim with respect to his cervical spine and knees. Syers’
award was subject to the limitations set forth in KRS 342.730(4) “as amended in
1994,” and interest was assessed at the rate of 12% on all unpaid benefits due
through June 28, 2017, and 6% on unpaid benefits due on or after June 29, 2017.
On appeal, Hopkins
County asserts the ALJ erred by subjecting Syers’ PPD
benefits to the 1994 version of KRS 342.730(4). Instead, the ALJ should have
limited his benefits pursuant to the recently amended version of KRS
342.730(4). Hopkins County also asserts the ALJ should have assessed 6%
interest on all past due benefits.
The Form 101 for Claim
No. 2017-01756, filed October 13, 2017, alleges Syers
sustained work-related cumulative trauma injuries to his knees, elbows, back,
feet, and ankles on July 3, 2014.[2]
The Form 102 for Claim
No. 2016-02747, filed December 12, 2016, alleges Syers
sustained work-related coal workers’ pneumoconiosis, with a last date of
exposure on July 3, 2014. By order dated July 2, 2017, the claims were
consolidated.
In the March 28, 2018,
Benefit Review Conference (“BRC”) Order and Memorandum, the following contested
issues were listed: date of last exposure and physical capacity to return to
the type of work performed at time of injury. Under “other contested matters”
is the following: “KRS 342.732,” “parker [sic] decision,” and “HB 2.”
In the June 4, 2018,
Opinion, Award, and Order, the ALJ set forth the following findings of fact and
conclusions of law:
The issue of benefits under KRS 342.730 involves the
determination of whether the plaintiff has a permanent disability and if so
whether it is total or partial in nature. In this case the ALJ finds the
plaintiff is not totally disabled. The plaintiff worked until he voluntarily
retired. He is not under any treatment for any of his alleged conditions. He is
obviously not totally disabled.
The plaintiff’s disability must be considered partial in
nature. This begins with the determination of the appropriate impairment rating
under the AMA Guides. Jones v. Brash-Barry
General Contractors, 189 SW3d 149
(Ky. App. 2006). In this case Dr. Madden assigned a 8%
impairment to the cervical spine and 6% to the lumbar spine with an additional
7% for arthritis of the knees for a combined 19%% [sic] whole person
impairment. Dr. Madden placed the plaintiff at maximum medical improvement as
of February 3, 2018. Dr. Lyon opined the plaintiff has no permanent impairment
resulting from cumulative trauma attributing his complaints to prior specific
injuries occurring in 1999 and 2000 and indicated the plaintiff had long ago
reached maximum medical improvement in regards to those injuries.
The
ALJ is not persuaded that the plaintiff sustained cumulative trauma to his
knees or cervical area. The plaintiff had a specific injury to the knee. The
cervical condition was not listed in the original application or in Dr.
Rushing’s report. The ALJ adopts the opinion of Dr. Lyon that the plaintiff did
not sustain cumulative trauma to the cervical spine or knees.
The
ALJ finds the plaintiff to be a very credible witness who was obviously an
excellent worker with a long work history. Consistent with the testimony of the
plaintiff, the ALJ is persuaded by the opinion of Dr. Madden that the plaintiff
sustained a 6% impairment to the lumbar area.
The
ALJ has reviewed the medical records along with the arguments of the parties
presented in their briefs as well as the AMA Guides. The ALJ feels the 6% is an
adequate representation of the plaintiff’s impairment based on the AMA Guides.
In
this case the ALJ finds Dr. Madden correctly indicated the plaintiff would have
6% impairment which carries a multiplication factor of .85 for a 5.1% permanent
partial disability under KRS 342.730(1)(b).
However,
the analysis does not end there as the ALJ must also determine whether the
provisions of KRS 342.730(1)(c)1 or 2 apply. Subparagraph one applies when the
plaintiff lacks the physical capacity to return to the type of work he was
performing at the time of his injury and has not returned to earning same or
greater wages. If the plaintiff is earning same or greater wages a
determination must be made as to whether the plaintiff will be able to continue
doing so for the indefinite future. If employment is found to be not likely
then the three multiplier would apply. See Fawbush vs Gwynn, 103 SW3d 5 (KY 2003).
In
this particular case, the issue is whether or not the
plaintiff retains the physical capacity to return to the type of work performed
at the time of the plaintiff’s injuries. The plaintiff worked until he
voluntarily retired and is under no treatment for his alleged injuries.
Therefore, the plaintiff will not be entitled to the three factor.
Therefore,
based on the plaintiff’s credible testimony corroborated by the opinion of Dr.
Madden it is found the plaintiff will be entitled to 6% impairment rating
multiplied by .85 multiplied by 1 multiplied by $576.80 or the sum of $294.168
for a period of 425 weeks. The appropriate award will be entered.
COAL WORKER’S
PNEUMOCONIOSIS CLAIM
Although the report of Dr. Chavda is not entitled to presumptive weight pursuant to
KRS 342.315(2) since it was not performed by a University Evaluator, the Administrative Law Judge finds the report of Dr. Chavda to be the most persuasive. Dr. Chavda
was independently selected by the Commissioner of the Department of Workers’
Claims for his evaluation. Dr. Baker was selected by the plaintiff with Dr. Broudy selected by the employer.
The
Administrative Law Judge has considered all of the evidence in accordance with Magic
Coal v. Fox, 19 SW 3d 88 (Ky. 2000). The Administrative Law Judge chooses
to rely on and is persuaded by the opinion of Dr. Chavda
who was independently selected by the Commissioner of the Department of
Workers’ Claims and found the plaintiff suffers from coal workers’ pneumoconiosis
category 1/2 with no large opacities and no plural disease. Dr. Chavda opined the plaintiff has no pulmonary impairment
resulting from inhalation of coal dust.
Pursuant
to KRS 342.732(2), the Administrative Law Judge must use either the highest FVC
value or highest FEV1 value determined from the totality of all such spirometric testing. See Watkins v. Ampak
Mining Inc., 834 SW2d 699 (Ky App. 1992). Additionally, pursuant to Fields
v. Carbon Coal Company, 920 SW2d 880 (Ky App. 1996), the Administrative Law
Judge does not have the discretion to choose between pre-bronchodilator or
post-bronchodilator testing, but must accept the highest. The Administrative
Law Judge can rely on either the highest FVC or highest FEV1.
Pulmonary
function studies from Dr. Broudy revealed
pre-bronchodilator FVC functions of 103% of predicted values with FEV1 function
of 100% of predicted value and post-bronchodilator FVC functions of 101% of
predicted values with FEV1 function of 101% of predicted value. Pulmonary function
studies from Dr. Chavda revealed pre-bronchodilator
FVC functions of 104% of predicted values with FEV1 function of 111% of
predicted value.
Therefore,
consistent with the above, the Administrative Law Judge must accept the
pre-bronchodilator study performed by Dr. Chavda
indicating FVC function of 104% and a FEV1 function of 111% of predicted
values. Dr. Chavda found the pulmonary impairment to
be due to exposure to coal dust.
Since the plaintiff’s FVC and FEV1 functions
were greater than 80%, as found by Dr. Chavda and Dr.
Broudy the plaintiff will only be entitled to a RIB
award pursuant to KRS 342.732. However, since the plaintiff was 63 years of age
at the time of his last exposure, he does have the option pursuant to KRS
342.732(1)(a)7 to elect to receive, in lieu of Retraining Incentive Benefits, a
25% disability rating from the date of last exposure July 3, 2014 until age 65.
In its petition for
reconsideration, Hopkins County contested the ALJ’s calculation of PPD benefits
and also asserted the same arguments it now makes on
appeal. In the June 19, 2018, order, the
ALJ corrected the award of PPD benefits, and overruled Hopkins County’s
petition for reconsideration concerning the interest rate issue. The ALJ failed to address Hopkins County’s
argument regarding applicability of House Bill 2. However, we note the ALJ’s
order ruling on the petition for reconsideration was entered prior to the
effective date of House Bill 2, July 14, 2018.
In 2018, the Kentucky General Assembly passed House Bill 2 which, in
part, amended KRS 342.730(4) so as to terminate income benefits “as of the date
upon which the employee reached the age of seventy (70) or four (4) years after
the employee’s injury or last exposure, whichever last occurs.” This bill was
signed by the Governor in March 30, 2018, and became
effective July 14, 2018.
The Kentucky Court of Appeals recently held
in Lafarge Holcim v. James Swinford, Claim No.
WC 2016-90245, 2018-CA-000414-WC (rendered September 7, 2018) (Designated To Be Published), that the limitations contained in this
recently enacted version of KRS 342.730(4) do not have retroactive application.
Since the retroactive effect of the newly enacted version of KRS 342.730(4) is
one of the issues raised in this appeal and Lafarge Holcim v. James Swinford, supra, is not final;
IT IS
HEREBY ORDERED AND ADJUDGED the above-styled appeal is removed from
submission and PLACED IN ABEYANCE
pending the finality of Lafarge
Holcim v. James Swinford, supra. The
parties shall file Status Reports within 120 days from the date of this Order.
The time for the further filing of briefs is suspended. The parties shall
notify this Board when a decision in Lafarge Holcim v. James Swinford, supra, is final.
ALL CONCUR.
____________________________________
FRANKLIN A.
STIVERS, MEMBER
WORKERS’ COMPENSATION BOARD
DISTRIBUTION: METHOD
COUNSEL FOR PETITIONER:
HON
BRANDY B HASSMAN LMS
333
W VINE ST STE 300
LEXINGTON
KY 40507
COUNSEL FOR RESPONDENT:
HON
MCKINNLEY MORGAN LMS
921
S MAIN ST
LONDON
KY 40741
COUNSEL FOR CWP FUND:
HON
MARGARET P DE MOVELLAN LMS
C/O
KEMI
25
W MAIN ST STE 900
LEXINGTON
KY 40507
ADMINISTRATIVE LAW JUDGE:
HON
ROLAND CASE LMS
657
CHAMBERLIN AVE
FRANKFORT
KY 40601
[1] It appears Hopkins County is a
subsidiary of Alliance Coal, and most pleadings in the litigation name Alliance
Coal as the defendant/employer and not Hopkins County.
[2] At the March 28, 2018, Hearing, in lieu of a separate motion to amend, Syers amended his Form 101 to include a work-related cumulative trauma injury to his neck and withdrew all injury claims except for back, neck, and bilateral knees.