BLACKJEWEL, LLC PETITIONER
v.
WILLARD HICKEY AND HON GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201991161, 201900827, 201900853
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 19, 2021
APPEAL
FROM HON. GRANT S. ROARK ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: LMS HON SHANE BRANHAM
COUNSEL FOR RESPONDENT: LMS HON RONALD COX
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
BORDERS, Member.
Blackjewel,
LLC (“Blackjewel”) appeals from the October 5,
2020 Opinion on Remand and the November 9, 2020 Order on
Petition for Reconsider rendered by Hon. Grant Roark,
Administrative Law Judge (“ALJ”). On appeal,
Blackjewel argues the ALJ erred in finding Willard Hickey
(“Hickey”) permanently totally disabled and in
failing to apportion any of the disability to preexisting
active impairment/disability. We disagree and affirm.
In a
February 17, 2020 Opinion, Award, and Order, the ALJ
determined Hickey suffered occupational hearing loss,
Category 1 Coal Workers’ Pneumoconiosis
(“CWP”), and a cervical spine injury resulting
from his employment as an underground shift foreman for
Blackjewel. The ALJ determined Hickey was permanently and
totally disabled solely as a result of his cervical spine
injury and awarded medical benefits for the CWP and hearing
loss claims.
Blackjewel
filed a Petition for Reconsideration on March 2, 2020
requesting the ALJ make additional findings concerning
pre-existing active impairment and permanent total
disability. In his Order on Petition for Reconsideration, the
ALJ determined Hickey retained a 5% impairment rating for his
cervical spine but otherwise overruled the remainder of the
Petition.
Blackjewel
appealed to this Board. We rendered an Opinion on July 2,
2020, Vacating and Remanding this claim to the ALJ. This
Board determined the ALJ performed the appropriate analysis
pursuant to City of Ashland v. Stumbo, 461 S.W.3d
392 (Ky. 2015), with the exception of determining the
functional impairment resulting solely from the effects of
the May 17, 2018 injury. In the Opinion, Award, and Order,
the ALJ failed to address the functional impairment to the
cervical spine solely resulting from the May 17, 2018
accident. The ALJ attempted to correct the omission in the
Order on Petition for Reconsideration. In that Order, the ALJ
correctly determined Dr. Christopher Stephens assigned a 3%
impairment rating as a result of the work incident, but
incorrectly determined Dr. David Muffly assigned a 5%
impairment rating as a result of the work incident. A review
of Dr. Muffly’s report clearly indicates he opined
Hickey retained a 10% impairment rating as a result of the
work incident, and that the 5% impairment rating he assessed
was for the pre-existing condition in Hickey’s cervical
spine prior to the occurrence of the May 17, 2018 accident.
This
Board determined the ALJ’s analysis was not supported
by substantial evidence as the impairment rating relied upon
was not solely attributable to the May 17, 2018 work injury.
Since the ALJ erred in relying upon the 5% impairment rating
assessed by Dr. Muffly in performing the analysis of whether
Hickey was permanently and totally disabled, the February 17,
2020 Opinion, Award, and Order and the Order dated March 19,
2020 were vacated. This claim was remanded for the ALJ to
perform the proper analysis mandated by City of Ashland
v. Stumbo, supra, and Ira Watson Dept.
Stores v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). We did
not express an opinion as to the outcome on remand, nor did
we address the remaining arguments on appeal as they were not
ripe for review.
In
response to the Board’s Opinion, the ALJ rendered the
following October 5, 2020 Opinion on Remand,
verbatim:
This matter comes before the Administrative Law Judge upon
remand from the Kentucky Workers Compensation Board. In its
July 2, 2020 decision, the Board vacated and remanded this
matter with instructions for the ALJ to identify which
cervical impairment rating of record, if any, supports the
determination of permanent, total disability. The Board
explained that in the ALJ’s order on reconsideration,
rendered on March 19, 2020, the ALJ indicated the award was
based on Dr. Muffly’s 5% cervical impairment rating
but, in fact, the 5% impairment rating Dr. Muffly assigned
was for plaintiff’s preexisting condition and not
...
