No. 00-00513 and 00-00462 (2002). Gilbert v. Shamrock/James River Coal Co.

• Case Date: May 22, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-00513 and 00-00462 (2002). Gilbert v. Shamrock/James River Coal Co CHARLES GILBERT PETITIONER vs. SHAMROCK/JAMES RIVER COAL COMPANY, and HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: May 22, 2002CLAIM NO. 00-00513 and 00-00462APPEAL FROM HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. LOVAN, Chairman. Charles Gilbert ("Gilbert") appeals from the decision of Hon. Roger D. Riggs, Administrative Law Judge ("ALJ"), dismissing his claim for benefits alleging a work-related injury of February 15, 1999, allegedly arising out of his employment with Shamrock/James River Coal Company ("Shamrock"). This claim was initially filed in April of 2000 with an allegation of a repetitive trauma, wear and tear, cervical thoracic and lumbar spine injury becoming disabling February 15, 1999. Also filed at that time was a hearing loss claim based upon the same date of injury. Proof progressed and, apparently because of difficulty in obtaining certain proof, the injury claim was dismissed but the hearing loss claim proceeded to a decision. The hearing loss claim is not at issue herein. Thereafter, Gilbert refiled his injury claim in December of 2000. Proof was again presented and the ALJ in an Opinion dated November 3, 2001, rendered a decision in which he concluded Gilbert failed to give due and timely notice, failed to establish he had a work-related injury and failed to establish an impairment rating pursuant to the AMA Guides. Gilbert began working for Shamrock in July of 1981 and continued to work there until February 15, 1999, when he was laid off. He drew unemployment benefits for six months. He has reapplied for work with Shamrock and for other companies. Gilbert testified he first saw a physician for his "back" in June of 1999, seeing Dr. Lynn Fogleman who, in turn, referred him to Dr. John Gilbert, a neurosurgeon in Lexington. Gilbert further testified he had been experiencing problems with his neck and back for approximately five years but later acknowledged he told Dr. Rapier he had on and off problems for approximately ten years with worsening. Gilbert's job required him to regularly lift, bend and stoop. He indicated he never specifically told Shamrock he was having problems with...