No. 00-01344 (2002). Osborn v. Beechfork Processing Cougar Coal.
Case Date | May 08, 2002 |
Court | Kentucky |
Kentucky Workers Compensation
2002.
No. 00-01344 (2002).
Osborn v. Beechfork Processing Cougar Coal
DANNY OSBORN
PETITIONER vs. BEECHFORK PROCESSING COUGAR COAL and HON. DONNA TERRY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION ENTERED:
May 8, 2002CLAIM NOS. 00-01344, 99-01317 and 99-93288APPEAL FROM HON. DONNA TERRY, ADMINISTRATIVE LAW JUDGE
AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.GARDNER, Member. Danny Osborn
appeals from an opinion, award and order rendered by Hon. Donna H. Terry,
Administrative Law Judge (ALJ), wherein Osborn was found to be 10%
occupationally disabled due to a work-related back injury sustained in the
employ of Cougar Coal (Cougar). The ALJ dismissed Osborn's occupational hearing
loss claim against Beechfork Processing (Beechfork). On appeal, Osborn argues
the ALJ committed reversible error in allowing the submission of a university
evaluator's report not filed within the fifteen-day statutory period. He
further contends the ALJ should have applied the 1.5 multiplier pursuant to KRS
342.730(1)(c)1. and erred in allowing a credit for salary continuation
benefits. Osborn sought payment of benefits against Cougar for a
work-related back injury occurring on January 6, 1999. He also filed claims
against Beechfork for cumulative trauma to his neck and upper extremities and
for occupational hearing loss. A claim for benefits due to a psychiatric
condition was also sought. Numerous issues were presented before the ALJ
concerning these claims, including statute of limitations issues. The ALJ
ultimately determined that Osborn was entitled to a 10% impairment rating for
his low back injury sustained in the employ of Cougar and dismissed all other
claims. The issues raised on appeal do not require a review of the entire
record and our review of the facts will be limited.
Osborn, born June 15, 1959, has a high school education, a
pilot's license, is certified as an electrician and holds certifications as
assistant foreman and foreman. In 1991, Osborn began working for Cougar, where
he worked until July 1999 when the mine was shut down and he was transferred to
Beechfork. He continued to work for Beechfork until August 4, 2000 as a section
foreman.
Osborn sustained an injury to his low back in the course of his
employment with Cougar on January 6, 1999. He was loosening a bolt using a
six-foot bar in a socket when he experienced a burning pain in his low back.
According to Osborn, he was allowed to work for the next two weeks without
performing any tasks while he sought chiropractic treatment for his ongoing
back pain. When he was not able to obtain relief from the chiropractor, he saw
his family physician, Dr. Don Bryson, who took him off work until March 15,
1999. He then returned to Cougar as a section foreman until the mine closed and
he was transferred to Beechfork as section foreman. He continued to work at
Beechfork until August 2000. According to Osborn, he had to stop working
because he could no longer do the work because of his physical condition.
At his hearing, Osborn testified he continues to experience pain
in his back, as well as his upper extremities and neck. He testified concerning
his psychiatric condition and that he had applied for Social Security benefits
based on numerous health conditions including carpal tunnel syndrome, neck and
back problems, congestive heart failure, hypertension, bladder cancer, hearing
loss and knee surgery. He did not believe he could return to gainful...
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