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...