No. 00-01476 (2002). Hays v. Branham and Baker Coal Co., Inc.

• Case Date: July 17, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-01476 (2002). Hays v. Branham and Baker Coal Co., Inc ANDY HAYS PETITIONER vs. BRANHAM and BAKER COAL COMPANY, INC. and HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: July 17, 2002CLAIM NO. 00-01476APPEAL FROM HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. GARDNER, Member. Andy Hays appeals from an opinion and order rendered by Hon. W. Bruce Cowden, Jr., Administrative Law Judge (ALJ), dismissing Hays's workers' compensation claim against Branham and Baker Coal Co., Inc. (Branham and Baker). The ALJ determined Hays failed to establish he suffered a work-related neck injury in the course of his employment with Branham and Baker. On appeal, Hays argues the ALJ's decision is clearly erroneous on the basis of the reliable, probative and material evidence contained in the record. Hays, born March 27, 1950, has a high school education and no specialized or vocational training. He testified he had worked in the coal mining industry since 1976 and most recently for Branham and Baker for the last four and one-half years. Hays stated he worked eleven to twelve hours a day, four days a week, as a bulldozer operator. Hays testified that on April 15, 1999, while operating his bulldozer, he backed over a rock and felt a sting and numbness in his neck. The morning break was scheduled for 9:00 a.m. and when Hays did not get out of his bulldozer at break, a co-worker radioed him. Hays advised that he was not feeling well and had numbness in his left arm. His supervisor, Elmer Bentley (Bentley), called for a mining emergency technician, who examined Hays and suggested he go to the hospital because he might have had a stroke. An ambulance was called and Bentley drove Hays out of the job site to meet the ambulance. Hays was taken to the emergency room at Pikeville Methodist Hospital. His complaints were difficulty breathing, numbness in his left side and pain in his neck. He did not recall giving a history of stomach problems. He admitted he did not give a history of a work injury because the hospital personnel were more concerned that he had a stroke. Soon after his trip to the emergency room, Hays sought treatment from his regular chiropractor, Dr. C. C. Smith. Hays explained that he started seeing Dr. Smith in 1991 or 1992 on a regular basis because of the jolts and jarring he suffers as a result of operating a bulldozer. He testified he goes for an adjustment approximately once every one or two months. Hays saw his family physician, Dr. Maddox, on April 27, 1999 for a rash and did not mention a work injury. He explained that because he was seeing a chiropractor, he did not mention the neck problem to Dr. Maddox. Hays did not miss any work...