No. 00-01548 (2002). Har-Lee Coal Co. v. Burns.

• Case Date: April 10, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-01548 (2002). Har-Lee Coal Co. v. Burns HAR-LEE COAL COMPANY PETITIONER vs. JAMES BAKER BURNS, TOM COAL COMPANY, SPECIAL FUND and HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: April 10, 2002 CLAIM NO. 00-01548APPEAL FROM HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. LOVAN, Chairman. Har-Lee Coal Company ("Har-Lee") appeals from the decision of Hon. James L. Kerr, Administrative Law Judge ("ALJ"), finding James Baker Burns ("Burns") totally disabled with 80% of that disability attributable to the work injury at Har-Lee and 20% attributable to a previous work injury with Tom Coal Company ("Tom Coal"). Burns' first injury occurred June 18, 1990, when he injured his low back while lifting a crosstie. He settled that claim against Tom Coal and the Special Fund ("SF") in 1991 for a 20% occupational disability. Burns was also awarded Social Security disability benefits. Eventually, Burns underwent surgery by Dr. Bean in 1997 and returned to work for another company, T and T Coal, approximately seven or eight months following that surgery. He worked for T and T Coal from 1998 to 1999, when he became employed Har-Lee in September of 1999. Burns stated he felt great after his surgery and had no problems working for T and T Coal or Har-Lee until an incident in June of 2000 when he ran over a rock on a mantrip. He was jolted and developed pain so he visited a doctor at the Evarts Clinic. Burns missed on day of work following that injury. He returned to work without problem and missed no work until September 5, 2000. On that date, he was lifting a cable and felt a pop in his back. He kept trying to work but was unable to do his job and only worked a week thereafter. He was treated by Dr. Bean. Burns indicated Dr. Bean had recommended physical therapy but that was denied by the insurance carrier. Burns' present complaints include low back pain with pain and numbness in both legs. He was receiving pain shots every two weeks, which helped him for a night. He could only walk short distances without resting and could only sit 15 to 20 minutes at a time. He must lay down 5 to 6 times a day and spends 80% of his time lying down. He reapplied for Social Security and has been approved. Burns filed a motion to reopen his claim for the 1990 injury on December 12, 2000 and filed a new claim for the July and September 2000 injuries on December 27, 2000. At the time of Burns' original agreed Opinion and Award, the proof consisted of testimony from Drs. Grefer, Muffly, Patrick and Goodman. Impairment ratings ranged from 0 to 10% and the physicians gave varying degrees of restrictions. In the present action, the ALJ found Dr. Muffly to be more persuasive concerning restrictions. Dr. Muffly indicated Burns could lift 30 pounds repetitively and 40 pounds at a maximum with only occasional bending, stooping crouching, balancing and climbing. The ALJ concluded Burns had a 20% occupational disability as of October 28, 1991. Dr. David Muffly evaluated Burns in connection with the reopening and the new claim. He saw Burns on December 7, 2000 for a low back injury occurring September 5, 2000. He found Burns had a large central disk protrusion/herniation at L5/S1 as well as multiple level degenerative disk disease and lumbar radiculopathy. He...