No. 00-64391 (2002). Calvary Coal Co. v. Lee.

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

Kentucky Workers Compensation 2002. No. 00-64391 (2002). Calvary Coal Co. v. Lee CALVARY COAL COMPANY PETITIONER vs. ROBERT E. LEE, JR., and HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: July 10, 2002CLAIM NO. 00-64391APPEAL FROM HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. LOVAN, Chairman. Calvary Coal Company ("Calvary") appeals from the decision of Hon. Donald G. Smith, Administrative Law Judge ("ALJ"), awarding benefits to Robert E. Lee, Jr. ("Lee"), based upon a 19% functional impairment rating. Lee alleged he sustained a work-related injury to his shoulders, arms, hands, back and right leg on August 29, 2000. Lee was then employed by Calvary as a beltman. His job was to shovel coal onto a moving beltline as well as helping install and remove beltlines, remove rollers and carry bags of rock dust. His work involved constant bending, stooping, squatting, crawling and lifting weights up to 100 pounds. On August 29, 2000, Lee was shoveling coal when he experienced back pain radiating down his right leg. He later experienced neck and shoulder pain radiating down his arms. He continued to work and the pain increased. He testified he leg became paralyzed and his low back and neck condition gradually worsened to the point that he had to leave the mines on the morning of September 6, 2000. Lee initially sought medical treatment the following day with Dr. C. A. Moore. Dr. Moore ordered x-rays and a CT scan of the lumbar spine, which were performed September 8, 2000. Additionally, Lee had an MRI on September 14, 2000 and an EMG/NCV study on September 18, 2000. Lee indicated the insurance carrier referred him to Dr. Robert Taylor of the Back and Neck Clinic in London, Kentucky, for an evaluation in October 2000. He treated with Dr. Taylor on four different occasions. He was eventually released to return to restricted work in October 2000. Calvary offered him a light duty job, but Lee indicated this was with the understanding the job would be temporary only and would involve sitting outside the mines until he could return to underground work. Lee turned down the job and informed Calvary he felt he could not perform the job duties of the position offered. Lee has not returned to work. He continues to have neck and back pain radiating down the legs. The pain increases with activities. He must lie down daily and change positions frequently. He continues to see Dr. Moore and takes prescription medications. Lee testified he continues to experience soreness in the neck and it catches. The neck pain extends into both shoulders. Dr. Moore first treated Lee on September 7, 2000. Lee presented with back pain, right leg pain, and right shoulder and shoulder blade pain. Dr. Moore related Lee's degenerative changes to the type of work activities he engaged in and stated the changes were accelerated by the type of work performed. The injuries Lee sustained at work and the aggravation or arousal of these underlying degenerative changes were the cause of Lee's problems. He saw no evidence of symptom magnification. Dr. Moore indicated that, if anything, Lee was likely to under-report his difficulties. He noted on one occasion Lee had been prescribed Oxycontin, but he threw the pills away. Dr. Moore testified the EMG/NCV studies were consistent with radiculopathy. He felt the cervical and lumbar spine injuries were permanent conditions and assessed restrictions of no lifting more than 5 to 10 pounds. Additionally, Dr. Moore indicated Lee should not crawl, bend or squat. He had not released Lee. Dr. Moore indicated he tried to avoid giving AMA impairment ratings, but he did have the Fourth Edition of the AMA Guides and had photocopies of certain sections of the Fifth Edition. He reviewed...