No. 00-71259 (2002). Bledsoe Coal Co. v. Hensley.

Case DateMay 08, 2002
CourtKentucky
Kentucky Workers Compensation 2002. No. 00-71259 (2002). Bledsoe Coal Co. v. Hensley BLEDSOE COAL COMPANY PETITIONER vs. FREDDIE HENSLEY and HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: May 8, 2002 CLAIM NO. 00-71259APPEAL FROM HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.GARDNER, Member. Petitioner, Bledsoe Coal Company (Bledsoe), appeals from an opinion and award rendered by Hon. Roger D. Riggs, Administrative Law Judge (ALJ), awarding the respondent, Freddie Hensley (Hensley), permanent partial disability benefits for a low back injury and applying the 3 modifier provided for in KRS 342.730(1)(c)1. and the .2 modifier provided for in KRS 342.730(1)(c)3. On appeal, Bledsoe contends it was error for the ALJ to apply the 3 modifier because the evidence is uncontested that Hensley returned to the same "type of work" he was performing at the time of the injury. Bledsoe also contends Hensley has acquired a GED and is therefore not entitled to the .2 modifier applicable to those claimants with limited education. The facts in this claim are relatively simple and for the most part undisputed. Hensley filed his application for resolution of injury claim on June 14, 2001, alleging an injury to his back on August 24, 2000. Hensley testified that while handling a five-gallon can of oil he slipped and fell, twisting his back. Hensley testified that his job classification at Bledsoe was that of a section foreman. Hensley stated that prior to his employment with Bledsoe he worked for Trinity of Virginia as a section foreman. In his capacity with that employer, he was not required to operate machinery and the position was purely supervisory and to "make sure everybody done what they was told to do." While employed at Bledsoe as a section foreman, he stated he was required to operate machinery. Additionally, he testified that his crew was almost always short-handed and there was seldom a day that he was not involved in manual labor. Hensley stated that while at Bledsoe he worked in forty-eight inch coal, which required him to walk while bending over or to crawl. Hensley stated that after his injury he was ultimately allowed to return to work but his job resulted in significant pain. Hensley stated that he was ultimately terminated but he is presently employed by North Point Energy as a section foreman. Hensley stated this job is in coal of sufficient height allowing him to stand up. He also...

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