No. 00-72402 (2002). R B Coal Co. v. Wagner.

• Case Date: August 28, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-72402 (2002). R B Coal Co. v. Wagner R B COAL COMPANY PETITIONER vs. CURTIS WAGNER and HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: August 28, 2002CLAIM NO. 00-72402APPEAL FROM HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART, REVERSING IN PART AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.GARDNER, Member. R B Coal Company ("R B Coal") appeals from a decision rendered by Hon. James L. Kerr, Administrative Law Judge ("ALJ"), awarding Curtis Wagner ("Wagner") workers' compensation benefits for work-related knee injuries. The ALJ determined that Wagner sustained injuries to both his right and left knee in the course of his employment with R B Coal. On appeal, R B Coal argues the ALJ's finding that Wagner sustained a work-related injury is not supported by substantial evidence in the record, that the ALJ erred in applying the 1.5 multiplier pursuant to KRS 342.730(1)(c)1., and that the Fourth Edition rather than the Fifth Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (Guides) is applicable. Wagner, born June 13, 1960, has a ninth grade education and twenty-two years of employment in underground coal mining. Wagner alleges three work injuries to his knees. It is undisputed that he has a medical history of treatment for his knees dating from 1995 to 1998. Concerning his work injuries, Wagner testified he sustained a work injury on April 29, 1999. At that time, while leveling a long john belt structure he slipped, twisting his ankle and right knee. His second injury occurred on May 28, 1999, when he stepped on a rock and twisted his left ankle, causing his left knee to pop out of place. According to Wagner, his third injury occurred on June 2, 2000, when his right knee locked up while he was crawling in low coal. Wagner treated with Dr. Morgan and was eventually referred to Dr. Phillip Corbett, who performed surgery on Wagner's left knee on July 15, 1999 and on the right knee on October 19, 2000. At his hearing, Wagner testified he has returned to work with R B Coal, earning as much or more than he did at the time of his injury. He is now working as a section foreman, the job he performed at the time of his injuries, working approximately fifty-eight hours per week earning $18.50 an hour. He testified the employer assists him in performing his job by furnishing him with a buggy to ride in. He further avoids crawling whenever possible. Wagner testified his current complaints include burning pain in the knees and if he sits for a period of time, he can not straighten his knees out. He also has problems with kneeling, squatting, crouching, and duck walking. As stated, an issue concerns Wagner's previous medical treatment for his knees. At his deposition, he at first denied having prior knee injuries. When questioned concerning medical records from Pineville Hospital Emergency Room, he testified he did not consider his previous knee problem an injury because it was just a sprain from which he fully recovered. He admitted that he had fluid withdrawn from his knees but explained that it was caused by crawling, which was required of underground miners. He testified the injuries that occurred at work in April and May 1999 were different because they caused his knee to completely lock up. Dr. Corbett first saw Wagner on July 7, 1999 for a right knee injury that occurred on May 28, 1999. Dr. Corbett's impression was a torn medial meniscus with...