Perry County Coal v. Gregory Osborne, 031221 KYWC, 201602539

• Case Date: March 12, 2021
• Court: Kentucky

PERRY COUNTY COAL PETITIONER v. GREGORY OSBORNE and HON. PAUL WHALEN, ADMINISTRATIVE LAW JUDGE RESPONDENTS No. 201602539 Kentucky Workers Compensation Commonwealth of Kentucky Workers’ Compensation Board March 12, 2021          APPEAL FROM HON. PAUL WHALEN, ADMINISTRATIVE LAW JUDGE           COUNSEL FOR PETITIONER: HON JEFFREY DAMRON LMS           COUNSEL FOR RESPONDENT: HON JOHN HUNT MORGAN LMS           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION           STIVERS, Member.          Perry County Coal (“Perry County”) seeks review of the October 23, 2020, Opinion and Order of Hon. Paul Whalen, Administrative Law Judge (“ALJ Whalen”) finding Gregory Osborne (“Osborne”) sustained a March 9, 2015, low back injury while in the employ of Perry County. The ALJ awarded permanent partial disability (“PPD”) benefits enhanced by the three multiplier pursuant to KRS 342.730(1)(c)1. Perry County also appeals from the November 23, 2020, Order sustaining in part and denying in part its Petition for Reconsideration.          On appeal, Perry County argues the ALJ erred in finding Osborne did not retain the physical capacity to return to the type of work performed at the time of the March 9, 2015, injury and enhancing his PPD benefits via the three multiplier. Perry County also asserts the ALJ erred in relying upon the opinions of Dr. Arthur Hughes in finding Osborne retains a 6% impairment rating as a result of the subject injury.          BACKGROUND          On May 23, 2016, Osborne filed a Form 103 (Claim No. 2015-01084) alleging he sustained occupational hearing loss as a result of his employment with Perry County. Osborne listed the date of injury as October 1, 2015.          On July 11, 2016, Osborne filed a Form 101 (Claim No. 2016-01535) alleging he sustained cumulative trauma injuries to his shoulders while in the employ of Perry County. Attached to this Form 101 is Dr. Hughes’ May 26, 2016, report.          By Order dated November 7, 2016, Hon. Chris Davis, Administrative Law Judge, consolidated the claims.          On November 17, 2016, Osborne filed a Form 101 (Claim No. 2016-02539) alleging an acute low back injury occurring on March 9, 2015, while in the employ of Perry County. Attached to the Form 101 is the October 5, 2016, Form 107 report and addendum of Dr. Jeffrey Fadel.          By Order dated January 3, 2017, Hon. Richard Neal, Administrative Law Judge (“ALJ Neal”), consolidated Claim No. 2016-02539 with the previously consolidated claims.1          On June 19, 2017, while the claims were in litigation, Osborne filed a Form 101 (Claim No. 2016-65014) alleging an October 13, 2016, injury to his lower back and left leg while in the employ of Hitachi Automotive Systems (“Hitachi”)2. Along with the Form 101, Osborne filed the June 1, 2017, narrative report and Form 107 report of Dr. David Muffly. By Order dated August 31, 2017, ALJ Neal consolidated this claim with the claims against Perry County.3          Osborne was deposed on September 20, 2016, March 1, 2017, and August 22, 2017, and testified at a December 20, 2017, hearing. At the September 20, 2016, deposition, Osborne explained why he quit working for Perry County.

A: Well, my back was actually hurting a lot and they were letting me sit outside, you know. I was maintenance foreman and I was on salary. But they cut my pay in half. They cut everybody’s, not just mine. They sold out, you know. They cut my pay and put me on hourly. And I was driving two hours each way to work. And I didn’t see it hardly coming out, you know. So then I got a job offer from Hitachi, and I thought it would be easier on my back and stuff if I just switched instead of lifting all this big heavy stuff. And it was about the same pay and a lot closer to home. So I left, quit, and went to Hitachi.

Q: So you voluntarily left that job?

A: Yeah, they cut my pay so much I just couldn’t come out, to be honest with you. When Osborne left the employ of Perry County, he was under no work restrictions but was still taking medication for low back pain which he continued to experience after the March 2015 injury.^[4] Osborne testified the back pain had eased since March 2015. Osborne missed no work due to the injury but performed light duty for a short period. He described his duties with Perry County:

Q: Okay. And getting back to your job at Perry County Coal, you were a maintenance foreman. Can you tell me what all that job required you to do?

A: Anything that – you know, I was responsible for getting parts to the work area. No matter how you had to do it, I had to get them there some way. I had to go with the inspectors a whole lot when I had one. I had to walk the outside belts. Most of the time, I had to take care of them, you know, and make sure they were ready and do the maintenance on them.

Q: Okay. Was it a physically demanding job?

A: Yeah.

Q: Can you tell me some of the ways it was physically demanding?

A: That was mostly part of it, loading parts. Because it’s a slope mine, you have to load parts. You have to load parts from outside on top of the slope into the slope car. Then you ride down to the bottom of the slope, then you have to get parts out and put them in the mantrip. Then when you get to the end of the track, you’ve got to get them out.

Q So there’s two or three times you got to lift the same parts and unload and load them?

A: Yeah, they still do it right now.

Q: And how big are the parts?

A: It don’t matter. I loaded big parts, I loaded little parts. I’ve loaded motors. It’d take two or three people to load them.

Q: What would be the heaviest thing you’d have to lift, just on an average day at Perry County Coal? How much would it weigh, 50 pounds, 75, 100?

A: I don’t [sic] of nothing over there that would weigh under 100 pounds.

Q: Was there anything heavy you had to lift just by yourself routinely?

A: Not routinely. It may come up and somebody isn’t there to help you, but no, usually there was somebody there to help you.

Q: Okay.

A: I mean some of them, you can’t lift by yourself. You can roll them all you want to, but you just can’t get them lifted.

Q: Okay. So there’s just a lot of heavy things that you had to lift?

A: Yeah.

Q: Did you work underground in the mines at all?

A: Oh, yeah. Yeah.

Q: Would you do repairs underground?

A: Yeah.

Q: Okay. And what kind of machines would you work on under there?

A: Head drives, belts, tracks, mantrips, all the face equipment.

Q: Okay. Would you be underground on a daily basis?

A: Every day.

         After leaving Perry County, Osborne immediately went to work for Hitachi. At the time of his deposition, he was still working for Hitachi in maintenance. Osborne believed he was physically unable to return to work at Perry County. He occasionally experienced low back pain which extended into his leg. He also experienced pain when he bent over or twisted.          At the March 1, 2017, deposition, Osborne again testified he began working for Hitachi in October 2015 performing maintenance work. At the time of this deposition, Osborne had not filed Claim No. 2016-65014 alleging the October 13, 2016, lower back and left leg injuries. However, he described what occurred on October 13, 2016, as follows:

Q: Why did that job end?

A: I hurt – my back went out on me while I was at work one day.

Q: What were you doing when it went out on you?

A: I was up in under a piece of equipment cleaning it, and my back went out, my leg went numb. It locked up, my back did, and I had to lay there for a few minutes till [sic] I could crawl out. And then I went to the doctor the next day.

…

Q: Okay. When you say you were under it, were you like on your back, on your knees, what?

A: On my knees. You have to crawl in under it. It’s like a little crawlspace, and you have to crawl up in under it and clean it.

Q: Okay. I’m trying to get an understanding of what happened on that day. Are you saying that you kind of like moved in some certain way that caused your back to go out or was there anything else that contributed other than just the way that you were positioned?

A: I really don’t know how to explain that, you know. It just – it was a [sic] everyday thing that I was doing; but my back, you know, had been hurting for a while and it just happened to go out that day.

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