Trade-Mark Industrial LLC v. Colvin, 022621 KYWC, 201900769

• Case Date: February 26, 2021
• Court: Kentucky

TRADE-MARK INDUSTRIAL LLC PETITIONER v. JOHN COLVIN1 And HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE RESPONDENTS Claim No. 201900769 Kentucky Workers Compensation Commonwealth of Kentucky Workers’ Compensation Board February 26, 2021          APPEAL FROM HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE.           COUNSEL FOR PETITIONER: HON MICHAEL NEAL LMS           COUNSEL FOR RESPONDENT: HON MCKINNLEY MORGAN LMS           ADMINISTRATIVE LAW JUDGE: HON CHRIS DAVIS LMS.           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION           STIVERS, Member.          Trade-Mark Industrial LLC (“Trade-Mark”) seeks review of the October 12, 2020, Opinion, Award, and Order of Hon. Chris Davis, Administrative Law Judge (“ALJ”) finding John Colvin (“Colvin”) sustained cumulative trauma cervical and lumbar spine work injuries while in the employ of Trade-Mark. The ALJ dismissed Colvin’s claims for cumulative trauma injuries to his hips and right shoulder. The ALJ awarded permanent partial disability (“PPD”) benefits and medical benefits unenhanced by a statutory multiplier for each injury. Trade-Mark also appeals from the November 3, 2020, Order overruling its Petition for Reconsideration.          On appeal, Trade-Mark charges the opinions of the doctors upon which the ALJ relied to find Colvin sustained work injuries do not constitute substantial evidence. Trade-Mark also contends Colvin’s testimony cannot constitute substantial evidence supporting the ALJ’s findings of work-related cervical/neck and low back injuries since causation must be established by medical evidence.          As this appeal pertains to the ALJ’s findings of work-related cervical and lumbar injuries, only the lay and medical evidence related to those findings will be addressed herein.          BACKGROUND          Colvin’s Form 101 filed June 29, 2019, alleges January 4, 2018, injuries to multiple body parts caused by repetitive motion. Colvin described the cause of the injuries as follows: “Repetitive motion to the bilateral hips, right shoulder, cervical spine and lumbar spine.” Colvin asserted notice was provided to Trade-Mark via a June 29, 2019, letter. Among the documents attached to the Form 101 are a copy of the June 29, 2019, letter and the Form 107 medical report of Dr. John W. Gilbert, a neurosurgeon.          At his August 29, 2019, deposition, Colvin testified he is 60 years old, a high school graduate, and attained less than one year of college. He attended no ther schools and has no vocational training. His family physician is Dr. Mark Caruso. In March 1999, he became a millwright and a member of its union.2 Colvin provided the following explanation regarding the frequency of his millwright work over the ensuing twenty-year period:

Q: But, I mean, would you work for the whole year, would you work a month of the year? I’m just trying to get an idea of how much you were actually working throughout a year, period.

A: Over a period of 20 years? Is that what – I mean –

Q: Or. from – from 1999, you began as a millwright through the union. I mean, would you work –

A: I couldn’t – I couldn’t answer that because, I mean, I can’t remember. I used to keep all them records and I did the planner things because of my taxes. If I had all them I could back up and tell you every job and how many hours I worked and I could pin it right down to the exact, but I don’t – I don’t have that anymore.

Mr. Borders: I think what he’s trying to figure out, John, is out of a year, out of 12 months, how many months out of 12 would you normally be working.

A: Maybe average of two. That’s – a good year, you might do six. But now, you know, good years, you didn’t have that many good years, you know. That’s why that you – if you had a chance to get six weeks or five weeks of six 10’s, you know, that you’d take it, because it might be another three months before you got – I mean, and I’ve been to Detroit; I’ve been to Illinois; I’ve been to Ohio, Lexington, Louisville, Georgetown, Cincinnati. I mean, just wherever the job was. Baltimore.

Q: You said on average you worked two months out of the year?

A: Over a period of 20, it would probably – when you factor in the good years, you know, you’re probably looking at four, if you factor – put all 20 together and average them back out, probably four, four to five months.

         Prior to attaining this certification, he was a heavy equipment operator for approximately fifteen years operating a drill and rock truck.          In June 2016, Colvin began working as a millwright for Trade-Mark. Before working for Trade-Mark, he worked approximately six months as a millwright for LG Fox, a contractor performing work in Toyota’s Georgetown plant. He testified work as a millwright was not “a full-time thing for twenty years.” However, while employed by Trade-Mark, Colvin worked full-time in the Toyota plant working over-time almost every week. He worked as a foreman for eight weeks. He provided the following description of his work for Trade-Mark:

A: We just – I think they had us on evening shift moving a bunch of cells we had to relocate. We had to pick up machinery; we had to cut it loose from the floor, pick it up with a forklift, secure it to the forklift, lay out lines, move the cells, put the fences back around. So we – it’s hard to explain. I was just a millwright. I was just moving equipment, relocating it, installing new, leveling, putting it on grade.

Q: This is the equipment at the Toyota plant in Georgetown?

A: Yes.

Q: This is the equipment they utilize to manufacture –

A: Cars.

Q: -- cars.

A: Yeah. Parts.

…

Q: Well, how long were you a foreman?

A: We had a little small job in power train that we did and I think it ended up being about eight weeks. What it was, I just took – I agreed to oversee a crew of men work. Foremen, nowadays, you have to be a working foreman. You don’t throw your tools over there and crack the whip. We just – we picked up mill stands, milling machines, set them off the bases, took parts off the old, put parts on the new, put the new milling stands back on, put them back on the line, made sure they was back on center line, put the transfer rails in, cleaned up the work area and you always closed your work area off with caution tape or chain, plastic chain, whatever. So we just – we just relocated equipment, took old out, installed new, just whatever the job called for.

         Each day, Colvin drove from Paintsville to Georgetown arriving at the plant by 6:30 a.m. He usually left the plant by 4:30 p.m. He recounted the physical requirements of his job:

Q: Now, what type of lifting was involved? Like, what would be the heaviest item you would have to lift in the position?

A: Well, sometimes we had cribbing that we had to crib machines up with that was, I don’t know, 50, 60 pounds. Some pieces that we couldn’t move with a forklift we had to manhandle. I know that there was, like, four or five of us moving a – like a 400-pound – well, it was a base is what it was, but it was – I don’t know – an inch and a half metal. The dimension, I don’t remember the dimension on it. It was as big as this table, half of it. So, you know, it just varied.

Q: But like a normal shift, what types of weights would you be typically lifting?

A: Fifty, sixty pounds, but, I mean, not every move you made, but 50 to 60 pounds.

Q: I mean, how often would you have to lift 50 or 60 pounds?

A: Six or eight times a day.

Q: Now, what about – were you largely walking around, standing, when you were doing your job?

A: Well, you’re walking; you’re standing; you’re squatting; you’re kneeling; you’re crawling on your knees; you’re using hand tools to tighten bolts, loosen bolts; you use grinders, whatever it is to cut the anchor bolts, and then you’ve got to drive the anchor bolts down through the floor, so, you know, you’ve got a combination of stand, walk, crawl, squat, on forklift, off forklift, just – it’s just a combination of everything. You know, there’s no – some days I might have got on and off a forklift two dozen times helping rig stuff and making sure it suited me if I was running the forklift to pick it up, and then, you know ….

         Colvin did not remember signing paperwork daily indicating he had not been injured at work that day. The foreman was Russell Miller and the project manager was Mike Sapps. He last worked for Trade-Mark on January 4, 2018. He explained why he stopped working after January 4, 2018: ...