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Holcim v. Swinford

Court of Appeals of Kentucky

September 7, 2018

LAFARGE HOLCIM APPELLANT
v.
JAMES SWINFORD; HON. GREG HARVEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD OF KENTUCKY APPELLEES

          PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-16-90245

          BRIEF FOR APPELLANT: Douglas A. U'Sellis Louisville, Kentucky

          BRIEF FOR APPELLEE JAMES SWINFORD: Charles A. Tveite Paducah, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND NICKELL, JUDGES.

          OPINION

          CLAYTON, CHIEF JUDGE:

         Lafarge Holcim (Lafarge) appeals from an opinion of the Workers' Compensation Board which affirmed in part and reversed in part an order of the Administrative Law Judge (ALJ). The Board affirmed an award of permanent partial disability (PPD) benefits to James Swinford, a former Lafarge employee who suffered a workplace injury while operating a bulldozer, and reversed the ALJ's determination that the benefits were subject to the "tier down" provision of the 1994 version of Kentucky Revised Statutes (KRS) 342.730(4). Having reviewed the record and applicable law, we affirm.

         The claimant in this case, James Swinford, has a sixth-grade education and no vocational training. He started working for Lafarge's predecessor in 1973. Since 2010, his primary job was operating a bulldozer on twelve-hour shifts, five days per week. At the time of his injury, he was seventy-five years of age.

         At some time in the 1990s, Swinford underwent surgery on his cervical spine to address nerve damage in his hands. The surgery did not provide any significant improvement in symptoms in his neck and upper extremities and he continued to experience tingling and numbness in both hands.

         On March 10, 2016, the bulldozer Swinford was operating slid forty to seventy feet down an embankment. Swinford was wearing a seatbelt at the time of the accident. He had to wait for approximately seven hours in the cab of the bulldozer before help arrived. During that time, he ate his lunch and napped. When he woke up, he felt a "crick" in the right side of his neck.

         Following the accident, Swinford was taken to the hospital by ambulance and later consulted his family physician, Dr. William Barnes. He received physical therapy but it provided no relief. Dr. Barnes referred him to Dr. K. Brandon Strenge, an orthopedic surgeon. Dr. Strenge ordered an MRI and prescribed Tramadol, a pain medication. He referred Swinford to Dr. J. T. Ruxer, a doctor of osteopathic medicine, for pain management. Dr. Ruxer recommended injections and indicated that Swinford might need surgery.

         Swinford continued to experience pain in his neck and right arm as well as numbness. He was released to work without restrictions in May 2016, but when he attempted to return to work at Lafarge, his employment was terminated. According to Swinford, his condition continues to worsen and his pain medication has been increased. He does not believe he will be able to return to work as a bulldozer operator due to his neck pain.

         Swinford filed a Form 101 Application for Resolution of Injury Claim alleging that he sustained multiple upper extremity injuries and a neck injury as a result of the bulldozer accident.

         Swinford testified that the cervical surgery in the 1990s provided little relief. He continued to experience numbness in his right hand, but it did not interfere with his ability to work, and he did not seek any treatment for his neck until after the March 10, 2016 accident.

         Medical evidence was offered by Dr. Strenge, Dr. Ruxer, and Dr. Robert Weiss, a neurosurgeon who served as the Independent Medical Examiner (IME). Office records from Baptist Occupational Medicine ...


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