PETITION FOR REVIEW OF A DECISION OF THE WORKERS'
COMPENSATION BOARD ACTION NO. WC-16-90245
FOR APPELLANT: Douglas A. U'Sellis Louisville, Kentucky
FOR APPELLEE JAMES SWINFORD: Charles A. Tveite Paducah,
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND NICKELL, JUDGES.
CLAYTON, CHIEF JUDGE:
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.
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.
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.
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.
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.
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
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.
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.
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 ...