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Holcim v. Swinford

Supreme Court of Kentucky

August 29, 2019

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

          ON APPEAL FROM COURT OF APPEALS CASE NO. 2018-CA-000414-WC WORKERS' COMPENSATION BOARD NO. 16-WC-90245

          COUNSEL FOR APPELLANT: Douglas Anthony U'Sellis U'Sellis Mayer & Associates

          COUNSEL FOR APPELLEE JAMES SWINFORD: Charles Tveite Edwards & Kautz PLLC

          COUNSEL FOR APPELLEE W. GREG HARVEY: Walter Greg Harvey Administrative Law Judge

          COUNSEL FOR APPELLEE WORKERS' COMPENSATION BOARD: Michael W. Alvey Worker's Compensation Board

          COUNSEL FOR AMICI CURIAE, DAVID W. OSBORNE, SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES, AND ROBERT STIVERS, PRESIDENT OF THE KENTUCKY SENATE: David E. Fleenor Office of the Senate President R. Vaughn Murphy Office of Senate President David Eric Lycan Office of the Speaker of the House of Representatives Tyler Peavler Office of the Speaker of the House of Representatives

          COUNSEL FOR AMICI CURIAE, KENTUCKY CHAMBER OF COMMERCE, NORTHERN KENTUCKY CHAMBER OF COMMERCE, GREATER LOUISVILLE, INC., COMMERCE LEXINGTON, INC., KENTUCKY LEAGUE OF CITIES, AND KENTUCKY COAL ASSOCIATION: Brent Robert Baughman Bingham Greenebaum Doll, LLP Richard Clayton Larkin Dinsmore & Shohl, LLP Kyle William Miller Bingham Greenebaum Doll, LLP

          COUNSEL FOR AMICUS CURIAE, KENTUCKY WORKERS ASSOCIATION: Peter J. Naake Priddy, Cutler, Naake & Meade, PLLC

          COUNSEL FOR AMICUS CURIAE, KENTUCKY CHAPTER OF AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS: Udell Barry Levy Jennings Law Office

          OPINION

          WRIGHT JUSTICE

         I. BACKGROUND

         James Swinford worked as a bulldozer operator for Lafarge Holcim when he was injured on the job on March 10, 2016. That day, the ground where he was moving dirt caved in causing him to crash the dozer down an embankment. He remained in the equipment for seven hours after the crash until he was rescued by boat and removed from the pit. Swinford was seventy-five years old on the day of the accident and had worked for Lafarge or its predecessor for more than four decades.

          After the accident, Swinford had what he described as a "crick" in his neck. This pain in his neck worsened and was accompanied by pain and weakness radiating into his right arm. He has not worked since the date of his work-related injury.

         The Administrative Law Judge (ALJ) awarded Swinford permanent partial disability (PPD) benefits based on his treating doctor's impairment rating of 15%. That award and the duration of Swinford's benefits were appealed to the Workers' Compensation Board and then the Court of Appeals. They are also the subject of this present appeal.

         II. ANALYSIS

         A. ...


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