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Pine Branch Mining, LLC v. Hensley

Court of Appeals of Kentucky

October 18, 2019

PINE BRANCH MINING, LLC APPELLANT
v.
LONNIE HENSLEY; HONORABLE JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

          PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-16-00609

          BRIEF FOR APPELLANT: W. Barry Lewis Hazard, Kentucky

          BRIEF FOR APPELLEE LONNIE HENSLEY: Timothy J. Wilson Lexington, Kentucky

          BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

          OPINION

          DIXON, JUDGE

         Pine Branch Mining, LLC seeks review of an opinion of the Workers' Compensation Board affirming in part, reversing in part, and remanding an Administrative Law Judge's award of permanent total disability benefits to Lonnie Hensley. After careful review, we affirm the Board's decision in part, vacate in part, and remand this matter to the ALJ for further proceedings.

         Hensley was employed as a heavy equipment operator at surface coal mines for forty-three years. While working for Pine Branch, he operated an end loader, which subjected him to repetitive jarring and jolting as he maneuvered the bucket to chop the coal and scoop it from the seam. In 2014, he began experiencing low back pain and later developed radiating pain in his left leg. He ultimately left his job with Pine Branch on October 23, 2015, due to ongoing pain in his low back and leg. Hensley filed a claim for workers' compensation benefits alleging occupational hearing loss and a cumulative trauma injury to his lower back. Hensley's claim for occupational hearing loss was not disputed, and the parties agreed with a 17% impairment rating assessed by Brittany Brose, Au.D. In support of his cumulative trauma claim, Hensley submitted the medical records of Dr. Raichel and the IME report of Dr. Burke. Dr. Raichel's records showed an office visit in May 2015, wherein Hensley complained of worsening low back pain that was radiating down his left leg. Dr. Raichel assessed left-sided lumbar radiculopathy and referred Hensley for an MRI. Hensley saw Dr. Burke for an IME on March 24, 2016. Dr. Burke reviewed medical records, MRI films, and conducted a physical examination of Hensley. Dr. Burke noted the imaging studies showed a loss of lumbar lordosis with degenerative changes at L4-5 and L5-S1 in the facet joints. Dr. Burke diagnosed Hensley with a repetitive loading strain injury to his lumbosacral spine with symptomatic left-side L5 radicular pain caused by repetitive vertical and side to side jolting during his work as a heavy equipment operator. Dr. Burke concluded Hensley lacked the physical capacity to return to that type of work and assessed 7% whole person impairment. Pine Branch submitted the IME report of Dr. Primm, who assessed no impairment and concluded Hensley's complaints were mild age-related changes not attributable to his work. Hensley testified he had an eighth-grade education and had always worked as a heavy equipment operator in coal mines. At Pine Branch, he worked a twelve-hour shift, five days per week, operating an end loader in the surface mining pit. Hensley described the operation of the end loader as rough, with constant jarring and jolting of his body.

         In a January 2017 opinion and award, the ALJ found Hensley suffered a work-related cumulative trauma injury to his low back that rendered him permanently totally disabled. The ALJ awarded permanent total disability benefits beginning October 23, 2015 and continuing until Hensley qualified for old-age social security benefits. Pine Branch filed a petition for reconsideration requesting additional findings of fact regarding causation and cumulative trauma. The ALJ issued an order denying the petition and reiterating her previous findings that Hensley's low back pain was the result of cumulative trauma sustained during his work as a heavy equipment operator.

         Both Hensley and Pine Branch appealed the ALJ's decision to the Board. Pine Branch challenged the sufficiency of the evidence regarding causation/cumulative trauma, total disability, and onset date of the compensable disability period. In his appeal, Hensley challenged the constitutionality of Kentucky Revised Statutes (KRS) 342.730(4), which limited workers' compensation benefits based on eligibility for old-age social security. The Board rendered an opinion affirming in part, reversing in part, and remanding. As to Pine Branch's claims, the Board concluded substantial evidence supported the ALJ's finding that Hensley suffered a work-related cumulative trauma injury to his low back that resulted in permanent total disability. Regarding Hensley's argument, the Board determined reversal of the award was required due to the Kentucky Supreme Court's decision in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017), which held KRS 342.730(4), as amended in 1996, was unconstitutional on equal protection grounds. The Board remanded the claim to the ALJ for calculation of an award pursuant to the tier-down provision contained in the 1994 version of KRS 342.730(4) . This petition for review followed.

         The findings of an ALJ in favor of an injured worker will not be disturbed on appeal where the decision is supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). "The [ALJ], as the finder of fact, and not the reviewing court, has the authority to determine the quality, character and substance of the evidence presented . . . ." Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Furthermore, the ALJ is free "to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). When this Court reviews a workers' compensation decision, our function is to correct the Board only where we believe "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

         As it did before the Board, Pine Branch challenges the sufficiency of the evidence supporting the ALJ's decision regarding causation/cumulative trauma, total disability, and onset date of the compensable disability period. Pine Branch opines that Dr. Burke's report was unreliable and emphasizes that Dr. Primm attributed Hensley's complaints to age-related changes rather than his work operating heavy equipment.

         KRS 342.0011(1) defines a compensable injury as being "any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings." The statute also defines "[o]bjective medical findings" as "information gained through direct observation and testing of the patient applying objective or standardized methods[.]" KRS 342.0011(33). In Staples, Inc. v. Konvelski, 56 S.W.3d 412, 415-16 (Ky. 2001), the Kentucky Supreme Court advised that, although the statute requires objective medical findings to prove a harmful change, such objective medical findings are not necessary to establish causation.

         In this case, the ALJ weighed the conflicting medical opinions of Dr. Primm and Dr. Burke. Following an examination, Dr. Primm assessed mild age-related low back pain, and he believed Hensley retained the capacity to return to his regular work. In contrast, Dr. Burke observed that Hensley was not capable of heel or toe raising and had limited extension and flexion due to ongoing back spasm. Dr. Burke diagnosed a repetitive loading strain injury to Hensley's lumbosacral spine with left-sided radiating pain. Dr. Burke opined Hensley's injury resulted from cumulative trauma sustained while performing his job as a heavy equipment operator, noting that Hensley experienced repetitive vertical and lateral movement inside the end loader throughout a twelve-hour shift. Further, in his own testimony, Hensley credibly described the operation of the end loader as rough, with constant jarring and jolting of his body.

         Although Pine Branch is dissatisfied with the ALJ's assessment of the evidence, the ALJ had "the authority to determine the quality, character and substance of the evidence[, ]" Burkhardt, 695 S.W.2d at 419, and she was free "to believe part of the evidence and disbelieve other parts of the evidence . . . ." Caudill, 560 S.W.2d at 16. The ALJ weighed the conflicting evidence and found Dr. Burke's medical opinion and Hensley's lay testimony to be the most credible; accordingly, we conclude ...


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