JERRY W. HILL V. SEXTET MINING CORPORATION; J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD and SEXTET MINING CORPORATION V. JERRY W. HILL; J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: NOVEMBE&/31,2001
JERRY W. HILL
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V.
APPEAL FROM COURT OF APPE&d
2000-CA-0597-WC
WORKERS’ COMPENSATION BOARD NO. 98-83394
SEXTET MINING CORPORATION;
J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
and
2000-SC-I 122-WC
SEXTET MINING CORPORATION
V.
APPELLEES
APPELLANT
APPEAL FROM COURT OF APPEALS
2000-CA-0597-WC
WORKERS’ COMPENSATION BOARD NO. 98-83394
JERRY W. HILL; J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING
On September 14, 1998, the claimant alleged that he was totally disabled either
by injuries that occurred in 1997 and 1998, or by cumulative trauma to his neck and
back from 26 years of working in low coal. An Administrative Law Judge (ALJ)
subsequently determined that the low back and cervical spine conditions were
substantially caused by the claimant’s employment, that they resulted in total disability,
and that the disability became manifest on February 11, 1998. The employer then
appealed.
Noting that the claimant gave notice of specific incidents when he injured his
neck but failed to notify the employer after the disabling reality of his injury became
manifest, a majority of the Workers’ Compensation Board (Board) reversed the finding
that notice of the injury was timely and also remanded for the ALJ to consider the effect
of the claimant’s pre-existing spondylolisthesis on the extent to which the disability from
his back injury was compensable. The Court of Appeals vacated and remanded for
further findings with regard to the notice issue but adopted the Board’s analysis with
regard to the pre-existing condition. Both the claimant and the employer appeal.
On February 11, 1998, while attempting to twist and throw a miner cable out of
some mud, the claimant felt pain across his back and “went down.” He testified that he
had sustained numerous incidents of trauma to his spine in the course of his work,
including one on February 22, 1997. He had always been able to return to work
although he did have some problems with his back over the years and had been treated
by several physicians at the Trover Clinic. The record indicates that he sought
treatment there on February 12, 1998, complaining of lumbosacral pain and, within
days, also complaining of cervical pain. He testified that he had been unable to return
to work since the incident of February 11, 1998, but that until then he was very
physically active both in the course of his work and in his private life. He ran as many
as 20 miles per week, played basketball with his daughters, and worked out regularly at
the local YMCA. Since then, he had been unable to do exercise that affected his lower
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back.
The ALJ’s opinion recited the course of treatment by Drs. Bowles, Coladonato,
and Donnelly of the Trover Clinic, none of whom attributed an impairment rating to the
February 11, 1998 incident or to the claimant’s employment, Although some of the
treating physicians thought that the claimant should not continue to work in mining and
told him so at various times when he sought treatment, there is no indication that any
attributed the development of the degenerative condition, itself, to his work.
The opinion also recited the results of a March, 1999, evaluation by Dr. Laughlin,
who testified on behalf of the employer and attributed no harmful change to the 1997 or
1998 incidents. Although admitting that coal mining does tend to accelerate the
degenerative process, causing the development of degenerative disc disease and spinal
stenosis, Dr. Laughlin attributed the claimant’s degenerative problems to the natural
aging process.
In concluding that the claimant sustained a gradual injury, the ALJ chose to rely
upon an independent medical evaluation that was conducted by Dr. Gaw. Dr. Gaw
examined the claimant on August 13, 1998, and reviewed the MRls, x-rays, and notes
of Drs. Bowles and Coladonato. Among other conditions, he diagnosed degenerative
cervical and lumbar disc disease and grade 1 or 2 spondylolisthesis at L5 with left
radiculopathy. He testified that the degenerative condition was present as early as
1992 but that because the claimant always returned to an asymptomatic state after
periodic flare-ups, had missed work for no more than a few weeks in the past 7-8 years,
and was able to run long distances, he did not consider the condition to be active or
disabling until after the February 11, 1998, incident. In his opinion, the repetitive insults
to the claimant’s neck and back from his work as a coal miner had caused a cumulative
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trauma injury to his spine, aggravating and accelerating both his degenerative problems
and the spondylolisthesis.
Dr. Gaw indicated that the spondylolisthesis was the claimant’s “biggest problem”
and that it had existed as early as 1995.’ As a preventative measure, he would have
recommended at that time that the claimant not lift more than 40-50 pounds and would
have advised him to do work that allowed him to change positions frequently. Noting
that the claimant was working and active up until February, 1998, Dr. Gaw viewed the
previous episodes of back pain as being no more than temporary exacerbations of
symptoms of the ongoing spondylolisthesis and degenerative disc disease, and he
characterized the conditions as being dormant and nondisabling before that time.
Whereas, after February, 1998, the conditions were active and disabling.
Using the DRE model, Dr. Gaw assigned a 5% AMA impairment for the cervical
condition and a 25% impairment for the lumbar condition, resulting in a combined
impairment of 29% under the combined values table. When asked how he had derived
the lumbar impairment, he explained that he had assigned 7% for spondylolisthesis,
14% for loss of range of motion, and 5% for radiculopathy and that the ratings combined
to yield a 25% impairment. On cross-examination, he testified that grade 2
spondylolisthesis, by itself, would warrant a 5-20% impairment rating but that no one
had actually performed the flexion/extension x-rays that were necessary in order to
determine the appropriate rating for that condition.
As amended effective December 12, 1996, KRS 342.0011(l) defines a
compensable injury as being a traumatic event or series of events, including cumulative
‘Spondylolisthesis is the forward movement of the body of one of the lower
lumbar vertebrae on the vertebra below it or on the sacrum.
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trauma, that proximately causes a harmful change in the human organism. Although
the claimant notified the employer of at least some of the instances in which he bumped
his head, it was not until he filed his claim on September 14, 1998, that he informed the
employer of the alternative claim for a gradual injury. Notice of a work-related injury
may be given in the context of filing a claim, but such notice may or may not be timely
depending on the circumstances. See Smith v. Cardinal Construction Co., 13 S.W.3d
623 (2000); Peabody Coal Co. v. Powell, Ky., 351 S.W.2d 172 (1961). Here, the ALJ
relied upon Dr. Gaw’s testimony, determined that the claimant sustained a gradual injury
to his cervical and lumbar spine from the whole of his employment as a coal miner,
pointed to the notice of specific instances of trauma, and determined that the claimant
gave timely notice of the gradual injury.
Implicit in the finding of a gradual injury was a finding that no one instance of
workplace trauma, including those specifically alleged and those of which the employer
was notified, caused an injury of appreciable proportion. Instead, the ALJ concluded
that the harmful change that gave rise to the claimant’s permanent disability occurred
gradually and resulted, at least to a significant extent, from the effect of work-related
wear and tear during the course of his coal mine employment. Medical causation is a
matter for the medical experts and, therefore, the claimant cannot be expected to have
self-diagnosed the cause of the harmful change to his cervical spine as being a gradual
injury versus a specific traumatic event. He was not required to give notice that he had
sustained a work-related gradual injury to his spine until he was informed of that fact.
See Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96 (1999); Special Fund v. Clark, Ky.,
998 S.W.2d 487 (1999).
It is clear that the claimant was aware of symptoms in his cervical spine and
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I.
.
associated the periodic flare-up of symptoms with his work long before being evaluated
by Dr. Gaw, and he also sought medical treatment after some specific incidents of
cervical trauma. Furthermore, it is clear that the physicians who treated the claimant’s
symptoms over the years had encouraged him to quit working in the mines and had told
him that the work was too stressful. Nonetheless, there is no indication that any of them
ever informed him of his work-related gradual injury, i.e., that his work was gradually
causing harmful changes to his spine that were permanent. Under those
circumstances, we are not persuaded that the claimant was required to self-diagnose
the cause of the cervical pain that contributed to his inability to work after February 11,
1998, as being such an injury. On August 13, 1998, Dr. Gaw became the first physician
to determine that the claimant’s work over the years had accelerated the development
of the degenerative condition in his cervical and lumbar spine and had aroused the preexisting spondylolisthesis into disabling reality. This was the first time that a physician
had diagnosed a gradual work-related injury. It is not clear whether the claimant was
informed of that fact on the date of the exam or later, but he notified the employer of the
gradual injury when his claim was filed one month later. We conclude, therefore, that
substantial evidence supported the finding that the claimant gave timely notice of the
gradual injury to his cervical spine. For that reason and although the ALJ’s reasoning
was different from our own, the finding should not have been reversed on appeal.
The employer has asserted that the impairment due to the preexisting
spondylolisthesis should have been excluded when the ALJ determined that the
claimant was totally disabled, pointing out that KRS 342.730(l) explicitly forbids a
consideration of nonwork-related impairment when determining whether a worker is
totally disabled. It emphasizes that uncontradicted medical evidence established that
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the condition accounted for a significant functional impairment before February 11,
1998, and that even Dr. Gaw conceded that the condition was not work-related and that
it had not progressed since 1992. The employer concludes, therefore, that the claim
must be remanded so that the degree of impairment that existed prior to the
compensable injury can be excluded from the award. We disagree.
KRS 342.730(
1 )(a) provides, in pertinent part, as follows:
Nonwork-related impairment and conditions compensable under KRS
342.732 and hearing loss covered in KRS 342.7305 shall not be
considered in determining whether the employee is totally disabled for the
purposes of this section.
As effective December 12, 1996, KRS 342.001 I(1 l)(c) indicates that a finding of total
disability requires a permanent disability rating and a complete inability to work as a
result of an injury. KRS 342.001 l(36) indicates that in order to have a permanent
disability rating, a worker must have an AMA impairment. Although permanent partial
disability is now measured in terms of a worker’s impairment and the appropriate
statutory factor, in Ira A. Watson Dent. Store v. Hamilton, Ky., 34 S.W.3d 48 (2000), we
determined that KRS 342.001 I(1 l)(c) and KRS 342.730(1)(a) permit a consideration of
some of the factors that were set forth in Osborne v. Johnson, Ky., 432 S.W.2d 800
(1968) as well as the worker’s AMA impairment when determining whether the worker
is totally disabled. Long ago, we determined that to the extent that a dormant
degenerative condition, itself, is proximately caused by work, the condition is an injury.
See Havcraft v. Corhart Refractories, Ky., 544 S.W.2d 222, 225 (1976). That principle
remains viable under the 1996 amendments. Furthermore, after the Court of Appeals
decided the instant case, we determined that although the Special Fund no longer is a
party in workers’ compensation claims, disability that results from the arousal of a prior
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dormant condition by a work-related injury remains compensable under the 1996 Act.
McNutt Construction/First General Services v. Scott, Ky., 40 S.W.3d 854, 859 (2001).
We conclude that in order for a worker to receive income benefits for a workrelated harmful change under KRS 342.730(1
)(a), the harmful change must warrant an
AMA impairment, and the worker must have a complete and permanent inability to work
due to one or more work-related harmful changes other than coal workers’
pneumoconiosis or hearing loss. Furthermore, a worker who has sustained both
compensable and noncompensable disability is entitled to receive income benefits for
the full extent to which compensable, work-related harmful change causes a complete
inability to work. See International Harvester Co. v. Poff, Ky., 331 S.W.2d 712 (1959).
Therefore, a worker with an AMA impairment from a nonwork-related condition who
sustains a work-related injury may receive income benefits for total disability if there is
substantial evidence that the work-related harmful change, by itself, is sufficient to
cause an AMA impairment and to cause the worker to be unable to perform any work.
In the instant case, Dr. Gaw testified that the wear and tear of the claimant’s work
accelerated the development of his degenerative disc disease and caused it to become
disabling. He also indicated that it aroused the pre-existing spondylolisthesis into
disabling reality, specifically pointing to the left leg pain that was caused by a pinched or
irritated nerve and that began after February 11, 1998. He assigned a combined AMA
impairment of 29%. The ALJ determined that the claimant sustained a gradual, workrelated injury and did not have a pre-existing active occupational disability. Although
recognizing that a finding of active disability is not precluded simply because an
individual continues to work, the ALJ pointed out that the claimant was performing
arduous manual labor in underground mining on a regular basis, that he often ran 20
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miles per week, and that less than a year before his gradual injury became manifest he
had run in a 7 mile competitive race. Furthermore, ALJ pointed to Dr. Gaw’s testimony
that although the claimant had several flare-ups of back pain between 1992 and 1998,
he had returned to an asymptomatic state in short order. The ALJ concluded, therefore,
that neither the spondylolisthesis nor a 1987 knee injury caused an ongoing, active
disability and that the claimant was entitled to income benefits for total disability.
Having reviewed the evidence and the ALJ’s findings, we are persuaded that
there is no indication that nonwork-related impairment was considered when the ALJ
determined that the claimant was totally disabled and entitled to an award under
KRS 342.730(1)(a). Furthermore, although the decision was made without the benefit
of our subsequent interpretations of the 1996 Act, there was substantial evidence that
work-related harmful changes, by themselves, were sufficient to cause an AMA
impairment and to render the claimant unable to perform any work. Under those
circumstances, the ALJ’s refusal to exclude prior, active disability on these facts should
not have been disturbed on appeal.
The decision of the Court of Appeals is hereby reversed, and the decision of the
ALJ is reinstated.
All concur
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COUNSEL FOR JERRY W. HILL:
Randall Hardesty
Mitchell, Joiner & Hardesty, P.S.C.
113 East Center Street
P. 0. Drawer 659
Madisonville, KY 42431
COUNSEL FOR SEXTET MINING:
Samuel J. Bach
John C. Morton
Morton & Bach
126 North Main Street
P. 0. Box 883
Henderson, KY 42419-0883
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2000-SC-1094-WC
JERRY W. HILL
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2000-CA-0597-WC
WORKERS’ COMPENSATION BOARD NO. 98-83394
SEXTET MINING CORPORATION;
J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
AND
2000-SC-I 122-WC
APPELLANT
SEXTET MINING CORPORATION
V.
APPELLEES
APPEAL FROM COURT OF APPEALS
2000-CA-0597-WC
WORKERS’ COMPENSATION BOARD NO. 98-83394
JERRY W. HILL; J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
ORDER
Sextet Mining Corporation’s Petition for Rehearing is DENIED.
All concur.
Entered: February 21, 2002.
APPELLEES
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