SIDNEY COAL COMPANY V. CHARLES FINLEY ; HON . DONALD G . SMITH, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : September 18, 2003
NOT TO BE PUBLISHED
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SIDNEY COAL COMPANY
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-0968-WC
WORKERS' COMPENSATION BOARD NO . 00-85213
CHARLES FINLEY ; HON . DONALD G .
SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Despite the claimant's testimony that he quit working due to prior back injuries,
an Administrative Law Judge (ALJ) determined that his leg injury was a reason that he
lacked the physical capacity to return to his previous employment and enhanced his
income benefits under KRS 342 .730(1)(c)1 . Although the employer maintained that the
decision to enhance the claimant's award was not supported by the evidence, the
Board and the Court of Appeals affirmed . Finding no error in the decision, we affirm.
The claimant was employed in the coal mining industry. He was a certified mine
foreman and was employed by the defendant-employer in August, 1999, to operate a
roof bolter. Later, he worked as a section foreman . On September 15, 1999, he
injured his back while moving a miner cable . He missed approximately two weeks of
work before returning to his regular duties . On April 3, 2000, he re-injured his back
while lifting a roof bolt, and his employer placed him on light duty until April 25, 2000, at
which time he was taken off work altogether. He received temporary total disability
(TTD) benefits from April 25 through June 18, 2000, when his physician released him to
return to work without restrictions . On September 14, 2000, he fractured his left distal
tibia while working and received TTD benefits from September 14, 2000, through
January 3, 2001 .
In April, 2001, the claimant returned to work with a different mining company but
was laid off shortly thereafter and received unemployment benefits . He later testified
that although the company called him back to work, he declined the offer due to the
effects of his injuries . He indicated that he had not returned to work since the layoff
and had applied for social security disability as well as workers' compensation benefits .
As amended during litigation, the claimant's application for benefits included the
1999 and 2000 back and leg injuries. After determining that the claimant was not totally
disabled, the AU relied upon Dr. Rapier's testimony and awarded permanent partial
disability benefits based upon a 5% impairment to the back and a 4% impairment to the
leg . Both awards were enhanced under KRS 342.730(1)(c)1 on the basis of findings
that the claimant did not retain the physical capacity to return to his previous work .
The employer petitioned for reconsideration, maintaining that the award for the
leg injury should not have been enhanced . The employer also requested findings of
fact and conclusions of law concerning the applicability of KRS 342 .730(1)(c)2, which
would have reduced the award for the 2000 back injury during the period from June 18,
2000, through September 18, 2000, when the claimant worked and received his full
wage . The petition was overruled . Relying upon Dr. Rapier, the ALJ inferred that the
physician attributed the claimant's present condition to the effects of both the leg and
back injuries . Although the decision indicated that the multipliers used in the award
were correct, it did not address the applicability of KRS 342 .730(1)(c)2 .
Appealing to the Board, the employer again raised the questions that it had
raised in its petition for reconsideration . Although the Board reversed and remanded
with directions to address the applicability of KRS 342.730(1)(c)2, it affirmed the
decision to enhance the award for the leg injury. The Court of Appeals affirmed, and
this appeal by the employer followed .
Only the application of KRS 342.730(1)(c)1 to the award for the leg injury
remains at issue . The version in effect at the time of the injury provides as follows :
If, due to an injury, an employee does not retain the physical capacity to
return to the type of work that the employee performed at the time of
injury, the benefit for permanent partial disability shall be multiplied by
three (3) times the amount otherwise determined under paragraph (b) of
this subsection, but this provision shall not be construed so as to extend
the duration of payments.
The employer points to the claimant's testimony that he quit working due to the effects
of his back injury and his failure to mention the leg injury as a cause of his decision to
do so .
On that basis, the employer maintains that because the leg injury did not
contribute to his decision to quit working, the award for the injury should not have been
enhanced .
Just as a worker's testimony concerning the cause of his inability to continue
working will not compel a decision in his favor, it will not compel a decision to the
contrary in the face of persuasive medical evidence . See Grider Hill Dock v. Sloan , Ky .,
448 S.W .2d 373 (1969) . Dr. Rapier assigned a 4% impairment to the leg injury and
reported evidence of atrophy in the left calf and thigh . He indicated an awareness of
the physical requirements of the claimant's work and indicated that, due to his medical
conditions, he no longer retained the physical capacity to return to the work that he
performed when he was injured. Under those circumstances, substantial evidence
supported the decision to apply the multiplier found in KRS 342 .730(1)(c)1 to the award
for the leg injury .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT:
A. Stuart Bennett
Jackson Kelly PLLC
P .O . Box 2150
Lexington, KY 40588
COUNSEL FOR APPELLEE:
Randy G . Clark
Clark & Johnson
P .O . Box 1529
Pikeville, KY 41502
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