 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Napier v. Whitaker Coal Corp.12/18/2003
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
NOT TO BE PUBLISHED
MEMORANDUM OPINION OF THE COURT AFFIRMING
After settling his back injury claim for a 50% occupational disability, the claimant was permitted to reopen and received an additional 10% disability. Although he maintained on appeal that uncontradicted medical evidence compelled an award of total disability at reopening, the award was affirmed by the Workers' Compensation Board (Board) and a majority of the Court of Appeals panel. We affirm.
The claimant was born in 1954 and has a twelfth-grade education as well as specialized training in auto mechanics, plumbing, and mine technology. He worked for the defendant-employer as an underground coal miner. In April, 1994, he had an episode of back pain while shoveling coal but missed no work due to the incident. On July 25, 1994, the cart that he was riding into the mine jumped the track, jolting him and injuring his back. When deposed, the claimant testified that he did not think he could return to his former job due to back pain and trouble walking. He later settled the claim for a 50% occupational disability, and the agreement was approved on November 21, 1995. The claimant did not return to any type of work after the accident. On December 11, 2000, he filed a motion to reopen, alleging that a worsening of his physical condition had caused an increase in his occupational disability. The motion was granted, and the parties proceeded to take proof.
At reopening, the claimant testified that his pain had increased since the settlement, that it was exacerbated by activity, and that it prevented him from engaging in some of his former activities. In 2000, he sought treatment by Dr. Reasor, a pain specialist. The claimant testified that he experienced more severe back pain and numbness in the left leg. Questioned about a 1996 automobile accident, he testified that although the primary injury was to his neck, the accident also aggravated his back pain. He indicated that the pain was present daily; that it was very severe on the average of twice each week; and that he took Tylox, Lortab 10, and Xanax. He testified that although he had thought he would return to work after the settlement, his employer had terminated the employment. He indicated that he had not looked for work since the settlement was approved.
Rodney Valentine, the employer's human resources manager, testified in the initial claim. He indicated that no jobs were available within the claimant's restrictions but that the employer was willing to make reasonable accommodations to enable him to continue working. Valentine also indicated, however, that the employer terminated operations on March 30, 1995, at which time all employees were laid off.
In January, 1995, Dr. Morgan examined the claimant and reviewed the medical records with respect to the initial claim. At that time, the claimant complained of back pain that radiated to the right hip and leg. Physical examination revealed a reduced range of motion, tight hamstrings, and some positive straight leg raising. Diagnostics revealed degenerative disc disease in the lower lumbar spine without evidence of a herniated disc. Dr. Morgan indicated that the claimant was at maximum medical improvement and that he could not return to work doing any heavy lifting, prolonged crawling, squatting, or lifting more than 20 pounds.
Dr. Gilbert testified that he first saw the claimant on October
Page 1 2 3 4 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|