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Napier v. Whitaker Coal Corp.12/18/2003
26, 1994, at which time he diagnosed a permanent soft tissue injury. He treated it with prescription medication and work conditioning. In 1995, he assigned a 7% impairment rating and restricted the claimant from lifting more than 10 pounds; from sitting or standing less than 15-20 minutes ; and from bending, stooping, crouching, crawling, or operating heavy equipment.
Medical records that were introduced at reopening indicated that after the 1996 automobile accident, Dr. Gilbert diagnosed low back pain with a possible ruptured disc. They also indicated that the claimant continued to have increased low back pain in 1997 and 1998. As of May 7, 2001, Dr. Gilbert indicated that he had last seen the claimant on November 1, 1999. At that time, his diagnoses included degenerative disc disease at L4-L5 and L5-S1, lumbar sprain/strain syndrome, muscle spasms, nerve root injury syndrome, insomnia, and numbness and tingling in the left leg. In his opinion, the increased pain and muscle spasms in the claimant's back and leg showed a worsening of his condition since the settlement. Dr. Gilbert found no evidence of symptom magnification or malingering. He assigned a 21 % AMA impairment and restricted the claimant from lifting more than 10 pounds; from walking, standing, or sitting for more than 30 minutes; from bending, climbing, reaching, grasping, or operating machinery. In his opinion, the claimant did not have the physical capacity to return to the type of work performed at the time of the injury. In Dr. Gilbert's opinion, a worsening of the work-related low back injury was the cause of the claimant's present complaints, independent of any disability that a 1997 neck injury may have caused.
Dr. Reasor, an anesthesiologist/pain management specialist, first saw the claimant on January 5, 2000. He noted a history that included the work-related accident but did not include the 1994 episode of back pain or the 1996 automobile accident. Physical examination revealed tenderness over the spinous processes from L-3 to S1 with a reduced range of motion. Dr. Reasor diagnosed degenerative lumbar disc disease with lumbar facet arthopathy and prescribed lumbar facet injections. When questioned concerning the cause of the conditions, he testified that the claimant may have had some pre-existing problems that were exacerbated by the injury and that, in the absence of the 1994 MRIs, he could not determine what changes had occurred since then. In his opinion, the claimant's pain had been progressive. When Dr. Reasor last examined the claimant on February 26, 2001, he complained of pain and difficulty sitting ; therefore, Dr. Reasor recommended a discogram to determine the source of the pain.
After reviewing the lay and medical evidence, the ALJ determined that the claimant's actual disability at settlement was 50%. Noting the higher impairment rating and increased pain at reopening, the ALJ determined that the claimant's occupational disability had increased due to a worsening of his condition after the settlement. Rejecting the claimant's argument that he was totally disabled, the ALJ determined that when his age, education, and work experience were taken into account, the increased pain and restrictions warranted a finding that his present occupational disability was 60% under the principles of Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). Furthermore, noting that the claimant was able to work full time and without restrictions up until July 25, 1994, the ALJ determined that there was no prior active disability due to the incident while shoveling coal.
The claimant petitioned for reconsideration, maintaining that the uncontradicted testimony of Drs. Gilbert and Reasor established that he was pe
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