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Transportation Cabinet and Gab v. McGaughey12/18/2003
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
NOT TO BE PUBLISHED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
The Workers' Compensation Board (Board) and the Court of Appeals affirmed an award of benefits for permanent total disability at the reopening of the claim for a 1992 back injury. In doing so, they rejected an argument that the ALJ erred by failing to apply the December 12, 1996, version of KRS 342.125(1). We affirm.
The claimant was born in 1943. He left school at age 15 to work on his father's farm and had a history of medium to heavy labor. He began working for the defendant employer in 1987 and has been a rest area foreman since 1990. In October, 1992, he sustained low back and neck injuries while working. He settled the claim in October, 1994, for a lump sum that represented a 5% occupational disability, apportioned equally between the employer and the Special Fund.
A subsequent claim alleged that in August, 1998, the claimant injured his lower back while picking up a lawn mower. In taking proof with respect to that claim, the employer produced evidence from Dr. Zerga that the 1998 incident caused only a temporary worsening of the claimant's condition and no permanent impairment. On that basis, the employer moved to join the Special Fund, asserting that the new claim should be treated as a motion to reopen the 1992 claim and also should be subject to the December 12, 1996, amendment to KRS 342.125(1)(d).
The employer's witness list and stipulations, filed shortly before the November 10, 2000, benefit review conference summarize medical testimony taken in the 1992 claim. Dr. Crocklin was one of the physicians whose testimony was summarized and the only one who assessed an impairment rating at the time. He examined the claimant on July 26, 1994, with regard to the 1992 injury and reviewed various medical records.
He diagnosed chronic lower back strain and indicated that the 1992 incident contributed to the condition. Dr. Crocklin assigned an 8% whole-person impairment and testified that the AMA Guides permitted an 8% rating to be rounded up to 10%; however, on cross-examination, he stated that he would change the impairment from 8% to 7%.
Shortly after the witness list was filed, the claimant moved to reopen the 1992 claim, to consolidate it with the 1998 claim, and to join the Special Fund. The motion to reopen was accompanied by the claimant's affidavit which indicated that he worked within his restrictions after the 1992 injury and that his symptoms intensified after the 1998 incident. The affidavit stated that he returned to work after the 1998 incident, but that in May, 2000, Dr. Ballard increased his restrictions. His employer sent him home because it had no work that complied with his restrictions, and he has not worked since then. Also accompanying the motion was a September 28, 2000, medical report from Dr. Stewart. In the report, Dr. Stewart summarized the claimant's medical treatment following the 1998 injury and diagnosed multi-level low back radiculopathy, worse on the left side; mechanical low back pain; and degenerative joint disease, more pronounced on the weight-bearing joints. Dr. Stewart assigned a 10% AMA impairment and imposed various work restrictions.
The employer's response indicated that it did not object to the motion to reopen the 1992 injury claim and to consolidate it with the claim for the 1998 injury. Ultimately, the ALJ joined
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