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Big Fist Coal Co. v. O'Quinn5/30/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Big Fist Coal Company petitions for review of an opinion by the Workers' Compensation Board (Board) affirming an opinion and award by an administrative law judge (ALJ) that awarded benefits to Ferrell O'Quinn based on a finding that he was permanently and totally occupationally disabled. We affirm.
On January 23, 1988, O'Quinn injured his low back while in the course and scope of his employment with Big Fist.
In an opinion and award rendered on April 18, 1989, O'Quinn was awarded benefits based on a 60% permanent partial disability. Liability was equally apportioned between Big Fist and the Special Fund (now Workers' Compensation Funds).
O'Quinn reentered the work force with Eastern Coal Company as a shuttle car operator in January 1991. In the course and scope of his employment with Eastern, he suffered exacerbations of his previous back injury , first on September 7, 1991, and again on August 23, 1992. O'Quinn was still temporarily totally disabled as a result of the last exacerbation when Eastern shut down its operation and laid off its employees in January 1993.
O'Quinn filed a consolidated claim for benefits against Eastern as a result of the September 1991 and August 1992 injuries and joined that claim with a reopening of his 1988 claim against Big Fist. In a decision rendered September 30, 1994, by an ALJ, it was found that the September 1991 and August 1992 incidents at Eastern produced no permanent injury or impairment but merely exacerbated O'Quinn's pre-existing back condition attributable to the 1988 injury with Big Fist. It was further found that O'Quinn had not experienced a worsening of condition or increase in occupational disability from the date of the opinion issued in the original claim for injury against Big Fist. Thus, O'Quinn was awarded temporary total disability benefits related to the exacerbations, but the remainder of his claim was dismissed.
O'Quinn was never able to return to the work force for any extended period of time after the August 1992 exacerbation and permanent lay off from Eastern. However, he did work on a temporary basis at different times doing light carpentry and electrical work. O'Quinn last worked in 1996, and he received a Social Security disability award in 1998 that was backdated to August 1, 1996. He has not looked for employment since that time. In addition to a worsening of his low back pain and increase of symptoms in his lower extremities, O'Quinn also experienced psychiatric problems. He stated that these problems came on subsequent to the August 1992 injury and his realization that he would be unable to perform the kind of work he had done in the past and that his family would suffer financially.
In addition to the work injuries, O'Quinn suffered an acute exacerbation of his low back pain in 1998 while helping his wife plant flowers. An MRI performed on September 3, 1998, showed a large herniated disc at L5-S1 on the right.
On January 24, 2001, O'Quinn was permitted to reopen his claim for purposes of securing an increase in income benefits. The case was assigned to an ALJ for the taking of proof, and a hearing was held on March 4, 2002. O'Quinn testified by deposition and at the final hearing, and the parties submitted medical proof in the form of records from the VA Hospital and reports from Dr. Michael Lyons, Dr. K. D. Gibson, Dr. Joseph Rapier, Dr. O.M. Patrick, Dr. Robert Goodman, and Dr. Richard Sheridan. Further, reports from Phil Pack, a psychologist, from Dr. David Shraberg, a neuropsychiatrist, and from Dr. Ralph Crystal, a vocational evaluator, were submitted.
The ALJ issued an
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