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Kentucky River Enterprises6/28/2002
AFFIRMING
Kentucky River Enterprises, Inc. appeals from a Workers' Compensation Board opinion that affirmed an administrative law judge's opinion and award finding that Jerry Elkins suffered a work- related injury , awarding him permanent partial disability benefits based on a 9.5% functional impairment and multiplying his weekly benefit by three pursuant to Kentucky Revised Statutes (KRS) 342.730(1)(c)(1) as he cannot return to the type of work he was performing at the time of the injury. On appeal, Kentucky River argues that the evidence does not support the finding that a work-related injury occurred, that the ALJ erred in relying upon an impairment rating that is not based on the Diagnostic Related Estimates (DRE) Model in the American Medical Association (AMA) Guides and that the ALJ improperly applied the times three multiplier as Elkins returned to work at a wage equal to or greater than his wage at the time of the injury.
Elkins earned an associate degree from Southeast Community College and also has a commercial driver's license (CDL). His employment history includes fourteen years of experience as a truck driver, twelve of which were spent operating a coal truck. Elkins began his employment with Kentucky River as a coal truck driver on January 1, 1996. At the time of the alleged injury , he was working as a mechanic and heavy equipment operator. On September 8, 2000, he was working in that capacity when he felt pain in his lower back and a tingling sensation in his left leg while servicing a large truck with another employee. Specifically, he was carrying a five-gallon can of oil to the truck at the time. Although Elkins completed his shift, his fellow employee, Benny Bentley, performed the remainder of the required lifting.
According to Elkins, he informed his supervisor of the incident that day. On the following Sunday, he called his employer and explained that he could not return to work due to his back injury . Elkins ultimately underwent low back surgery which was performed by Dr. Mukut Sharma, an orthopedic surgeon. On December 6, 2000, Elkins returned to work in a supervisory capacity and, at the time of the hearing, he continued to earn a wage equal to his preinjury wage.
Elkins testified both by deposition and at the hearing. In his testimony, he indicated that he continues to experience pain in his lower back and left leg. He does not believe that he is able to return to his prior employment. Elkins previously suffered a lower back injury while changing a tire on a tractor-trailer in 1989. He underwent surgery on his lower back in November 1990. While he acknowledges that he continued to have difficulties with his back following that procedure, he was last seen for medical treatment of those injuries in late 1991. According to Elkins, his lower back pain was resolved and he continued to work without further difficulty until his most recent injury .
In the opinion which prompted the present appeal, the Board accurately summarized the lay and medical testimony as follows:
In support of his claim, Elkins submitted testimony from Dr. Mukut Sharma, his treating orthopedic surgeon. Dr. Sharma began treating Elkins on September 14, 2000. In his records from the initial visit, Dr. Sharma indicated Elkins reported having low back pain for approximately five weeks and denied any recent injury. The doctor stated that after a conversation with Elkins on November 7, 2000, he amended his report to reflect that Elkins indicated a history of five days of low back pain on the initial visit. Dr. Sharma diagnosed a herniated disc at L5-S1 with degenerative changes at L4-L5. He performed a discectomy on Elkins on October 25, 2000. H
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