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Daniels v. B.R. & D. Enterprises7/29/2005
AFFIRMING
BEFORE: BARBER, KNOPF, AND SCHRODER, JUDGES.
Randall Daniels petitions for review of an opinion of the Workers' Compensation Board which affirmed a decision of the Administrative Law Judge finding that Daniels' claim against Lone Mountain Processing was barred by KRS 342.165(2) due to the falsification of an application for employment. We agree with the Board that there was a causal connection between the false representation and the subsequent injury, hence, we affirm.
On September 8, 1998, in the course of his employment with B.R. & D. Enterprises ("B.R. & D."), Daniels injured his lower back when trying to move a large rock with a pry bar. Daniels was diagnosed with lumbar strain by neurosurgeon Dr. James Bean on September 28, 1998. Daniels received temporary total disability benefits for 3 1/2 weeks, and returned to his employment with B.R. & D. On November 16, 1998, Dr. Bean reviewed an MRI which showed degenerative disc disease at L5-S1 without a herniation. As of December 7, 1998, Daniels reported continued pain in his back and left leg. Daniels' final follow-up visit with Dr. Bean was on March 1, 1999, at which time Daniels reported experiencing back pain with lifting and shoveling. Dr. Bean assessed Daniels at maximum medical improvement, retaining a 5% functional impairment. Daniels settled his workers' compensation claim arising out of this accident on July 1, 1999, on the basis of a 5% functional impairment.
Daniels continued to work for B.R. & D. until October 2001, when he was hired by Lone Mountain Processing (Lone Mountain). As part of the hiring process with Lone Mountain, Daniels was required to undergo a physical examination and complete a medical history questionnaire. On this questionnaire, Daniels answered "No" to questions which included whether he ever had or has now a back injury or back pain; if he had ever filed a compensation claim or received benefits as a result of an industrial injury or disease; if he had any physical complaints or disabilities at the present time; and if he had ever consulted or been treated by physicians within the past five years. Based on the physical examination and review of the medical questionnaire, Daniels was approved for work without restrictions.
On June 11, 2002, while pulling on a miner cable, Daniels felt a sharp pain in his back and hips. Daniels was treated on June 12, 2002, at the emergency room and subsequently by Dr. LeFeuvre, who diagnosed him with acute chronic lumbar sprain. Daniels was eventually referred back to Dr. Bean. Dr. Bean saw Daniels on August 5, 2002, at which time Daniels reported back pain which had begun on June 11, 2002 while hanging a miner cable. Dr. Bean ordered a new MRI which, in a note dated August 19, 2002, he reported as showing degenerative disc at L5-S1 with no evidence of disc herniation. Dr. Bean stated that this was the same finding at L5-S1 as seen in 1998. Dr. Bean also stated Daniels "has a new injury preceding a chronic degenerative disk. This is 50% preexistant / 50% new." As of September 16, 2002, Dr. Bean assessed Daniels at maximum medical improvement with a 7% impairment rating.
Daniels filed a claim and Lone Mountain resisted, contending that Daniels willfully made a false representation as to his physical condition or medical condition on his application and that his claim is barred under KRS 342.165(2).
In an opinion and order entered March 26, 2004, the ALJ found, in pertinent part:
Having reviewed the totality of the lay and medical evidence contained in the record in Mr. Daniels' claim against Lone Mountain Processing, it is the finding of the Administrative La
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