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Saylor v. Manalapan Mining Co.2/17/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from a decision of the Court of Appeals which upheld the Workers' Compensation Board in affirming the decision of the Administrative Law Judge which dismissed Saylor's claim for benefits.
The questions presented by Saylor are whether the Triangle Insulation and Sheet Metal Co. v. Stratemeyer, 782 S.W.2d 628 (Ky. 1990) decision was correctly applied; whether a finding that a claimant was properly entitled to temporary total disability benefits from an injury is consistent with a ruling that the claimant did not sustain an injury of appreciable proportions; and whether the Board made additional findings on appeal when it made its interpretation of the ALJ decision to find that it "believed" that the ALJ was following the Stratemeyer case.
Saylor, now 37 years of age, claims that he sustained an injury to his low back while doing heavy lifting at his employment with the Manalapan Mining Company on December 4, 2001. Saylor had worked at various laboring jobs since entering the work force as a laborer in a food processing plant, later he became a beltman in an underground coal mine, and finally was hired by Manalapan as a roof bolter. He obtained his miner foreman certificate and was a general foreman for the last five years of his employment. In his deposition, Saylor testified that he had suffered prior low back injuries, particularly in 1999, when he was pulling a cable at work. Manalapan had voluntarily paid income benefits in the total amount of $9,162.64, and had paid medical benefits in the sum of $8,453.67.
Medical evidence was presented to the ALJ by Drs. Bean, Ensalada and Travis for the employer, and Dr. Templin for the employee. The medical evidence indicated that Saylor was first treated for low back pain in 1985. In 1999, he visited the emergency room complaining of low back pains which radiated down his right leg. He gave a history which related to pulling on a cable which resulted in a sharp pain in the lower back while at work. He was again seen on September 28, 2001, complaining of severe low back pain with chest pains and shortness of breath. Following an MRI scan which was performed at the Appalachian Regional Hospital, it was determined that there was a positive degenerative disc disease accompanied by a mild diffuse bulging annulus. He was diagnosed with degenerative joint disease in the low back pursuant to the findings of the MRI. All of these medical visits were prior to the work incident.
Dr. Echeverria, an internist, examined Saylor and restricted him from lifting more than 10 to 15 lbs., with no standing, walking or sitting more than one to two hours per day, and only 10 to 15 minutes without interruption. The internist did not calculate impairment or express a causation opinion. Dr. Bean, a neurosurgeon, saw Saylor and ordered physical therapy. Another MRI was performed on January 16, 2002, and the physician interpreted the film as showing no change and stated that the MRI did not show any evidence of a herniated disk, and "is no different than it was in September 2001." Dr. Travis, a neurosurgeon, examined Saylor and concluded that the back strain of December 4, 2001, had resolved itself. He also indicated there was no evidence of any new permanent injury as of December 4, 2001. Dr. Ensalada, an occupational medical specialist, also determined that Saylor did not have a
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