Carnes v. Parton Bros. Contracting, Inc., No. 2004-CA-002267-WC.

• Decision Date: 19 August 2005
• Docket Number: No. 2004-CA-002267-WC.
• Citation: 171 S.W.3d 60
• Parties: Doyle CARNES, Jr., Appellant, v. PARTON BROTHERS CONTRACTING, INC.; Backfield Coal Co.; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

171 S.W.3d 60

Doyle CARNES, Jr., Appellant, v. PARTON BROTHERS CONTRACTING, INC.; Backfield Coal Co.; and Workers' Compensation Board, Appellees.

No. 2004-CA-002267-WC.

Court of Appeals of Kentucky.

August 19, 2005.

Susan Turner Landis, Harlan, KY, for appellant.

William E. Brown, II, Lexington, KY, for appellees.

Before BARBER and JOHNSON, Judges; HUDDLESTON, Senior Judge.¹

OPINION

JOHNSON, Judge.

Doyle Carnes, Jr. has petitioned for review from an opinion of the Workers' Compensation Board entered on October 8, 2004, which vacated and remanded the Chief Administrative Law Judge's opinion and award rendered on April 6, 2004, which found Carnes to be permanently and totally disabled. Having concluded that the Board misapplied the relevant statutory provisions and exceeded its authority on appellate review, we reverse and remand this matter to the Board to reinstate the CALJ's opinion and award.

Carnes was born on October 27, 1969. He is a high school graduate, and received some vocational training in diesel mechanics while in high school. Carnes never used these skills in any job. Following high school, Carnes worked as a cook at a McDonald's restaurant for approximately one year. After working at McDonald's, Carnes worked as an underground coal miner from 1988 to 2002, with the exception of approximately one year of employment with a construction company in 1998 and 1999.² While in the coal industry, Carnes worked primarily as a continuous mine operator.

Carnes suffered at least three work-related injuries before the injury which gave rise to the claim on review. Carnes's right shoulder was injured on October 18, 1993, while he was working for Crockett Collieries when draw rock fell on him. No workers' compensation claim was filed and the problem resolved itself within a few days. Then, on December 12, 1996, Carnes's left foot was struck by draw rock, causing temporary nerve damage. He filed a workers' compensation claim, which was settled for the lump sum of $15,000.00 based on a 7.5% impairment rating. Carnes also suffered an injury in January 2001 when he was struck in the shoulders and in the head by a piece of draw rock, just two days after beginning work for Jack Rock Coal. He reported pain in his head, shoulders, and mid-back, and ringing in his ears. He was hospitalized, but did not have surgery. With continuing pain and ringing in his ears, Carnes returned to work with the help of pain medication and monthly doctor visits. He filed a workers' compensation complaint and received an award and a settlement for his medical expenses.

After the January 2001 injury, Carnes was employed with Parton Brothers Contracting, Inc. on July 17, 2001, and he was injured on October 10, 2002,³ while dragging a five-gallon can of gear oil, 700 to 800 feet, in an underground mine.⁴ Upon completing the task, he immediately felt a severe throbbing and burning with a stinging sensation down his left leg and pain in the center of his back just above his beltline. Carnes drove himself to the hospital where he was treated at the emergency room. He was unable to return to work⁵ and filed his Application for Resolution of Injury Claim on July 21, 2003.⁶

On February 6, 2004, an evidentiary hearing was held before the CALJ. Evidence presented included Carnes's deposition and live testimony, and medical evidence from Dr. James Bean, Dr. David Muffly, and Dr. Christopher Stephens. Carnes testified in his deposition that he suffers from severe lower back pain, as well as numbness in his left leg, and muscle spasms in his calf muscles. He also testified that he suffers from temporary paralysis in his lower left leg from time to time. The numbness in his leg comes and goes, but he described the back pain as a constant ache. Due to his pain, Carnes engages in very few daily activities, but stays in bed most of the time, while applying a heating pad. In a 12-hour period, Carnes spends approximately six to eight hours lying down, one hour standing, and one hour sitting. He stated that he is able to do some yard work on a riding lawn mower from time to time, and that he does laundry, but only what he has to, and he sometimes goes to the grocery store. His family and friends perform the housekeeping tasks that he cannot do on his own. He testified that he can no longer engage in the hobbies he enjoyed before his low-back injury, including hunting and fishing. He also stated that he only drives when he has to, and only 10 to 15 miles at a time, because he cannot sit for longer periods of time.

On February 6, 2004, Carnes testified before the CALJ regarding his injury, stating that he is in constant pain, and that he suffers from paralysis in his left leg several days out of the month. He sometimes uses a cane to assist him with walking. He is currently on Percocet, a muscle relaxer, and has recently been taking sleeping pills and blood pressure medication as needed. He has been bedridden by his pain for up to nine consecutive days. He is most comfortable lying flat on his back. He has received medical care for his pain, including hospitalization, emergency room treatment,⁷ injections of medication, as well as daily medication. He also testified that he has discussed the options of surgery with Dr. Stephens, but that he has not undergone the surgery because of the risks and the somewhat minimal relief that Dr. Stephens told him he could expect from surgery.

Carnes also testified that his pain is worsening and that he could not do any type of work as of the date of the hearing. He had not looked for work since the date he gave his deposition. The CALJ specifically asked Carnes about his educational and vocational training. Carnes testified that due to his condition he did not think he could perform any job.

Carnes submitted in support of his claim a Form 107 dated May 10, 2003, along with Dr. Bean's report dated May 10, 2003. Dr. Bean indicated in his report that Carnes's straight-leg-raising test was positive on the left, but he had a normal motor sensory reflex exam. After reviewing an MRI dated December 12, 2002, Dr. Bean reported that Carnes suffered from degenerative disc disease, lumbar sprain, and a central disc bulge at the L4-5 and L5-S1 levels. It was Dr. Bean's opinion that these conditions were due to the injury Carnes sustained in 2002, and that Carnes did not have an active impairment before this injury. He assigned Carnes an 8% functional impairment rating in accordance with the AMA Guides to the Evaluation of Permanent Impairment. Dr. Bean recommended that Carnes lift no more than 30 to 40 pounds, and avoid any activities which required continuous bending or stooping. He further opined that Carnes was physically unable to return to the type of work he performed prior to and at the time of his injury.

Dr. Muffly, an orthopedic surgeon, testified by deposition dated November 12, 2003. Dr. Muffly had treated Carnes for both his 1997 foot injury and his 2001 shoulder injury.⁸ He evaluated Carnes on May 19, 2003, after he complained of low-back pain as a result of the October 10, 2002, injury. He testified that prior to this date, Carnes had never complained of pain in his lumbar spine and had no history of lumbar problems. He reported that Carnes's straight-leg-raising test was positive at 80 degrees in both the seated and supine positions and that Carnes walked without a limp, but had stiffness in the low back with change of position and tenderness in the low back. Dr. Muffly also reviewed the MRI scan dated December 12, 2002, and agreed with Dr. Bean that the MRI showed a moderate disc bulge at the L4-5 and the L5-S1 levels. Dr. Muffly's diagnosis was lumbar strain, disc bulging of the lower two lumbar levels, and degenerative changes. He attributed these conditions to Carnes's October 2002 injury, and estimated Carnes's functional impairment rating to be 8% based on the AMA Guides. Dr. Muffly recommended that Carnes lift no more than 30 pounds, do only minimal bending and stooping, and change positions every 30 to 60 minutes. Dr. Muffly testified that it was within reasonable medical probability that the restrictions would be permanent.

Dr. Muffly testified that, following his May 19, 2003, evaluation of Carnes, he was able to review additional medical records, including an MRI scan of Carnes's lumbar spine taken on May 29, 2003. He stated that it was his opinion that the May 29, 2003, MRI showed a progression of Carnes's disc injury, including a disc protrusion at the L4-5 level, and disc herniation at L5-S1 level, and that the injury was more significant than was diagnosed by the first MRI scan. Dr. Muffly revised his estimation of Carnes's impairment level to 10% and revised his recommendation to restrict Carnes's lifting to less than 20 pounds. He stated that Carnes should only bend or stoop one to two hours per day, changing positions at least every 30 minutes, including lying down. Dr. Muffly testified that Carnes would continue to suffer from chronic pain, and that he would suffer from "flare-ups," which would render him bedridden or even require hospitalization. He also stated that he believed Carnes's medical condition would slowly worsen over time, as it appeared to be worsening every five months between MRI scans. He stated that Carnes needed to have regular doctor visits and additional testing, medication, and possibly future surgical treatment. He testified that combining the effect of Carnes's prior neck injury⁹ and the low-back injury, Carnes would be limited to less than sedentary work, because he should lift less than ten pounds, could not stand or sit for even three hours in an eight-hour workday, and would have difficulty concentrating. He also testified that Carnes would be slower at performing daily activities.

The medical report of Dr. Stephens was also introduced. Dr. Stephens evaluated Carnes on November 21, 2003, and also reviewed Carnes's treatment records¹⁰ and the two MRI scans...