Hale v. CDR Operations, Inc., 2014–SC–000062–WC

• Citation: 474 S.W.3d 129
• Decision Date: 29 October 2015
• Docket Number: 2014–SC–000062–WC,2014–SC–000066–WC
• Parties: Ronnie Hale, Appellant v. CDR Operations, Inc., et al., Appellees CDR Operations, Inc., et al., Cross Appellants v. Ronnie Hale, et al., Cross Appellees
• Court: United States State Supreme Court (Kentucky)

474 S.W.3d 129

Ronnie Hale, Appellant

v.CDR Operations, Inc., et al., Appellees

CDR Operations, Inc., et al., Cross Appellants

v.Ronnie Hale, et al., Cross Appellees

2014–SC–000062–WC

2014–SC–000066–WC

Supreme Court of Kentucky.

RENDERED: OCTOBER 29, 2015

COUNSEL FOR APPELLANT/CROSS–APPELLEE, RONNIE HALE: McKinnley Morgan

COUNSEL FOR CROSS–APPELLEE, WORKERS' COMPENSATION BOARD: Dwight Taylor Lovan

COUNSEL FOR APPELLEE/CROSS–APPELLANT, CDR OPERATIONS, INC.: Guillermo Alfredo Carlos, James Burke Cooper

COUNSEL FOR AMICUS CURIAE: Eric M. Lamb

OPINION OF THE COURT BY JUSTICE BARBER

Appellant/Cross–Appellee, Ronnie Hale was employed by Appellee/Cross–Appellant, CDR Operations, Inc., for approximately three months as a bulldozer operator. Before that, Hale had worked as a bulldozer operator for various other employers for approximately 30 years. Hale filed a workers' compensation claim against CDR alleging cumulative trauma and an injury date of February 7, 2012. The parties subsequently stipulated that date at the Benefit Review Conference ("BRC"). Relying on Dr. Madden, the administrative law judge ("ALJ") concluded that Hale sustained cumulative trauma injuries which became manifest on February 7, 2012, while he was employed at CDR, and that he was permanently and totally disabled. Although the Workers' Compensation Board ("Board") noted that the ALJ's determination was consistent with Dr. Madden's opinion, it vacated and remanded, concluding that February 7, 2012, could not be the date of manifestation and that Southern Kentucky Concrete Contractors, Inc. v. Horace W. Campbell, 662 S.W.2d 221 (Ky.App.1983), required apportionment of liability based upon the percentage of Hale's impairment attributable to the three months he worked at CDR. The Court of Appeals affirmed. Hale appealed and contends that Southern Kentucky Concrete is inapplicable. CDR cross-appeals and contends that the evidence failed to establish that Hale sustained a cumulative trauma injury during his three-month employment there.

For the reasons set forth below, we affirm to the extent that Dr. Madden's opinion provides a sufficient evidentiary foundation to support the ALJ's award. We reverse with respect to the issues of the manifestation date and apportionment of liability and reinstate the ALJ's decision.

I. BACKGROUND

On April 16, 2012, Hale filed an Application for Resolution of Injury Claim (Form 101), alleging cumulative trauma to his neck and back and an injury date of February 7, 2012.¹ Hale had worked as a dozer operator for various employers over approximately 30 years, most recently for CDR from November 2011 through February 7, 2012. Before that, he worked for Ikerd Bandy from 2001 until November 2011.

In his June 20, 2012 deposition, Hale explained that he stopped working for Ikerd because CDR bought it out, then CDR ceased operation. Hale testified that he worked for CDR at Redbird Mine in Clay County. He operated a dozer removing spoil off the top of the coal. The dozer had an air seat which, according to Hale, "was broke." On February 7, 2012, the job at Redbird ended and Hale was laid off.

At the September 6, 2012, BRC, the parties stipulated that "[Hale] sustained work-related injury(ies) on 2–7–12 (alleged). " The BRC Memorandum and Order lists the contested issues as: "Extent/duration; Notice & occurrence/causation; exclusion of any active or non-work related conditions; credit for any unemployment benefits[;] whether plaintiff sustained an injury, TTD & meds, multipliers[.]" The date of manifestation was not listed as a contested issue.

At the December 12, 2012 hearing, Hale testified that, over the past 30 years, his jobs included running a dozer, an excavator and a loader. He stated the dozer was the most physically demanding. At CDR, Hale worked on rough terrain with a lot of jarring and bouncing. He "mostly broke down the shot after the-the dynamite was put off.... Most of the time it leaves pretty big boulders...." Hale had to "push them out of the way ... so the smaller material, the loader can get to...." Hale worked every day that he was employed by CDR until the job ended. He testified that Dr. Madden was the first person who told him that he had a work-related problem caused by years of operating heavy equipment.

On December 17, 2012, the ALJ rendered an Opinion and Order which recites that the parties had stipulated an ("alleged") injury date of February 7, 2012.² The ALJ found Hale credible and convincing, determined that notice was timely under KRS 342.185, and concluded that Hale was permanently and totally disabled:

Based upon the totality of the evidence, including the plaintiffs sworn testimony and the medical reports and deposition of Dr. Madden, which I found to be very persuasive, I make the factual determination that Mr. Hale sustained cumulative trauma to his neck and back and also to both upper extremities and his left lower extremity and his right lower extremity as a result of working for a long period of time in the operation of heavy machinery and in the mines. I make the factual determination that there is sufficient reliable probative evidence in the record to support the finding that Mr. Hale's permanent impairment and occupational disability occurred during his lifetime of employment in the operation of heavy equipment and in the coal mines, and that his painful conditions manifested themselves on or about February 7, 2012, when he was employed by CDR Operations, Inc.

This case is like unto [sic] Southern Kentucky Concrete Contractors, Inc. v. Campbell, 662 S.W.2d 221 (Ky.App.1983). Mr. Campbell was employed by Southern Kentucky at the time his back pain manifested itself. Mr. Campbell had worked for many years doing heavy labor, primarily as a concrete worker for a number of companies. The [old] Workers' Compensation Board found that there was sufficient reliable probative evidence in the record to show that Mr. Campbell suffered a permanent total occupational disability that occurred over his lifetime of employment as a manual laborer and that this condition manifested itself while he was employed by Southern Kentucky Concrete.

The ALJ was not persuaded that Hale had any prior active disability, citing Roberts Brothers Coal Company v. Robinson, 113 S.W.3d 181 (Ky.2003).³ The ALJ explained that although Hale "had previous injuries and painful spinal symptoms," he was working without any restrictions while he was employed by CDR.

The ALJ awarded PTD benefits against CDR and/or its workers' compensation insurer beginning on February 7, 2012 continuing for the duration of Hale's disability pursuant to KRS 342.730(4).⁴

Both parties sought reconsideration. Hale raised an error in the amount of the weekly benefit rate. CDR contended that the "overwhelming medical testimony would indicate no objective harmful change in the human organism as a consequence of [Hale's] brief three-month employment by CDR." By Opinion and Order on Reconsideration rendered January 14, 2013, the ALJ granted Hale's petition and denied CDR's.

On January 31, 2013, CDR filed Notice of Appeal to the Board. The sole issue CDR raised on appeal was that the evidence failed to support a cumulative trauma injury during Hale's employment at CDR. By Opinion rendered May 17, 2013, the Board noted that the ALJ's determination was "certainly consistent" with Dr. Madden's opinion, but vacated and remanded on other grounds:

The record reveals February 7, 2012, is the date Hale was laid off from work for reasons unrelated to his alleged injury. This does not comprise a date of manifestation. Therefore, the ALJ's determination Hale sustained a cumulative trauma injury which manifested on February 7, 2012, and the award of PTD benefits must be vacated. On remand, the ALJ must determine the date of manifestation of Hale's alleged cumulative trauma injury....

The ALJ also erred in another critical respect. While in claims for hearing loss, KRS 342.7305 causes liability to fall on the last employer, this is not the case with non-hearing loss cumulative trauma claims.

In Southern Kentucky Concrete Contractors, Inc. v. Horace W. Campbell, 662 S.W.2d 221, 222 (Ky.App.1983), a case misinterpreted by the ALJ, ... the claimant's preexisting condition was found to be attributable to "his hard manual labor" with multiple employers over the years of his work life....

In Southern Kentucky Concrete, supra, the fact-finder determined "Campbell suffered a permanent, total, occupational disability that occurred during his lifetime of employment as a manual laborer." Similarly, in the case sub judice, the ALJ determined "Mr. Hale's permanent impairment and occupational disability occurred during his lifetime of employment in the operation of heavy equipment and in the coal mines." (emphasis added). This is certainly consistent with the medical opinions of Dr. Madden upon which the ALJ relied....

....

We acknowledge the ALJ determined Hale "did not have any prior active disability due to other accidents, injuries or conditions." However, this finding clearly does not establish a dormant condition was aroused into disabling reality during Hale's brief employment at CDR. In fact, by finding Hale sustained cumulative trauma over his thirty year history of operating heavy machinery in the mines, the ALJ, by implication specifically rejected the premise Hale's work at CDR resulted in an arousal of a previously dormant non-disabling condition into disability reality. The ALJ is left, then, with analyzing this as a cumulative trauma claim with multiple employers, and Southern Kentucky Concrete, supra, is determinative. As required by Southern Kentucky Concrete, supra, the ALJ must determine what percentage of Hale's impairment, if any, is directly attributable to Hale's three months at CDR.... Simply because Hale was last employed by CDR does not place the entirety of the liability for Hale's alleged permanent and total occupational disability on CDR. There must be evidence of record

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