Warren Campbell v. International Coal Group, Inc. ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED: OCTOBER 29, 2015
NOT TO BE PUBLISHED
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WARREN CAMPBELL APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001435-WC
WORKERS' COMPENSATION NO. 13-01469
INTERNATIONAL COAL GROUP, INC.;
HONORABLE J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Warren Campbell, appeals a Court of Appeals decision which
affirmed his workers' compensation award that was not enhanced by the three
multiplier. KRS 342.730(1)(c)1. Campbell argues that the Administrative Law
Judge ("ALJ") erred by not awarding him the three multiplier because he does
not believe he has the capacity to return to work at his pre-injury job. For the
below stated reasons, we affirm the Court of Appeals.
Campbell is a high school graduate with a history of operating heavy
equipment for coal companies and road departments. Campbell began to work
for Appellee, International Coal Group, Inc. ("ICG"), as a dozer operator on July
12, 2010. He was laid off on December 2, 2011. After being laid off, Campbell
began to notice he was having hearing problems. An audiogram revealed
moderate to profound sensorineural loss of hearing with speech discrimination
at 50% in the right and 50% in the left, and 60% binaurally. Campbell filed a
Form 103 Application for Resolution of Hearing Loss Claim alleging that he
sustained occupational hearing loss during the course and scope of his
employment with ICG.
Campbell testified during a deposition that he worked in the coal mining
industry for seventeen years. He underwent a hearing test before beginning to
work for ICG and had never been diagnosed with a hearing problem prior to
being laid off. Campbell testified that he was exposed to loud noises at
previous jobs and ICG. Campbell also admitted that he never missed any
work, received any treatment, or was involved in a work accident or injury due
to a hearing problem. He has not returned to work since being laid off by ICG.
Campbell testified at the final hearing that the ability to hear was
important when operating a dozer. He stated that as a dozer operator he was
in constant contact with coal truck and heavy equipment drivers because he
needed to know where they were located to prevent accidents. Campbell
thought that his hearing problem would make it difficult for him to distinguish
commands and could create safety issues while operating a dozer. Campbell
did not believe he could return to work as a dozer operator.
A University evaluation was performed by Dr. Raleigh Jones and Dr. Trey
Cline. Dr. Jones concluded that Campbell suffered from work-related bilateral
noise induced sensorineural hearing loss due to his repetitive exposure to
noise, and he assigned a whole person impairment of 11% pursuant to the
Fifth Edition of the AMA Guides. Dr. Jones recommended that Campbell wear
bilateral hearing aids and use hearing protection when around loud noise. The
University evaluation did not state that Campbell would be unable to return to
employment as a dozer operator.
After a review of the evidence, the ALJ accepted Dr. Jones's opinion and
concluded that Campbell had an 11% impairment due to work-related hearing
loss. He also found that Campbell had the ability to return to his former job
duties as long as Dr. Jones's recommendations on wearing hearing protection
were followed. The ALJ stated:
The ALJ can appreciate [Campbell's] testimony at the final hearing
that he felt his loss of hearing would cause safety issues in a
return to work in mining. However, [Campbell's] concerns do not
appear to be borne out by medical findings or restrictions
contained in the only medical evidence in the file.
Thus, the ALT awarded Campbell benefits unenhanced by the three multiplier.
Campbell appealed to the Board which affirmed the ALJ's opinion and order.
The Court of Appeals also affirmed, and this appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
Further, the function of the Court of Appeals is to "correct the Board only
where the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review
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by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole
discretion to judge the credibility of testimony and weight of evidence.
Paramount Foods, Inc.-v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). "The claimant
in a workman's compensation case has the burden of proof." Snawder v. Stice,
576 S.W.2d 276, 279 (Ky. App. 1979). "If the board finds against a claimant
who had the burden of proof and the risk of persuasion, the court upon review
is confined to determining whether or not the total evidence was so strong as to
compel a finding in claimant's favor." Id. at 280 (citations omitted).
KRS 342.730(1)(c)1, the three, multiplier, states in pertinent part:
If, due to an injury, an employee does not retain the physical
capacity to return to the type of work that the employee performed
at the time of injury, the benefit for permanent partial disability
shall be multiplied by three (3) times .. .
Campbell argues that the A1.0 should have applied the three multiplier to
his award because due to his hearing loss he cannot return to employment as
a dozer operator. Campbell believes that wearing hearing protection, as
recommended by Dr. Jones, will make it unsafe for him to operate a dozer
because he will be unable to hear commands, instructions, and audible
alarms.
But, the evidence in this matter does not compel a different result than
the one reached by the AIJ regarding the three multiplier. There is no
evidence, other than Campbell's own testimony, that he cannot return to work
as a dozer operator. The AL I was free to not rely on this testimony.
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Additionally, the University evaluation did not state that Campbell cannot work
around loud noises, but only that if he was around loud noise he should use
hearing protection. Further, there is no evidence the recommended hearing
aids will not give Campbell the ability to hear adequately on the job. The
evidence in this matter is not so strong to compel a finding in Campbell's favor
and the AL I did not abuse his discretion in declining to apply the three
multiplier.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
WARREN CAMPBELL:
McKinnley Morgan
COUNSEL FOR APPELLEE,
INTERNATIONAL COAL GROUP, INC.:
Denise Moore Davidson
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