INEZ - When John Goble got hurt on a hot July day in 1999 while working
for Pinnacle Processing, he immediately knew that this injury was different
and more serious than a 1990 fall from a dozer and a 1994 leg injury which
required surgery. He's had his low back and legs hurt before, but
never before had he sustained an injury to his cervical area.
But, John Goble had always been motivated to work and so he returned to
work after a few days and he stayed at it. He'd recovered from his
other injuries and, he hoped, he'd get over this one as well. Unfortunately,
he didn't. Each day the pain in his neck and shoulders was worse than
the day before. Still, John held on with the help of his doctor, Lonnie
Lafferty, and because he wanted to.
"I didn't want to stop working," he later told an administrative
law judge. "I liked my job and I liked where I worked (five miles
from his home) and I liked who I worked for."
Diagnostic Test Revealed Ruptured Disc
Ultimately, John consented to diagnostic tests and an MRI and a NCS (Nerve Conduction Study). The resultant picture was not pretty. John found that he had a severely herniated disc in his neck. "No wonder I was having so much pain, Dr. Lafferty told me." By August, the pain was constant and severe and on December 7, 1999, John underwent cervical surgery at UK. Unfortunately, the surgery did not resolve the underlying problem.
"They didn't promise me it would cure me," John testified.
"Neck surgery is very serious stuff. I had it done hoping I would
get over this and get back to work." Sadly, things didn't work
out that way for John. "After surgery, I tried everything,"
he said, "including physical therapy, but nothing worked."
Administrative Law Judge Kerr Renders Award Of Total Disability
After more than 20 years as a miner, John gave up his hopes of returning
following the surgery and he eventually contacted attorney John Kirk who
filed a workers' compensation claim. On March 9, this year, John received
a decision from Administrative Law Judge, James L. Kerr, finding him to
be permanently disabled and awarded him weekly benefits of $462.84 for
life. Had the judge found him to be only partially disabled, the award
would have had a 425 week duration.
Company Files Request For Judge To "Reconsider" The Award
On March 15, the company's counsel filed a Petition for Reconsideration
asking the judge to change the award. John's disability, the Petition
says, results not from a work injury but from the "natural aging
process."
Administrative Law Judge Richard Campbell Renders 100% Award For Billy
Cassady For Injury At Rockhouse Energy
Billy Cassady, also of Inez, was an underground miner employed by Rockhouse
Energy until he was injured on August 10, 1999, when a canopy on a machine
he was operating fell onto him, causing various spinal and other injuries.
Administrative Law Judge, Richard H. Campbell, Jr., rendered an Opinion,
from which Rockhouse has appealed, finding Billy to have a total and permanent
disability from the accident. Judge Campbell awarded the weekly sum of
$487.20 during Billy's lifetime. As in the case of John Goble, the
company appealed the judge's decision contending that at least part
of Billy's disability resulted from "the natural aging process."
Presently, the Kentucky workers' compensation law allows for "exclusions
of benefits" for portions of disability that are directly related
to the "aging process." That provision, enacted four years ago
in the so-called "Patton Law," is one of the more controversial
provisions of that statute.
"While there is no question that Billy is totally disabled, we must
dispose of this issue on appeal. Frankly, I believe that Judge Campbell
addressed this point and decided it according to law," said John
Kirk, counsel for Billy Cassady.
At issue is more than $600,000, the amount Mr. Cassady might receive under
the existing award paid over his lifetime.
Faced with deciding this issue in Billy's case is a three-member board
composed of Jonathan Stanley, John Gardner and Dwight Lovan. Billy's
lawyer, John Kirk, says he expects a board decision "soon."
"Of course, this upcoming decision is very important to Billy,"
Kirk said. "But, the broader point pertains to this provision of
law. If the aging process applies to Billy's case, then the claims
of many other similarly injured miners may be in jeopardy.
Administrative Law Judge Donna Terry Renders 100% Award For Tom Kirk,
Jr. For Injury At Clean Energy
Tom Kirk, Jr. was a 60-hour-a-week man for Clean Energy Coal Company at
Sidney in Pike County before a 1998 injury put him out of action. Like
John Goble and Billy Cassady, Tom filed a comp claim and like them received
a 100% award.
But, Clean Energy, like Pinnacle and Rockhouse, appealed. The first appeal
was back to Judge Terry asking her to "reconsider" and change
her decision, which Judge Terry refused to do. Next came the company's
appeal to the three-member Workers' Compensation Board, which upheld
Judge Terry's decision. The company then appealed again, to the Kentucky
Court of Appeals, which also upheld Judge Terry's decision. But, if
Clean Energy was discouraged, it was not apparent because it next brought
an appeal to the Kentucky Supreme Court, which has yet to rule on the
case. In the meantime, more than three years have passed since Tom Kirk's injury.
Appeals Are Based On "Patton Law Loophole"
The various appeals result from what some lawyers call a "loophole"
in the so-called "Patton Law," which, according to John Kirk,
"radically changed" workers' compensation cases in 1996.
The lawyer referred to sweeping changes in workers' compensation laws
proposed by Governor Paul Patton and enacted by the Legislature.
"Tom's case is one of the lead cases on this point of law,"
Kirk said. "If Tom succeeds in getting the Supreme Court to affirm
the Court of Appeals, then the appeals in similar cases - and Kirk & Crum, PLLC represents many, many others - like John's and Billy's may
go away. Many lawyers question the fairness of the law," Kirk said,
"and I am one of them. Right now it's the law and we have to
deal with it."
Will Billy, John, and Tom win again or will the companies win their appeals
and have the decision favorable for Kirk's clients overturned? We
posed that question to Kirk who said, "That's a very good question.
We have, not one, but three different Workers' Compensation Judges
who have made total disability awards to three very deserving men, in
spite of the "loophole." In Tom's case, the Board and the
Court of Appeals backed up the Judge. So, yes, I am optimistic,"
he said. "I believe the judges all made legally sound decisions and
that they will be affirmed on appeal."
billycassady
Billy Cassady
Injury Awards To Goble, Cassady and Kirk Are Affirmed By Appellate Courts
Attorney Kirk Is 'Well Pleased' By Court Decisions
By Mark Grayson
MARTIN COUNTY SUN
INEZ - Although attorney John Kirk is not the kind of person to brag about
another notch on his legal belt, I could tell by the tone of his voice
that he was extremely pleased by recent appellate decisions in the cases
of Billy Cassady, Tom Kirk, Jr. and John Goble, three coal miners who,
according to three different Administrative Law Judges, had sustained
serious and permanent injuries at work at three different mines, one in
Pike County an two in Martin County.
Story Of 100% Awards To Cassady, Kirk And Goble Was Previously Reported
15 Months Ago
As we previously reported in a story 15 months ago, Kirk's clients
Cassady, Kirk and Goble, had received total, lifetime, awards from Administrative
Law Judges Kerr, Campbell and Terry, for injuries sustained at work, but
that the companies had appealed all three decisions on the grounds of
what Kirk and other lawyers call "Patton's 'Loophole,'"
appeals that claimed that the workers' disabilities resulted from
"the natural aging process."
Each of the ALJs had found that the workers were disabled as a result
of injuries sustained at work and the judges rendered opinions of total
disability for the three workers.
"Given the law that was proposed by Governor Patton and passed by
the legislature in 1996, my hard-working, disabled, clients sure had a
hard road to travel to get justice done," John Kirk said. "But,
thank God, justice was done for these men, all of whom had worked many
years of 50 hour weeks. I am grateful that justice was done for them and
I am honored to have been their lawyer."
Decisions Will Have "Favorable Consequences" For Other Injured Workers
Kirk's law firm, according to Kentucky Department of Labor stats,
represents more claimants for injury and lung disabilities than any other
Kentucky firm and, according to Roll Call Magazine, a Frankfort publication,
leads the state year-after-year in number of worker injury cases won.
Kirk believes that the recent decisions affirming Administrative Judges
Kerr, Campbell and Terry will have "favorable consequences"
for other workers.
"The decisions of the appeals courts will have a ripple effect,"
Kirk said, "and the effects will be felt in many, many claims for
hard-working men and women who have been injured at work. During my years
as a lawyer I have developed great faith in the members of our higher
courts. The recent decisions have affirmed that faith," he added.
"What the appeals courts have done will bring what I call 'favorable
consequences' to many deserving workers."
Kirk told me that the workers' compensation law needs a number of
legislative changes. "Hopefully, the legislature will follow the
lead of the courts and enact appropriate changes," Kirk said. "Working
men and women have a number of friends in the legislature," he said.
"My friends, Greg Stumbo and Hubert Collins, among others, want to
fix the problem, but they need some help."
(NOTE: Story about previous awards from Administrative Law Judges are
posted on KLF website.)