Cases For Goble, Cassady And Kirk Hang On Court's Interpretation Of "Loophole"

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 Law Firm 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.)

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