*/
Workers’
Compensation Board
OPINION
ENTERED: November 4, 2016
CLAIM NO. 201365639
KELLOGG USA PETITIONER
VS. APPEAL FROM HON. DOUGLAS
W. GOTT,
ADMINISTRATIVE LAW JUDGE
MARTHA CUNNINGHAM
and HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Kellogg USA ("Kellogg") appeals from
the April 11, 2016, Opinion and Order and the Order ruling on its petition for reconsideration of Hon.
Douglas Gott, Administrative Law Judge ("ALJ").[1]
In the April 11, 2016, Opinion and Order, the ALJ awarded temporary total
disability ("TTD")
benefits and medical benefits as paid for Martha Cunningham's (“Cunningham”) alleged
September 20, 2013, acute injury claim.
The ALJ also awarded TTD benefits, permanent partial disability
("PPD") benefits, and medical benefits for cumulative trauma injuries
to her low back, shoulders, and left knee.[2]
On appeal, Kellogg asserts Cunningham
failed to provide notice of the alleged cumulative trauma injuries to her
shoulders, low back, and bilateral knees "as soon as practicable;"
therefore, the claim for these injuries is barred by KRS 342.185(1).[3]
In her Form 101, Cunningham alleged injuries
on September 20, 2013, and January 28, 2015, in the following manner:
9/20/13: I was working an [sic] fell while
unloading boxes and injured my entire right side, neck, back of my head and my
low back.
1/29/15: Due to the nature and duration of my
work and specifically the repetitive nature, I developed problems with both
shoulders and my cervical spine from the constant twisting, turning, and
reaching. Cumulatively, it resulted in an injury involving both of my
shoulders, my neck, both of my knees and my low back for which I first sought
significant treatment in May of 2014 and was advised that my medical problems
were the result of the activities at work. So, that's why I have used 1/28/15
as the date of injury.
The Form 101 asserts Cunningham gave
notice to Kellogg "as soon as practicable."
The February 5, 2016, Benefit Review
Conference ("BRC") Order and Memorandum lists the contested issues as
follows: work-relatedness/causation; notice; benefits per KRS 342.730;
"injury" as defined by the Act; limitations; TTD
(overpayment/underpayment); and pre-existing active.
Voluminous medical records were filed.
We will address those records germane to this appeal.
The March 1, 2012, medical record of
Dr. Stacie Grossfeld states, in part, as follows:
The patient is a 54-year-old female that
presents to the office with a chief complaint of pain about her lumbar spine.
She also complains of pain radiating down her right lower extremity. She was
referred to my office for orthopedic consultation by a family member. Her
primary care physician is Dr. Stuart Spaulding [sic]. She states that her
symptomatology is [sic] been present for about a year but got progressively
worse in December. She started seeing a chiropractor that time and went through
a series of adjustments. She's been on Celebrex which he stopped about a month
ago and had been on them [sic] for [sic] total of a year. She's never had any
formal physical therapy or an MRI scan. She currently rates her pain 8/10 on
the VAS pain scale. Her occupation is a salesperson which required her to open
about 200 cases a [sic] product per day lifting between 5-40 pounds. She states
that were [sic] carefully [sic] worsens her symptomatology.
The January 28, 2015, medical record
of Dr. Grossfeld provides under "history of present illness" as follows:
The patient is a 57 year old female
presenting for a post-operative visit. She is status post right rotator cuff
repair arthroscopic on December 17, 2014. She took it really well. Her pain
level is less, she is requiring [sic] to use
She is scheduled to see Dr. Hodes regarding
her cervical spine.
She did have an MRI scan of her cervical
spine on January 9, 2015 at High Field & Open MRI, which revealed
multilevel disc degeneration and spinal stenosis.
Under "Plan," Dr. Grossfeld
wrote as follows:
1. Continue her physical therapy and we are
going to lift all range of motion restrictions and focus on a Neer phase 2
protocol.
2. She will keep her appointment with Dr.
Hodes.
3. I will refill her Nortab 7.5/325.
4. I will see her back in six weeks with the
repeat examination.
5. At this point, I am going to continue to
hold her off work [sic] it should be of note that she works [sic] at Kellogg
for 13 years. Her repetitive use of both shoulders, her cervical spine and
constant twisting, turning, and reaching has caused an accumulative [sic] work
related injury involving both shoulders, her neck, and her low back. At this
point, I do not feel that she will be able to return back to work without some
significant permanent restrictions.
In her May 1, 2015, letter, Dr.
Grossfeld states as follows:
I am currently treating Ms. Cunningham. I am currently holding
her off work. She has been working for Kellogg's for 13 years. Her repetitive
use of both shoulders, her cervical spine and constant twisting, turning and
reaching have caused an accumulative [sic] work related injuries involving both
shoulder [sic], her neck, bilateral knees, and her low back. At this point, I
do not feel that she will be able to return back to work without some
significant permanent restrictions.
The October 20, 2015, report of Dr. Warren
Bilkey was introduced. After performing an examination, Dr. Bilkey set forth
the following under "impression":
1. 9/20/13 work injury; right elbow
contusion, right hand strain, lumbar strain, cervical strain. These have been
treated conservatively. These problems have resolved without impairment.
2. 1/28/15 work injury; cumulative
trauma/injury with left shoulder strain, rotator cuff tear, aggravation of AC
joint degenerative joint disease and of labrum tear. Ms. Cunningham has
undergone surgery for these concerns.
3. Right shoulder strain, rotator cuff tear,
labrum tear. Ms. Cunningham has undergone surgery for these concerns.
4. Left knee strain, meniscus tear. Ms.
Cunningham has undergone partial medial and lateral meniscectomy surgery.
5. Lumbar strain.
6. Cervical strain.
Dr. Bilkey opined as follows:
Ms. Cunningham has had multiple chronic pain
concerns affecting multiple body regions related to the 1/28/15 dated work
injury for which she actually initially received medical treatment in May 2014.
She has undergone surgeries to both shoulders and to her left knee. Prior to
that, she had had problems that were successfully treated through physical
therapy input. It didn't happen this time around. Ms. Cunningham has not been
able to continue to work her usual job setting.
In my opinion, the above diagnoses are due to
the 1/28/15 dated work injury. The evaluation and treatment procedures that
have been carried out appear to have been reasonable, medical necessary and
work injury related.
Ms. Cunningham is at MMI with respect to both
of these dated work injuries.
Treatment recommendations for Ms. Cunningham
are that she pursue strengthening affecting the core musculature and shoulder
girdle musculature. This should be a home exercise program.
With respect to work restriction
recommendations. Ms. Cunningham should not be lifting over 30 lbs occasional.
She should avoid ladders and avoid kneeling. She should avoid squatting and
repetitive bending. These restrictions are due to the 1/28/15 work injury. It
appears these restrictions do preclude Ms. Cunningham from being able to carry
out the full scope of the usual work duties successfully performed prior to the
1/28/15 dated work injury.
A permanent partial impairment rating may be
calculated based upon the assessment carried out today in record review.
According to the AMA Guides to the Evaluation of Permanent Impairment, Fifth
Edition, with respect to the 1/28/15 dated work injury, there is 10% upper
extremity impairment according to Table 16-27 for the left shoulder distal
clavicle resection component of surgery that she had. For loss of motion,
according to Fig. 16-40, for loss of flexion there is 2% upper limb impairment
each side. For loss of extension there is 1% impairment to the upper limb both
sides. For loss of internal rotation on the left according to Fig. 16-46, there
is 1% upper limb impairment for internal and for external rotation each
according to Table 16-35. This yields 17% upper extremity impairment left, 3%
upper extremity impairment right or 10% whole person impairment left, 3% upper
extremity impairment right or 10% whole person impairment left, 2% whole person
impairment right.
With respect to the left knee, according to
Table 17-33, for partial medial and lateral meniscectomy, there is 4% whole
person impairment.
For lumbar strain, according to Table 15-3,
Ms. Cunningham has a Lumbar DRE Category II impairment. There is 5% whole
person impairment. It appears there is no impairment for cervical strain here.
Combining impairments yields a total 20% whole person impairment solely
attributable to the 1/28/15 work injury.
Several
medical records of Dr. Navin Kilambi were introduced. In a record dated June
17, 2009, he wrote under “history” the following:
She is a 51-year-old right-hand dominant
female who works in sales. She does a lot of stocking for sales for Kellogg’s
Company. She had onset of right shoulder pain on 04/26/09 almost 2 months ago
when she was walking in a flip-flop, slipped and then fell, head long, side
ways into the stone wall of her home, hitting her head and the adducted right
shoulder. She had pain and discomfort. She fell to the ground, but did not pass
out. She eventually saw her primary care doctor because of continued pain.
Started some Mobic, some Tylenol. She has not really done a lot. She was off
work last week for other reasons. She did not improve. She was asked to follow
up with Orthopaedics. Because of continued pain [sic] was referred to Orthopaedics.
Pain in the superior shoulder. Pain in the lateral and frontal shoulder
radiating down into the arm towards the elbow, sometimes towards the hand,
occasional numbness. She has some neck pain with this. Her range of motion is
painful above overhead work on the right shoulder and feels a pulling
sensation.
Under “assessment,” Dr. Kilambi
opined as follows: “She does appear to have rotator cuff bursitis and
tendinitis primarily, although she has some other aches that could be secondary
to using these muscles abnormally.”
In a June 16, 2011, medical record
under “history,” Dr. Kilambi stated:
Follows up today with regard to a new condition. Previous
shoulder pain, but now she is stating bilateral knees have been hurting over
the years. She constantly goes up and down stairs and leans on her knees at
work where she is a salesperson, but she never really had anybody look at it
much. She has taken some Mobic in the past which has not helped recently. She
has also tried ibuprofen and Aleve, which irritated her stomach.
(emphasis in original).
Under “assessment,” Dr. Kilambi opined
as follows: “Bilateral knee patellofemoral pain by history and a little bit of
iliotibial band pain.”
Cunningham was deposed on August 18,
2015, and testified she has worked for Kellogg since December 30, 2002, when she
was hired as a Territory Manager.
In 2009, Cunningham slipped and fell
at home, causing an injury to her right shoulder. She treated with Dr. Kilambi
who ultimately performed rotator cuff repair surgery in 2009. Her job as
Territory Manager was bid out while she was out with this injury, and she
returned to Kellogg as a Territory Service Representative. She described the
requirements of the job as follows:
Q: Okay. So how much of your day, as a
Territory Service Rep, would you be handling product?
A: All day. Except for from one point A to point B. I might run
three or four stores a day in a day's time, or in a week's time you could
probably handle 700 to 1,000 cases of product in a week.
...
Q: Okay. And as far as physical activities
are concerned, I know that you would have to move- physically move product.
A: Correct.
Q: What percentage of your day would be
receiving stock cases?
A: You mean putting it up?
Q: Uh-huh.
A: 95.
Q: 95? All right.
A: The other five was spent driving from one location to the
next.
...
Q: So on a regular basis, what is the
heaviest item you would have to lift?
A: I'd say 50 pounds, and the reason I say that, it could be
more. Because of my height, the pallets when they come in, I mean, they're
stacked a lot of times way over my head and some- you would try to have a stool
to help you out with that, but a lot of times you wouldn't be able to and if
you go to- if they're shrunk wrapped, you don't take your blade to cut that,
that product sometimes would be falling on you and you'd have to catch it and
lift it off of there. So I mean, at the most, for the most part that I would
lift is 50 pounds a day and that'd probably be about six or eight times a day
maybe.
The September 20, 2013, injury
occurred when she slipped and fell at Wal-Mart and landed on her right side.
She testified as follows:
Q: Okay. All right. And what symptoms were
you experiencing at that particular time?
A: Well, my elbow hurt, my side, my fingers
were kind of tingling and numb, my head hurt, I had [sic] headache in the back.
I felt like I had whiplash, to be honest with you. That's how I described it to
the doctor at BaptistWorx.
In the context of the alleged September
20, 2013, injuries, Cunningham was asked about her alleged neck injury and testified
she started seeing Dr. Grossfeld in 2010 because she was experiencing muscle
spasms in her low back and shoulders. Cunningham also saw Dr. Spalding at this
time who thought she was suffering from pinched nerves.[4]
She testified as follows:
Q: Now, when you first started seeing Dr.
Spalding in 2008 and complained about these back spasms-
A: I didn't know what they were at the time-
Q: Sure.
A: -like I said, I thought it was fatigue.
Q: Where were they in your back?
A: In my shoulder blades.
Q: You're pointing to the right and left
shoulder.
A: Yes. Like they were on fire. On fire.
Q: Okay. And would it travel down the length of your spine to
your low back?
A: No, it would pretty much be located in my
whole shoulder blades, all of it.
Q: Okay. And you said you felt that that was because of your
work? Fatigue and your work?
A: I did.
Q: Okay. And you said you told Dr. Spalding
that as well?
A: Right.
Q: And he told you, based on what you just
testified to, that he thought it was pinched nerves?
A: Or muscle spasms.
Q: Or muscle spasms.
A: Yes. Yes.
Q: And did he attribute that to your work at
Kellogg's as well?
A: Oh, sure. Yes.
Q: Okay. And that's- that was his diagnosis
for your muscle spasms in your neck area, correct?
A: Well, I mean, he really never diagnosed
me. I mean, I told him, you know, what was going on and what I thought it was.
I mean, he always said I'm doing too much, you know. You know, you just lift
too much, you need to stop. You know, you find another job basically is what he
told me.
Q: Okay. And that was in 2008?
A: I don't remember what year that was.
Q: Okay. All right.
A: He told me that many many times.
Q: And do you believe that when you first saw
him for the muscle spasms in your neck shoulder area, between your shoulder
blades, that that was a result of your work?
A: Oh, absolutely.
Q: And he was of that same opinion, based on-
A: Absolutely, yes.
Q: All right. And did you report that to
anyone at Kellogg's?
A: No, sir.
Cunningham was asked about her alleged
September 20, 2013, low back injury and testified as follows:
Q: ...Now on September 23 [sic], 2013, you
also mentioned that you had an injury to your low back.
A: When?
Q: September 23 [sic], 2013.
A: Yes.
Q: What symptoms were you experiencing with
regard to your low back on that date?
A: It was all just- just real tender. I mean,
it was just all real sore.
Q: Okay. When did you first experience any
type of pain in your low back for which you sought treatment?
A: I couldn't tell you.
...
Q: Now the note of March 1, 2012 from Dr.
Grossfeld stated that you had had symptoms present for about a year prior to
that date of service.
A: Right.
Q: Would that be accurate?
A: I was- yes. Yes. And like I said, again,
it goes back to you just deal with it and hope it gets better.
Q: So that would have been March two thou-
February, March 2011, correct?
A: Yes.
Q: And she said that you- that it
progressively got worse in December of 2011. Do you know what caused that
exacerbation?
A: No, I couldn't tell you.
Q: What symptoms changed, or what were
inflamed?
A: Just more dull pain in the lower back.
Q: And where was it in your lower back that
you were experiencing pain in that 2011, 2012 timeframe?
A: Where was it? In the middle of my back.
...
Q: Okay. All right. And Dr. Grossfeld in 2012
had ordered an MRI, correct?
A: Yes.
Q: And you underwent an MRI of your lower
back-
A: Uh-huh.
Q: -on- there with her services, correct? Or
there at the hospital?
A: They actually- it was High Field Open MRI,
yes. Yeah.
Q: And would you agree with me that in 2012
that those- that MRI showed a disc bulge at L-4, 5 of your lower back?
A: Yes.
Q: And would you agree with me that it showed
a disc protrusion at T12-L1 of your lower back?
A: Yes.
Q: Okay. And did you talk with Dr. Grossfeld
about what caused the bulge and the herniation?
A: No, sir.
Q: Okay. Did you ask her?
A: No. I just always assumed it's from work.
Q: Okay. How would you have described this
and what was the cause and what exactly exacerbated the symptoms?
A: Oh, I didn't. I mean, I didn't discuss any of that with her.
I just, in my own mind, know what caused it.
...
Q: Now, when you first- when you saw Dr.
Grossfeld on March 1, 2012, you told her what your job was, correct?
[no answer in deposition]
Q: And did you tell her that there was that
job that you were performing at that time worsened your symptoms?
A: Well, yeah.
...
Q: Okay. And back in 2008 to 2012, you knew
what the reporting guidelines were at Kellogg's, reporting an injury, correct?
A: Yeah.
Q: Okay. And you didn't report your neck or
your back to your supervisors, did you?
A: Sir, if we report every little thing that
happened to us in the field, we would never get anything done. But yes, I know.
Q: But is this really little stuff, because
you sought treatment from 2008 from Dr. Spalding, you were placed on-
A: No, but-
Q: -significant medications, you sought
treatment from an orthopedic specialist.
A: I want to get better, you know-
Q: But you didn't report them, did you?
A: No.
Regarding Cunningham's cumulative
trauma claim which allegedly manifested on January 28, 2015, Cunningham
testified as follows:
Q: According to the attachment to your
application for injury claim, you are alleging on January 28, 2015, and I will
quote this. 'Due to the nature and duration of my work and specifically repetitive
nature, I developed problems with both shoulders in my cervical spine and from
the constant twisting, turning, and reaching, cumulatively it resulted in an
injury involving both of my shoulder [sic], my neck, both of my knees, and my
low back for which I first sought significant treatment in May of 2014 and was
advised that my medical problems were a result of the activities at work.' So,
that is why I've used 1/28/15 as the date of injury. Is 1/28/15 the date you
saw Dr. Grossfeld and she told you that it was related to your work?
A: Yes, that was- I called her and asked her
specifically and had her to put that into writing for me, yes.
Cunningham treated with Dr. Kilambi for the alleged
problems in her shoulders. As previously noted, she underwent rotator cuff
surgery on her right shoulder after falling at home. In 2011, Cunningham
experienced left shoulder pain and renewed right shoulder pain. She testified
as follows:
Q: And did he [Dr. Kilambi] tell you what your right shoulder
pain had redeveloped in 2011 was caused by?
A: No, sir. If he did I don't recall.
Q: Okay. Did he tell you what caused the left
shoulder complaints that you were making at that time of April 13, 2013?
A: Don't really recall. I speculate that it
was from overuse from this one healing. That's all I can speculate.
Cunningham also treated with Dr.
Kilambi for the alleged work-related condition in her knees. Her testimony is,
in part, as follows:
Q: And I'll read this to you, and you tell me
if- well, let me read this to you first, then I'll ask the question. 'Previous
shoulder pain but now she is starting- I'm sorry, stating bilateral knees have
been hurting over the years.' Is that an accurate statement, that your knees
had been hurting years prior to the treatment of June 16, 2011?
A: Probably so.
Q: And you went to see him because of that
pain, correct?
A: Correct.
Q: He writes, 'She constantly goes up and
down stairs and leans on her knees at work where she is a salesperson.' Did you
provide him the job that you performed?
A: Yes, but that stairs should be ladder and
not stairs.
...
Q: All right. And was it your understanding
when you left Dr. Kilambi on June 16, 2011, if you recall, that the bilateral
knee pain you complained of on that date, and that had been present for years
prior to that, was a result of your work at Kellogg's?
A: I don't recall him saying that, no.
Cunningham testified the protocol at
Kellogg for reporting an injury includes informing her boss, calling the
hotline, and filling out a report. She testified as follows:
Q: And at any time in 2013 or 2014, up until
January 28, 2015, did you call the hotline to report a work-related injury?
A: No, sir. Only when I slipped and fell at
the Wal-Mart, which [sic] matter of fact that was in '13.
Q: Sure. Other than that singular incident-
A: No, sir.
Q: -did- when you had the left shoulder
surgery and the left knee surgery on June 26, 2014, at any time that year prior
to that, or subsequent thereto, until the present time, did you call the
hotline as required by Kellogg's to report a work-related-
A: No, sir.
Q: -injury?...
Cunningham also testified at the
February 17, 2016, hearing. Much of her hearing testimony duplicates her
deposition testimony. Regarding her claim for cumulative trauma injuries, she
testified as follows:
Q: Okay. Now, what we're claiming as it
relates to the cumulative effects of your work, is difficulties with both
shoulders, your neck, both of your knees and your low back, is that accurate?
A: Yes.
Q: Okay. If you would verify this for me. I
took this from your earlier testimony. Doctor Grossfeld, she sent you for an
MRI, then she did surgery on you [sic] left shoulder and your left knee at the
same time.
A: Yes.
Q: All right. And, then ultimately you also
had a surgery on your right shoulder.
A: Correct.
Q: Okay. And, all of those were prepared-
were performed by Doctor Grossfeld?
A: Yes.
Q: Okay. Since then, according to your
deposition, you saw Doctor Nair-
A: Yes.
Q: -you saw Doctor Allstat-
A: Correct.
Q: -and you saw Doctor Spaulding [sic]. I
assume you still see Doctor Spaulding [sic]?
A: Yes. That's my family doctor.
Concerning the issue of notice, in the
April 11, 2016, decision, the ALJ concluded as follows:
As
to notice, KRS 342.185 and KRS 342.190 require it be given to the employer as
soon as practicable. The purposes of the
requirement are three-fold: to enable the employer to provide prompt medical
treatment in an attempt to minimize the worker’s ultimate disability and the
employer’s liability; to enable the employer to make a prompt investigation of
the circumstances of the accident; and to prevent the filing of fictitious
claims. Harlan Fuel Co. v. Burkhardt,
296 S.W.2d 722 (Ky. 1956).
KRS 342.200 provides for three
justifications for a delay in giving notice:
a lack of employer prejudice; knowledge of the injury by the employer,
his agent, or representative; and mistake or other reasonable cause. The facts and circumstances of a case determine
whether notice was given as soon as practicable. Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814 (Ky. 1968). Yates goes
on to state that KRS 342.185 should be liberally construed, and that failure to
give proper notice should not be a bar to recovery if the employer had
knowledge of the injury, or a delay in or failure to provide notice was due to
a mistake or reasonable cause. Id. at
816.
In Goodgame, supra, the Supreme Court of Kentucky recently reaffirmed case law
holding that the obligation to provide notice in a cumulative trauma case
commences on the date disability becomes manifest, which is when a claimant is
advised by a medical expert her claim is work related. This same date triggers the statute of
limitations. See also, Alcan Foil Products
v. Huff, 2 S.W.3d 96 (Ky. 1999).
Cunningham
dismisses the Defendant’s limitations argument based on Dr. Grossfeld’s
establishment of the work relatedness of her condition on January 28,
2015. But the issue is not so
straightforward in that she does not acknowledge her deposition testimony that
the Defendant cites at pages 3-4 of its Brief, wherein she admitted being told
by her family physician, Dr. Spalding, that complaints were work related in
2008. (Dr. Spalding’s records were not
filed.) A close examination of that
testimony, however, reveals Cunningham was speaking about her neck pain.
Cunningham
had, particularly for her, a hard, difficult job; as she said, she worked “like
a daggone dog,” and if she reported an injury every time she had an ache or
pain, she would be doing so constantly.
The nature of repetitive trauma is such that it is difficult to know if
or when to report an injury, which is why Kentucky has adopted the discovery
rule for date of manifestation purposes.
As for all alleged cumulative trauma injuries beyond her cervical spine,
the ALJ finds Cunningham was first put on notice by a medical expert they were
work related when Dr. Grossfeld so informed her on January 28, 2015. The letter sent by her attorney on March 8,
2015, was timely notice to the Defendant of the allegations of injury from
cumulative trauma. Cunningham’s
limitations period as to those injuries simultaneously commenced on January 28,
2015, and thus her claim was timely when it was filed on May 14, 2015. The ALJ finds the claim for a cervical spine
injury from alleged work related cumulative trauma is barred by limitations.
On April 22, 2016, Kellogg filed a
petition for reconsideration. Concerning the issue of notice, Kellogg asserted,
in part, as follows:
7. In this case, Ms. Cunningham testified
that her treating physicians, Dr. Grossfeld, Dr. Kilambi, and Dr. Spalding,
advised her that the right and left shoulder and left knee conditions were work
related in 2012, at the very latest. Additionally, Ms. Cunningham testified
that she always believed her lower back condition was caused by her work at
Kellogg. In the Opinion and Order, the ALJ reasoned that Ms. Cunningham's
testimony on this issue was solely related to the neck condition. Kellogg respectfully
contends that the relevant testimony addressed all of Ms. Cunningham's
cumulative injuries.
...
8. Kellogg recognizes that, as the ALJ
explained, calmative [sic] trauma cases are difficult to unravel. The
difficulty of these cases is often compounded by the fact that plaintiffs
seeking compensation for cumulative trauma injuries have sought medical
treatment for a variety of ailments over the years. Ms. Cunningham's own
testimony and the corresponding medical records, however, establish that her own
physicians advised her that she had work-related conditions by 2012 at the very
latest. When asked why she did not report these conditions to Kellogg, Ms.
Cunningham simply [sic] that she 'wanted to get better.' (Plf depo, 63). With
all due respect, that response does not constitute reasonable cause for her
failure to give due and timely notice.[5]
Kellogg filed an April 26, 2016,
Supplemental Petition for Reconsideration raising issues not germane to this
appeal.
In the Order in response to Kellogg's
petitions for reconsideration, the ALJ stated as follows:
The
primary argument on reconsideration is that Cunningham's claims are barred by
notice or limitations. Since this is a threshold issue, the ALJ addressed it
first in his Opinion. The Defendant addressed these issues on the last page of
its Brief, arguing Cunningham 'was informed by Dr. Grossfeld of the alleged
work-related cause of the widespread aches and pains she alleges within her
cumulative trauma claim as early as 2012.' That assertion is not accurate. Dr.
Grossfeld did not inform Cunningham of the work-related nature of her
complaints until January 28, 2015. She did testify to assumptions or beliefs
about the origin of her complaints prior to that date, but such self-diagnosis
do not trigger the requirements for notice or limitations. [citations omitted]
The
Defendant points to no evidence that Cunningham was advised by a medical
provider of the work relatedness of her complaints before January 28, 2015. The
petition, beginning at page three, sets forth testimony from Cunningham that is
said to support dismissal of the claims to the shoulders, knees, and low back.
As for the 'Shoulders' section, the ALJ found Cunningham to be speaking of neck
complaints, not the shoulders. As for 'Knees,' the cited testimony does not
even purport to suggest that Dr. Kilambi had informed her that knee complaints
were work related. The same is true for 'Lower Back'; the testimony from
Cunningham cited by the Defendant expressly states she did not have a conversation
with Dr. Grossfeld about causation in 2012.
On appeal, Kellogg contends the ALJ
erred in finding notice of cumulative trauma injuries to Cunningham's
shoulders, knees, and low back was timely. It sets forth the following in a
section entitled "Ms. Cunningham's Medical History and the Alleged
Cumulative Trauma":
It is not disputed that Ms.
Cunningham sought treatment for her bilateral knees, bilateral shoulders, neck,
and low back from 2008 to 2012. Exhaustive medical records have been submitted
by both parties. The following represents a concise chronology of Ms.
Cunningham's treatment history for the alleged cumulative trauma conditions:
a. 6/17/2009: Patient had
onset of right shoulder pain 4/26/09 when she slipped and fell at home.....She does
appear to have rotator cuff bursitis and tendinitis [footnote: "June 17,
2009 Report of Nevin R. Kilambi, M.D. filed on [sic] the Record November 13,
2015."]
b. 6/16/2011: She now was
[sic] a new problem. Bilateral knee pain. She states bilateral knees have been
hurting over the years. She constantly goes up and down stairs and leans on her
knees at work. [Footnote: "June 16, 2009 [sic] Report of Nevin R. Kilambi,
M.D. filed on [sic] the Record November 13, 2015."]
c. 3/1/2012: Lumbar spine
pain. Pain radiates down her right lower extremity. Symptoms have been present
for about a year but got progressively worse in December...Lumbar spine MRI. 1.
L4-5 broad based disc bulge. 2. T12-L1 right paracentral disc protrusion.
[Footnote: "March 1, 2012 Report of Stacie L. Gorssfeld [sic], M.D. filed
on [sic] the Record November 13, 2015."]
The above is a mere snippet
of Ms. Cunningham's exhaustive medical records that include references to the
low back, right and left shoulder, and left knee conditions. These references
clearly establish that by 2012, at the absolute latest, Ms. Cunningham had
notice of the alleged cumulative trauma injuries. Most notable with regard to
the shoulder and bilateral knee pain, the June 16, 2011 record states as
follows:
[Ms. Cunningham] Follows up
today with regard to a new condition. Previous shoulder pain, but now she is
stating bilateral knees have been hurting over the years. She constantly goes
up and down stairs and leans on her knees at work where she is a a [sic] salesperson,
but she never really had anybody look at it much. [Footnote: "June 16,
2009 Report of Nevin R. Kilambi, M.D. filed on [sic] the Record November 13,
2015."]
With regard to the lower
back condition, the March 1, 2012 medical records from Dr. Grossfeld states as
follows:
The patient is a 54-year-old
female that presents to the office with a chief complaint of pain about her
lumbar spine. She also complains of pain radiating down her lower
extremity.....She states that her symptomatology is [sic] been present for
about a year but got progressively worse in December. She started seeing a
chiropractor that time and went through a series of adjustments....She's never
had any formal physical therapy of an MRI scan. She currently rates her pain
8/10 on the VAS pains scale.
Her occupation
is a salesperson
which requires her to open 200 cases a [sic] product per day lifting 5-40
pounds. She states that were [sic]
carefully [sic] worsens her symptomatology. [footnote: "March 1, 2012
Report of Stacie L. Grossfeld, M.D. filed on [sic] the Record November 13,
2015."] (emphasis in original).
As indicated in the above,
many of Ms. Cunningham's treating physicians over the years explicitly
connected the physical requirements of her employment with Kellogg when diagnosing
the cumulative trauma injuries. Dr. Grossfeld's 2012 record is no [sic] a model
of written clarity. However, a reasonable reading of the note - 'She states
that were carefully worsens her symptomatology'- establishes that Ms.
Cunningham informed Dr. Grossfeld her position as a salesperson 'worsens her
symptomatology.' [footnote omitted].
Kellogg cites testimony from
Cunningham's deposition which it contends indicates she had "notice"
her cumulative trauma injuries were work-related.
As the claimant in a workers’
compensation proceeding, Cunningham had the burden of proving each of the
essential elements of his cause of action, including notice. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Cunningham was successful
in her burden, the
question on appeal is whether substantial evidence supports the ALJ’s
decision. Wolf Creek Collieries v.
Crum, 673 S.W.2d 735 (Ky. App. 1984).
“Substantial evidence” is defined as evidence
of relevant consequence having the fitness to induce conviction in the minds of
reasonable persons. Smyzer v. B. F.
Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the discretion to determine all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it comes from the same
witness or the same adversary party’s total proof. Magic Coal Co. v. Fox,
19 S.W.3d 88 (Ky. 2000). Although a party may note evidence that would have
supported a different outcome than that reached by an ALJ, such proof is not an
adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it must be shown there was no evidence of substantial probative value to support the decision. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Where evidence is conflicting, the ALJ, as
fact-finder, has the discretion to pick and choose whom and what to believe. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977).
The Board, as an appellate tribunal,
may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals
as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise
could have been drawn from the record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
So long as the ALJ’s ruling with regard to an issue is supported by substantial
evidence, it may not be disturbed on appeal. Special
Fund v. Francis, supra.
KRS 342.185(1) requires notice of an
accident to be given to the employer “as soon as practicable” after the
accident. Implicit in the finding of a
gradual injury is a finding no single instance of workplace trauma caused an
injury of appreciable proportion. Hill
v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). For that reason, in cumulative trauma claims,
the date triggering the obligation to give notice is the “manifestation of
disability,” which is the date a worker first learns he or she has sustained a
gradual injury and knows it is due to his or her work. Alcan Foil Products v. Huff, 2 S.W.3d
96 (Ky. 1999).
A worker is not required to
self-diagnose the cause of a harmful change as being a work-related cumulative
trauma injury. See American Printing House for the Blind v. Brown, 142
S.W.3d 145 (Ky. 2004). Rather, a
physician must diagnose the condition and its work-relatedness.
Until informed by Dr. Grossfeld on
January 28, 2015, that the cumulative trauma injuries to her shoulders and low
back were work-related, Cunningham was not obligated to notify Kellogg.[6]
Additionally, until Dr. Grossfeld's letter of May 1, 2015, Cunningham was not
obligated to provide notice of her left knee cumulative trauma claim.[7]
None
of the medical evidence from Drs. Kilambi or Grossfeld cited by Kellogg
demonstrates Cunningham was directly informed by these physicians that her
cumulative trauma injuries to her shoulders, low back, and left knee were work-related.
Likewise, Cunningham's deposition testimony, cited by Kellogg in its brief,
fails to indicate an admission that she was unmistakably aware her cumulative
trauma injuries to her shoulders, low back, and left knee were work-related before
January 28, 2015. Whether Cunningham believed her injuries were work-related is
wholly irrelevant concerning the question of when Cunningham is required to
give notice to her employer of her cumulative trauma injuries.
Substantial evidence supports the ALJ’s determination
Cunningham was first advised she had gradual work-related injuries by Dr. Grossfeld on January 28, 2015, and that
Cunningham ultimately gave due and timely notice of her alleged cumulative
trauma injuries to her shoulders, low back, and left knee. Because the ALJ’s
finding concerning the issue of whether Cunningham gave due and timely notice
is supported by substantial evidence, we are without authority to disturb this
decision on appeal. Special Fund v.
Francis, supra.
Accordingly, the April 11, 2016, Opinion and Order
and the undated Order ruling on Kellogg's petition for reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MARK R BUSH
250 GRANDVIEW DR STE 550
FT MITCHELL KY 41017
COUNSEL
FOR RESPONDENT:
HON WAYNE C DAUB
600 W MAIN ST STE 300
LOUISVILLE KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON
DOUGLAS W GOTT
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The Order on Kellogg's petition for
reconsideration is undated.
[2] The ALJ dismissed Cunningham's alleged
cumulative trauma injuries to her neck and right knee. No party has contested
this determination.
[3] We note the ALJ dismissed Cunningham's right
knee cumulative trauma injury. Thus, Kellogg's inclusion of this injury in its
appeal brief to this Board is erroneous.
[4] The record does not reveal Dr. Spalding’s
first name as those records were not introduced into evidence.
[5] As an alternative, the ALJ also dismissed
Cunningham's cumulative trauma neck claim based upon Dr. Bilkey's opinion that
she has no impairment rating.
[6] We have omitted Dr. Grossfeld's opinions
regarding Cunningham's neck as the ALJ dismissed this injury.
[7] Cunningham's claim for a cumulative trauma
injury to her right knee was dismissed by the ALJ.
