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June 30, 2017 201560244

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  June 30, 2017

 

 

CLAIM NO. 201560244

 

 

DURAFLAME, INC.                                PETITIONER

 

 

 

VS.        APPEAL FROM HON. JEANIE OWEN MILLER,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DEBBIE HAMPTON and

HON. JEANIE OWEN MILLER,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.   Duraflame, Inc. (“Duraflame”) appeals from the Opinion, Award and Order rendered January 30, 2017 by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”).  The ALJ found Debbie Hampton (“Hampton”) provided due and timely notice of her low back and bilateral carpal tunnel syndrome (“CTS”) conditions, and additionally found her claims are not barred by the statute of limitations.  The ALJ determined these conditions are due to cumulative trauma she sustained while working for Duraflame, and awarded permanent total disability (“PTD”) and medical benefits.  Duraflame also appeals from the March 3, 2017 order on petition for reconsideration. 

          On appeal, Duraflame argues the ALJ’s analysis regarding notice of the bilateral CTS is inadequate and, in the alternative, she failed to use the proper standard pursuant to Hill v. Sextet Mining Corporation, 65 S.W.3d 503 (Ky. 2001).  Duraflame argues Hampton sustained an acute, rather than a cumulative, injury to her low back in 2007 or 2008 for which she did not provide notice until 2016.  For similar reasons, Duraflame argues the ALJ erred in finding the claims are not barred by the statute of limitations.  Duraflame argues the ALJ erred in finding Hampton permanently, totally disabled.  Because substantial evidence supports the ALJ’s determination Hampton sustained a low back injury due to cumulative trauma for which she provided due and timely notice, and the claim was not barred by the statute of limitations, we affirm in part.  However, because the ALJ failed to determine the manifestation date and provided an insufficient analysis addressing notice and statute of limitations regarding Hampton’s bilateral CTS, we vacate in part and remand to the ALJ for additional findings of fact and analysis.     

          Hampton filed a Form 101 on June 20, 2016 alleging bilateral CTS and a low back injury due to cumulative trauma she was subjected to while working for Duraflame.  Hampton identified September 21, 2015 as the date of injury.  The ALJ subsequently granted Hampton’s motion to amend the date of injury to November 16, 2015, which is also the last day she worked for Duraflame. 

          Hampton testified by deposition on August 30, 2016, and at the hearing held November 29, 2016.  Hampton was born in April 1957 and resides in Waynesburg, Kentucky.  Hampton graduated from high school and has no specialized or vocational training.  Hampton’s work history includes working at a factory loading a computerized sewing machine and as a pharmacy technician.  Hampton began working for Duraflame in October 2000.  She initially worked as a packer before becoming a bliss operator.  She worked ten-hour shifts, forty hours per week, with occasional overtime.  As a bliss operator, she tore apart and broke down cardboard from a skid, lifted it in stacks, and loaded the machine on the right and left sides.  Hampton stated her job required repetitive bending, twisting, turning and lifting.  She estimated each stack of cardboard she lifted weighed approximately twenty to thirty pounds, and she lifted and loaded as many as two hundred stacks of cardboard in one shift. She quit working on November 16, 2015 due to her CTS.

          At her deposition, Hampton testified she had previously experienced symptoms in her low back within the past fifteen years for which she sought treatment with Drs. Patrick Jenkins and Chris Sims.  Hampton stated she did not know why or how she hurt her low back, but her symptoms occurred while at work for Duraflame.  Hampton stated she was prescribed Ibuprofen for her complaints.  Hampton previously experienced low back pain in 2007 or 2008, while performing her job duties at Duraflame.  She sought treatment with Dr. Jenkins, who did not inform her the low back condition was work-related.  She also treated with Dr. Sims in 2015, who referred her to Dr. Tibbs.  She had an MRI and several epidural injections. 

          At the hearing, Hampton agreed she experienced low back symptoms on and off for years but in June, July or August 2015 her pain significantly worsened.  On cross-examination, Hampton acknowledged reporting to Dr. Burke she had a “bulging herniated disc” in 1985, but “overcame all of that.”  Hampton did not know what caused the bulging disc and/or pain.  Hampton acknowledged she had low back pain in 2007 or 2008 and was treated by Dr. Jenkins.  Hampton stated she did not believe Dr. Jenkins attributed her low back symptoms to her work duties at that time.  Hampton continues to have low back pain radiating down both legs, and is unable to sit or stand for prolonged periods.  Dr. Sims prescribes Tramadol and Flexeril for her complaints.  Considering her low back condition alone, Hampton does not believe she can return to her former job with Duraflame.  

          At her deposition, Hampton testified she began experiencing symptoms in both upper extremities, “about my third month when I started working there” in 2000 and 2001.  She provided the following testimony regarding what Dr. Jenkins told her at the time:

Q:  So, you had symptoms in 2000 but you didn’t - - -

 

A:  Well, I mean, yes.  Then I went and seen Dr. Jenkins a couple - - a few times over that.

 

Q:  So the first doctor you would have seen for the carpal tunnel would have been Dr. Jenkins?

 

A:  Yes, I believe so.

 

Q:  What did you end up telling Dr. Jenkins at that time?

 

A:  The numbness, the tingling, the pain at night, the pain all day in my wrists, my hands, gripping things.

 

Q:  Would that have been - - I guess just to be clear on the date, would that have been around 2000 or 2001?

 

A:  Yes. 

 

Q:  At that time, did you tell him about your work activities?

 

A:  Yes.

 

Q:  Did he make comments to you about your work activities and how they might be interacting with your wrists?

 

A:  Yes, he did say that.

 

Q:  And by that, you mean that he believed that the work was contributing to the wrist pain?

 

A:  Absolutely, yes.

 

Q:  And at that time, that was in both arms, right?

 

A:  Yes.

 

          Dr. Jenkins prescribed splints which Hampton used on and off for over fourteen years.  Hampton indicated she did not seek treatment again for her upper extremities condition until either 2014 or 2015 when she saw a physician at Lake Cumberland Medical Associates.  Subsequent to an EMG/NCV study, Hampton was referred to Dr. Margaret Napolitano who performed a right carpal tunnel release in November 2015, and a left carpal tunnel release in January 2016.   

          At the hearing, Hampton stated as follows regarding her bilateral upper extremities: 

Q:  Okay.  Now, I want to ask you, you have testified, well, regarding your wrist, I believe, you admitted that doctors told you years ago when you had some carpal tunnel syndrome for years, and the doctors said that the work you did might have caused it; that’s true?

 

A:  Yes.

 

Q:  The question is, how bad was it before 2015?  What - - what - - how did the condition change in 2015? You tell us when it changed and how it changed.

 

A:  Okay.  When I first started there, I was a packer.  I packed the logs.  And they came down the line.  Well, that was - - okay, I hadn’t done that job very long.  I’m starting to have trouble with my wrist then and my thumb swelling.  So I had - - had to go report it, and they sent me to the doctor.  And I was always getting tendonitis in my wrist and my thumbs and my fingers.  So this - - the Bliss operator job came available, so I was on that from - - I might as well say 15 years.

 

Q:  So back when you first started, they called it tendonitis?

 

A:  Oh, back, yeah, when it was all still in the early stages.

 

Q:  So when you got on the - - when you got on the new job that you did for 15 years, were you getting treatment for carpal tunnel that - - that - - those years before 2015?

 

A:  Just maybe once or twice, but gradually over the years, bending constant, doing this all day, then tearing and ripping the cardboard, it worked it up till September.  I couldn’t take it anymore.  So I had to say something. 

 

          Hampton testified her CTS surgeries provided no relief.  She continues to experience pain in her hands, wrists and fingers radiating into her shoulder, as well as swelling and loss of grip strength.  Dr. Sims prescribes Flexeril for her CTS.  Hampton does not believe she is able to return to her prior job with Duraflame considering her bilateral hand condition alone.  Hampton additionally indicated the Flexeril and Tramadol make her drowsy, and impair her ability to operate machinery or drive.  Hampton has never had a sit-down office job, and does not believe she can perform this type of work because she is unable to sit for long periods.      

          Duraflame filed the records of Dr. Napolitano, who began treating Hampton’s bilateral upper extremity condition in November 2015.  An October 20, 2015 EMG/NCV by Dr. Ellen Ballard revealed evidence of moderate bilateral CTS affecting sensory and motor components.  On November 3, 2015, Dr. Napolitano diagnosed Hampton with bilateral CTS, and noted her symptoms began in June or July 2015.  On November 17, 2015, Dr. Napolitano performed a right carpal tunnel release and left carpal tunnel injection.  On January 19, 2016, Dr. Napolitano performed a left carpal tunnel release.  Dr. Napolitano ordered physical therapy and a period of light duty following each procedure.  Despite Hampton’s continued complaints of bilateral hand symptoms, Dr. Napolitano released her to regular duty with no permanent restrictions on April 25, 2016.  Dr. Napolitano found Hampton had attained maximum medical improvement (“MMI”) and did not assess an impairment rating.   

          Hampton also filed the May 19, 2016 report of Dr. Frank Burke, who noted she developed bilateral hand symptoms while working as a bliss operator.  He also noted Hampton had chronic low back pain in the 1990s, which did not prevent her from working.  Dr. Burke noted Hampton’s low back pain progressed and then developed new left buttock pain radiating into the left lower extremity, along with numbness and tingling.  Dr. Burke diagnosed Hampton with development of progressive bilateral CTS with both motor and sensory components, attributing her condition to her job duties at Duraflame.  Dr. Burke found Hampton was at MMI and assessed a 4% impairment rating for her bilateral CTS condition.  

          Dr. Burke also noted Hampton “developed the radicular pain component in the later summer and early fall of 2015 and completed a work-up for chronic progressive LBP with newly evolved radicular pain.”  Dr. Burke opined Hampton’s job duties of forward bending, twisting and pulling/loading over her career with Duraflame likely caused the progression of her degenerative disc disease with the development of her radicular pain pattern.  Dr. Burke assessed a 7% impairment rating for her left radicular pain pattern with low back strain. 

          Dr. Burke assigned permanent restrictions related to her bilateral hand condition and low back condition.  He opined Hampton is unable to safely return to her former job with Duraflame with regard to her bilateral CTS condition. Dr. Burke also opined Hampton is unable to return to activities which require prolonged sitting, standing, crawling or climbing with regard to her low back.  

          Hampton also filed a letter her counsel sent to Duraflame dated June 2, 2016 notifying it of her low back and bilateral CTS conditions based upon Dr. Burke’s May 19, 2016 report.

          Duraflame filed the October 18, 2016 report of Dr. Daniel Primm.  He diagnosed Hampton with a history of bilateral CTS, bilateral carpal tunnel releases with very good clinical result, and age-related degenerative disc disease of the lumbar spine aggravated by obesity.  Dr. Primm found no objective evidence of a ratable impairment rating for either condition.  Dr. Primm stated Hampton had a pre-existing low back condition consistent with her age and body habitus, but did not result in any disability.  Dr. Primm found her current low back symptoms unrelated to her work activities.  He did not assign any permanent restrictions and opined Hampton is able to return to her job with Duraflame in terms of her low back.

          A Benefit Review Conference was held on November 18, 2018.  The parties stipulated Duraflame voluntarily paid temporary total disability (“TTD”) benefits for the wrists only from November 17, 2015 through March 26, 2016, as well as medical benefits.  The parties identified the following contested issues:  benefits per KRS 342.730 (PPD and PTD), work-relatedness/causation, injury as defined by the Act, notice and statute of limitations (low back), unpaid medical expenses (low back), TTD benefits, and exclusion for pre-existing disability/impairment for low back.  At the hearing, the ALJ granted Duraflame’s motion to add statute of limitations and notice for the wrists as contested issues.    

          The ALJ provided the following analysis for notice and statute of limitations: 

2.   Notice and Statute of         Limitations

 

In the case of Brummitt vs. Southeastern Kentucky Rehabilitation Industries, 156 SW3d 276 (Ky. 2005) the Kentucky Supreme Court noted:

 

[T]his manifestation of disability date is a fact intensive determination by the fact finder based upon the particular circumstances in each case.... [A]n ALI is authorized to conclude, if supported by evidence of record that a disability could manifest on the date the claimant seeks treatment and is informed on that occasion that her condition is related to her work.

 

However, the Brummitt, supra, case, as well as the subsequent case of unpublished case of Johnson vs. Bluegrass Cooperage, 2006-SC-0340-WC (Ky. 2007), requires the ALJ to apply the holding in Special Fund vs. Clark, 998 SW2d 487 (Ky. 1999) and "consider the effect of work performed within the two-year period before each claim was filed."  This ALJ is charged thereby with determining: (1) whether the claimant sustained repetitive or cumulative trauma from work performed within the two-year period before the application was filed; (2) and whether it caused a harmful change in her bilateral wrists and her lumbar spine, and (3) whether such a change entitled her to any benefits.

 

The Low Back - Plaintiff filed into evidence a letter penned by her attorney dated June 2, 2016. The letter is addressed to Plaintiff's employer, and stated plainly that counsel for Plaintiff had just received the evaluation of Dr. Frank Burke, which was attached with the letter. The employer was notified that Dr. Burke had opined the low back condition was related to her work, and that notice was being provided of Plaintiff's intent to pursue a claim for the low back. Dr. Burke saw the Plaintiff on May 19, 2016, but there is no evidence anywhere in the record that Plaintiff, nor her counsel, knew that a doctor had opined that her low back condition was work-related until Dr. Burke's report was received by counsel for Plaintiff.  For these reasons, I find that the Plaintiff has complied with the statutory [sic] and case holdings regarding the timeliness of notice and filing of her claim regarding her low back.

 

Bilateral carpal tunnel - Plaintiff testified she saw Dr. Jenkins in 2001.  Dr. Jenkins believed her work duties contributed to her pain. He recommended she wear splints during the day while working.  She also slept in splints at night. She wore splints "off and on" for 14 years. Sometime in 2014 or 2015, Plaintiff began to see Dr. Robin Goff who did  an EMG but it was unclear to the Plaintiff the results of the EMG. Eventually, it appears that Dr. Goff recommended Ms. Hampton for further treatment. Dr. Goff is noted to have referred her to Kutz and Kleinert (Dr. Margaret Napalitano in Lexington) and in the history taken by Dr. Napalitano she notes:

 

Pt noticed pain in her right and left wrists and arms with subsequent swelling in both hands. The pain has begun to get progressively worse. Pt states that the symptoms are keeping her up at night and interfering with her daily activities.  Pt works in factory and does a lot of repetitive motions. Pt sought treatment from Dr. Ruby at Lake Cumberland Medical Associates. Dr. Ruby then referred her to get an EMG here in Lexington. Pt was then referred to KK. Pt has been wearing braces on both hands for couple of months during the day and night.

 

Ms. Hampton testified that her right wrist surgery was on November 17, 2015 and her left wrist surgery was on January 19, 2016. The Defendant/ employer accepted and paid the claim for bilateral carpal tunnel syndrome, and it is noted that the Defendant paid temporary total disability from November 17, 2015 (the date of the first CTS surgery) until 3/26/2016.  Ms. Hampton filed her claim on June 20, 2016, less than three months after the cessation of her TTD benefits.

 

Here, there is no evidence contradicting the Plaintiff's testimony that her symptoms progressively worsened to the point that in the summer of 2015 she sought medical treatment, and was referred to a surgeon only after the results of a EMG were known. The two years before the beginning of voluntary TTD payments (which began on November 17, 2015), Ms. Hampton had been doing her regular repetitive work --- which caused her symptoms to worsen to the point of interfering with her daily activities. There is substantial medical evidence in the record here for the undersigned to find that Ms. Hampton: (1) sustained repetitive or cumulative trauma from her work performed within the two-year period before her application for workers compensation benefits was filed; (2) that the repetitive trauma caused a harmful change in both of her wrists; and (3) that those changed[sic] entitle her to benefits.  For these reasons, I find that Ms. Hamptons' low back and bilateral wrists conditions were timely filed and that the defendants have not proven the affirmative defense of statute of limitation bars the plaintiff's claim. For this finding I rely on the medical records of Dr. Napalitano, the opinion of Dr. Burke, and the testimony of the plaintiff, which was not rebutted by the Defendant.

 

          The ALJ determined Hampton’s medical conditions were caused by the cumulative trauma injuries she sustained to the lumbar spine and bilateral wrists while working for Duraflame based upon Dr. Burke’s opinion.  Based upon the medical and lay testimony, the ALJ determined Hampton is permanently totally disabled, and awarded PTD and medical benefits. 

          Duraflame filed a petition for reconsideration requesting the ALJ identify the impairment rating she relied upon in finding Hampton permanently totally disabled.  Duraflame argued the ALJ should have conducted a notice analysis for the low back condition based on an acute injury, rather than one due to cumulative trauma.  Regarding the bilateral CTS, Duraflame argued the ALJ failed to apportion Hampton’s impairment for the two-year period that was not barred by the statute of limitations.  Duraflame requested additional findings of fact regarding Hampton’s inability to perform any job including a sedentary one, on a regular and sustained basis.

          Hampton filed a petition for reconsideration requesting the ALJ specifically find the impairment ratings assessed by Dr. Burke occurred within the two-year compensable period for her low back and CTS conditions.  Hampton requested a finding that both injuries simultaneously and independently resulted in total disability.     

          The ALJ granted, in part, Duraflame’s petition and adopted the 4% impairment rating for the wrists and the 7% impairment rating for the low back assessed by Dr. Burke.  The ALJ denied the remainder of Duraflame’s petition.  The ALJ reiterated Hampton’s low back condition is due to cumulative trauma and she had no pre-existing active disability at the time it manifested.  The ALJ additionally found the impairment rating for the wrists was incurred within the two years before her manifestation of the cumulative trauma on November 16, 2015.  In making this determination, the ALJ relied upon Hampton’s testimony her symptoms worsened in the summer or fall of 2015, the medical history discussed by Dr. Napolitano and the fact Hampton was under no restrictions prior to her injury.  The ALJ found no patent errors in her analysis of permanent total disability.

          The ALJ granted Hampton’s petition for reconsideration.  The ALJ found the low back impairment rating was incurred within the last two years before the manifestation of the low back condition since she worked regularly without restrictions and she had no impairment prior to the November 16, 2015 work injury.  The ALJ also found the low back and bilateral wrist injuries independently resulted in her total disability.    

          On appeal, Duraflame argues the ALJ applied the wrong standard on the issue of notice of Hampton’s bilateral wrist problems.  It asserts the ALJ used, “the standard of work-relatedness in conjunction with the theory of accumulation of impairment over time to find that notice was timely.  The ALJ did not rely on substantial probative evidence in making this finding.”  Duraflame asserts the ALJ ignored Hampton’s admission she was diagnosed with a work-related condition in 2001 by Dr. Jenkins, but did not give notice until 2015.  It also asserts the ALJ failed to specify the testimony of Hampton she found probative.  Duraflame also argues the ALJ failed to apply the standard set forth in Hill v. Sextet Mining Corporation, supra.

          Regarding her low back injury, Duraflame argues Hampton sustained an acute, work-related injury in 2007 or 2008 based upon her testimony for which she failed to provide notice until after her examination by Dr. Burke in 2016. 

          Duraflame also argues the ALJ misapplied the statute of limitations.  It asserts the ALJ found notice was timely for her cumulative trauma, and therefore the statute of limitations did not bar the claim.  Duraflame cites to Brockway v. Rockwell, Int’l, 907 S.W.2d 166 (Ky. App. 1995).  Duraflame states Hampton was diagnosed with a work-related wrist condition in 2001 and continued working for fourteen years.  Similarly, Duraflame asserts Hampton sustained an acute low back injury in 2007 or 2008 but failed to report it.  Duraflame argues the ALJ should have determined the deadline for filing a claim for the wrist and low back would have been several years ago. 

          Finally, Duraflame argues the evidence does not support a finding of permanent total disability. 

          As the claimant in a workers’ compensation proceeding, Hampton had the burden of proving each of the essential elements of her cause of action, including due and timely notice.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Hampton was successful in her burden, the question on appeal is whether there was substantial evidence of record to support 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).  

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  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 (Ky. 1986).

          We begin our analysis by addressing Duraflame’s argument Hampton sustained an acute low back injury in 2007 or 2008 rather than a cumulative trauma injury.  A cumulative trauma injury must be distinguished from an acute trauma injury where a single traumatic event causes the injury.  The record contains substantial evidence supporting the ALJ’s conclusion Hampton’s low back condition is the result of cumulative trauma she sustained while working for Duraflame.  Dr. Burke opined Hampton, “developed the radicular pain component in the later summer and early fall of 2015 and completed a work-up for chronic progressive LBP with newly evolved radicular pain.”  Dr. Burke opined Hampton’s job duties of forward bending, twisting and pulling/loading over her career with Duraflame likely caused the progression of her degenerative disc disease with the development of her radicular pain pattern. 

           At her deposition, Hampton stated she had injured her low back “years ago.”  She did not know how this injury occurred, but agreed it happened within the last fifteen years and while working for Duraflame.  She began experiencing low back pain again in 2007 or 2008.   She stated she experienced low back pain off and on at that time when she “would pull apart the cardboard, lift the cardboard, bend all the way down to the floor to finish up the pallet or the cardboard, the twisting and turning of the cardboard.”  She saw Dr. Jenkins at the time, and was prescribed Ibuprofen.  At the hearing, Hampton agreed she had low back symptoms on and off for years, but she experienced increased pain in the summer or fall of 2015. 

          Duraflame urges the Board to interpret Hampton’s testimony regarding her low back symptoms in 2007 and 2008 as an acute injury.  However, Hampton did not testify as to a single traumatic event causing her low back pain in 2007 or 2008.  Rather, she indicated she experienced pain off and on while engaged in repetitive work activities at Duraflame, but that her symptoms significantly worsened in the fall or summer of 2015.  Dr. Burke’s opinion, as well as Hampton’s testimony, supports the ALJ’s conclusion her low back condition is the result of cumulative trauma she sustained due to her work activities with Duraflame.  While Hampton may have sustained an acute low back injury in 2007 or 2008, based upon the evidence, the ALJ did not err in finding Hampton sustained a low back injury caused by the repetitive or cumulative activities of her job, and this is not challenged by Duraflame.

          With that said, we vacate in part, and remand the claim for the ALJ to provide additional analysis and findings of fact regarding notice and statute of limitations for Hampton’s bilateral CTS claim only.  In her “notice and statute of limitations” analysis addressing the CTS, the ALJ failed to clearly determine the date of manifestation and only addressed the statute of limitations.  The ALJ indicated November 17, 2015, the day Duraflame began voluntarily paying TTD benefits, as the manifestation date.  In the order on reconsideration, the ALJ stated the manifestation date as November 16, 2015, which is also the day Hampton ceased working. 

          KRS 342.185(1) provides notice of an accident shall be given, “as soon as practicable” and that the claim for benefits to a resulting injury must be filed within two years “after the date of accident” or following the suspension of payment of income benefits, whichever is later.  In injury claims caused by cumulative trauma, the date for giving notice and for clocking the statute of limitations is triggered by the date of manifestation.  Special Fund v. Clark, 998 S.W.2d 487 (Ky. 1999).  In Randall Co. v. Pendland, 770 S.W.2d 687, 688 (Ky. App. 1989), the Kentucky Court of Appeals adopted a rule of discovery with regard to injuries caused by cumulative trauma, holding the date of injury is “when the disabling reality of the injuries becomes manifest.”  In Special Fund v. Clark, 998 S.W.2d at 490, the Kentucky Supreme Court defined "manifestation" in a cumulative trauma injury claim as follows:

In view of the foregoing, we construed the meaning of the term ‘manifestation of disability,’ as it was used in Randall Co. v. Pendland, as referring to physically and/or occupationally disabling symptoms which lead the worker to discover that a work-related injury has been sustained.

 

          An injury caused by cumulative trauma manifests when "a worker discovers that a physically disabling injury has been sustained [and] knows it is caused by work.”  Alcan Foil Products v. Huff, 2 S.W.3d 96, 101 (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.  A determination of whether the CTS manifested on November 16, 2015 or November 17, 2015 makes little difference.  Clearly, Duraflame had adequate notice based upon the fact it timely instituted the payment of benefits.

         In this instance, Hampton alleged cumulative trauma injuries to her low back and bilateral wrists.   Therefore, the threshold issue to be determined is the date of manifestation for both conditions.  With regard to the low back, the ALJ clearly found the date of Dr. Burke’s report, May 19, 2016, as the date of manifestation noting, “there is no evidence anywhere in the record that Plaintiff, nor her counsel, knew that a doctor had opined that her low back condition was work-related until Dr. Burke's report was received by counsel for Plaintiff.”

          Indeed, Hampton indicated she experienced low back pain within the last fifteen years while at work but did not indicate her treating physician informed her the condition was caused by her work.  Although Hampton experienced low back pain since 2007 or 2008, she testified Dr. Jenkins did not inform her the low back pain was due to her work activities at that time.  Her low back progressively worsened in the summer or fall of 2015 which prompted her to seek treatment.  Dr. Burke examined her on May 19, 2016 and opined her job duties likely caused the progression of her degenerative disc disease with development of a radicular pain pattern.  With the exception of the reports by Drs. Burke and Primm, no other medical records where submitted regarding Hampton’s low back condition. 

          Therefore, Hampton’s testimony, in conjunction with the lack of medical proof establishing a prior date of knowledge, constitutes substantial evidence supporting the ALJ’s determination she was first advised she had a gradual work-related low back injury by Dr. Burke on May 19, 2016.  Furthermore, the ALJ could reasonably conclude notice given following Dr. Burke’s evaluation was timely and that her claim was not barred by the statute of limitations since she notified Duraflame via letter dated June 2, 2016 and filed her Form 101 on June 20, 2016.  Because the ALJ’s finding concerning the issues of notice and statute of limitations regarding her low back condition is supported by substantial evidence, we are without authority to disturb her decision on appeal.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

         The same cannot be said regarding the ALJ’s notice/ statute of limitation analysis for the bilateral CTS condition.   In the opinion and order on reconsideration, the ALJ did not determine the date of manifestation of Hampton’s bilateral CTS condition based upon when she first learned she had sustained a gradual injury and knew it was due to her work.  Rather, the ALJ utilized the date when Hampton stopped working and began receiving voluntary TTD benefits from Duraflame.  Furthermore, it appears the ALJ only considered the statute of limitations or utilized the same analysis for both issues of notice and statute of limitations.     

         Hampton testified at her deposition she began experiencing numbness, tingling, pain and gripping difficulty in both wrists three months after she started working for Duraflame, in either 2000 or 2001.  She treated with Dr. Jenkins, and Hampton admitted at that time he informed her that her work was contributing to her bilateral wrist pain.  Similarly, at the hearing, Hampton agreed to the follow question:

Q:  Okay.  Now, I want to ask you, you have testified, well, regarding your wrist, I believe, you admitted that doctors told you years ago when you had some carpal tunnel syndrome for years, and the doctors said that the work you did might have caused it; that’s true?

 

A:  Yes.

 

Dr. Jenkins prescribed splints, which Hampton has used on and off for fourteen years.  Although she did not seek treatment again for her upper extremities condition until either 2014 or 2015.   Hampton indicated her bilateral upper extremity symptoms worsened over the next fourteen or fifteen years to the point where she sought treatment in 2015.  Subsequent to an EMG/NCV study in October 2015, Hampton was referred to Dr. Napolitano.  Her notes do not indicate prior symptoms in 2000 or 2001.  Dr. Napolitano identified June/July 2015 as the date of onset of symptoms.  No other medical records predating 2015 where submitted by the parties. 

         On remand, the ALJ is directed to determine the date of manifestation for Hampton’s bilateral CTS condition pursuant to Randall Co. v. Pendland, supra; Alcan Foil Products v. Huff, supra; and American Printing House for the Blind v. Brown, supra.  In addressing the date of manifestation, the ALJ must specifically address Hampton’s testimony indicating Dr. Jenkins had informed her in 2000 or 2001 that her bilateral wrist symptoms were caused by her work activities.  

         Once the ALJ makes a determination regarding the manifestation date, she can then address whether Hampton provided due and timely notice of her CTS condition, and whether the statute of limitations barred her claim.  If the ALJ determines Hampton provided due and timely notice of her injury, and her claim is not barred by the statute of limitations, she is directed to address all remaining issues identified by the parties in the November 18, 2016 benefit review conference memorandum, and as amended at the final hearing.  We decline to address Duraflame’s argument regarding the ALJ’s finding of permanent total disability as pre-mature in light of this opinion. 

         Accordingly, the January 30, 2017 Opinion, Award and Order and the March 3, 2017 Order on reconsideration by Hon. Jeanie Owen Miller, Administrative Law Judge, is hereby AFFIRMED IN PART, AND VACATED IN PART.  This matter is REMANDED for additional findings consistent with the views expressed herein.           

              ALL CONCUR.

 

 

 

COUNSEL FOR PETITIONER:

 

HON STEVEN L KIMBLER

3292 EAGLE VIEW LANE, STE 350

LEXINGTON, KY 40509

 

COUNSEL FOR RESPONDENT:

 

HON JACKSON W WATTS

131 MORGAN STREET

VERSAILLES, KY 40383

 

ADMINISTRATIVE LAW JUDGE:

 

HON JEANIE OWEN MILLER 

657 CHAMBERLIN AVE

FRANKFORT, KY 40601