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April 27, 2018 201560244

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 27, 2018

 

 

CLAIM NO. 201560244

 

 

DURAFLAME, INC.                                PETITIONER

 

 

 

VS.           APPEAL FROM HON. BRENT E. DYE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DEBBIE HAMPTON

and HON. BRENT E. DYE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

AND

 

 

DEBRA HAMPTON                            CROSS-PETITIONER

 

 

VS.

 

 

WONDERFUEL DURAFLAME, EAST               CROSS-RESPONDENT

and HON. BRENT E. DYE,                         RESPONDENT

 

 

OPINION

AFFIRMING IN PART, VACATING IN PART,

& REMANDING ON APPEAL,

AND AFFIRMING ON CROSS-APPEAL

                       * * * * * *

 

 

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

STIVERS, Member. Duraflame, Inc. (“Duraflame”) appeals and Debra Hampton (“Hampton”) cross-appeals from the January 30, 2017, Opinion, Award, and Order, the November 30, 2017, Opinion on Remand, and the January 8, 2018, Order ruling on both parties’ petitions for reconsideration of, respectively, Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ Miller”) and Hon. Brent Dye, ALJ (“ALJ Dye”). In the November 30, 2017, Opinion on Remand, ALJ Miller determined Hampton’s carpal tunnel syndrome (“CTS”) became manifest on November 16, 2015, and Hampton gave due and timely notice of the work injury.

On appeal, Duraflame sets forth three arguments. First, it asserts ALJ Miller erred as a matter of law by concluding Hampton’s testimony regarding her appointment with Dr. Jenkins did not constitute medical evidence. Next, Duraflame asserts ALJ Miller erred in finding the date of manifestation was November 16, 2015. Finally, Duraflame argues the claim should be remanded to ALJ Dye for additional findings on the issues of notice, statute of limitations, and permanent total disability (“PTD”).

On cross-appeal, Hampton argues ALJ Dye erred by subjecting the award of PTD benefits to the tier-down provision in the 1994 version of KRS 342.730(4).

          The Form 101 alleges that on September 21, 2015, Hampton sustained work-related cumulative trauma injuries to her low back and bilateral CTS.

          The November 18, 2016, Benefit Review Conference (“BRC”) Order and Memorandum lists the following contested issues: benefits per KRS 342.730 [handwritten “PPO and PTD”], work-relatedness/causation [handwritten “for low back”], notice, unpaid or contested medical expenses [handwritten “for low back”], exclusion for pre-existing disability/impairment [handwritten: “for low back”], and temporary total disability (“TTD”). Under “Other” is: “S/O/L and notice for low back.”[1]

          On September 13, 2016, Duraflame filed a “Special Answer” claiming as follows:

This claim is barred in whole or in part by the limitations provision of KRS 342.185 in relation to both wrists/arms. Defendant previously asserted this defense in regarding to the low back. Defendant asserts the statute of limitations defense based upon her testimony that she had discussed her work activities with her doctor, that her doctor believed her work activities were contributing to her wrist pain, and that she has been prescribed wrist splints to wear for 14 years to assist with the pain incurred from her repetitive work tasks.

          On November 29, 2016, Hampton filed a “Motion to Amend 101” to change her injury date for both cumulative trauma claims to November 16, 2015. Hampton’s motion was sustained by order dated December 16, 2016.

          In an Opinion, Award, and Order dated February 1, 2017, ALJ Miller awarded PTD benefits in the amount of $330.99 per week “from November 16, 2015, and continuing thereafter for so long as she is so disabled or until she reaches the age to qualify for regular old age Social Security benefits, whichever shall first occur,” and medical benefits.

Duraflame appealed to this Board, putting forth three arguments. Duraflame asserted the Board should remand the claim to compel a different outcome regarding notice. Next, Duraflame argued the Board should remand the claim to compel a different result regarding statute of limitations. Finally, Duraflame contended ALJ Miller’s findings relating to permanent total disability were not supported by substantial evidence.

           In our June 20, 2017, Opinion, we remanded the claim to ALJ Miller to determine a date of manifestation for Hampton’s bilateral CTS. Further, we stated as follows:

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.       

We declined to rule on the issues of notice, statute of limitations, and PTD.

          In the November 30, 2017, Opinion on Remand, ALJ Miller provided the following findings of fact and conclusions of law regarding the date of manifestation for Hampton’s CTS:

     As directed the undersigned has reviewed the evidence in this case, again, and has considered the portion noted by the WCB: “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.” (WCB Opinion p.26)

     Below, set out in full is the relevant portions of Ms. Hampton’s testimony regarding her interaction with Dr. Jenkins, sometime in 2000 and 2001.

     The following are excerpts from the August 30, 2016, (pages 22 through 29) deposition of Ms. Hampton:

Q. Have you had any other injuries that we haven’t discussed?

A. Do I bring up my wrist and the carpel tunnel or just the back?

Q. I’ll ask you about the claims that you’re here for today.

A. Oh, okay. My back.

Q. I just want to make sure I’m not missing anything before.

A. Okay.

Q. So, we’ve discussed everything leading up to your current injury?

A. Yes.

Q. Could you tell me a little bit about the circumstances for the carpel tunnel syndrome? I know that occurs over time, but when were you first experiencing symptoms? 

A. About my third month when I started working there.

Q. At Duraflame?

A. Yes.

Q. And was that in both arms or just one?

A. Both.

Q. What kind of symptoms were you feeling initially?

A. My hands would swell. They would – my thumbs were swollen, my wrists. I couldn’t sleep at night. Numbness. I was dropping things. I couldn’t grip hardly anything or hold anything in my hands. The pain was all the way up to my neck.

Q. Extending from your wrist to your elbow, to the shoulder, to the neck?

A. Yes.

Q. At that time, did you go see anybody for treatment for your carpal tunnel symptoms?

A. Yes.

Q. Who did you send up seeing for that?

A. I can’t remember his last name, It’s Dr. Robin.

Q. And I think you had mentioned him earlier, and he’s at Lake Cumberland Medical Associates. Is that correct?

A. Yes.

Q. When you went and saw him, what did you end up reporting to him and what did he end up recommending?

A. He recommended to have the nerve conduction test done in Lexington on my wrists.

Q. And the first time you saw him, would have been back around 2000 or 2001?

A. No. It was 2015.

Q. The first time you saw him was in 2015?

A. When it got so – yeah, when it got really bad.

Q. So you had symptoms in 2002 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 saw would have seen for the carpel 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 any 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 the work was contributing to the wrist pain?

A. Absolutely, yes.

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

A. Yes.

Q. Could you tell me a little bit about the treatment that he recommended or prescribed to you at that time?

A. I just had to wear splints during the day when I was working and when I was sleeping, too, each night.

Q. Did you end up seeing him or anyone else thereafter the or were the splints the primary treatment?

A. Yes, until I saw Dr. Robin.

Q. So, you used the splints for about 14 years.

A. Off and on. Off and on, yeah.

Q. And you didn’t see anyone else during that 14 year period?

A. No.

Q. And, so, when you saw Dr. Robin in approximately 2015, maybe 2014’ish, what kind of treatment did he recommend at that time? I think you mentioned maybe the EMG, but did he recommend anything else? 

A. No, just to continue wearing the splints.

Q. Did he prescribe any medication?

A. I believe he wrote Naprosyn. I’m not sure. Ibuprofen.

Q. And at some point, you ended up receiving carpal tunnel releases and surgeries?

A. Yes.

Q. Do you recall when those would have occurred?

A. The surgeries?

Mr. Kimbler: Yes.

A. I had the right one done November 17th and the left one done January 19th.

 

Q. So, it would have been November 17, 2015?

A. Fifteen, yes.

Q. Any [sic] January 19, 2016?

A. Yes.

Q. And after those surgeries were done, did either of those provide relief?

A. No.

Q. So, you’re still feeling the same symptoms?

A. Yes.

Q. Was there anyone else that you may have seen for your wrists that we didn’t already discuss?

A. No, well, Dr. Margaret Napolitano, she’s the one that did the surgeries in Lexington.

Q. Did she recommend any medications or any work restrictions?

A. Yeah. I was restricted to – there was no light duty, you know, after my surgeries to go back on the job. There was no light duty, and my boss told me not to come back until it was all over because there is no light duty in the factory on the restrictions she had written down.

Q. Did she restrict your work activities for a limited time for you during your recovery?

A. Yes, and there wasn’t any at the factory.

 

Q. And, then she ended up releasing you from all restrictions at a certain point?

A. Yes, she did.

Q. Do you recall when you would have been missing work? It sounds like your last date was on November 17th. So, you haven’t been back since then, right?

A. No.

(emphasis ours) Deposition of D. Hampton August, 30, 2016.

Additionally, the undersigned has considered the following testimony from the Hearing November 29, 2016:

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 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 during that – that – those years before 2015?

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

Q. Prior to 2015, did it ever stop you from doing your job or slow you down?

A. I – I thought – it was affecting my job, but I wasn’t doing – doing my job as good as I believe I could have.

Q. When did you start not doing it well?

A. June, July – maybe around July of 2015, due to I was wearing the big braces, trying to work in them, and that interfered with getting in my way. I wore those all day.

Q. Is it true that before 2015, you did your job full duty?

A. All the way up to the day before surgery.

(emphasis ours) Hearing testimony, 11-29-2016, pp. 22-25)

     This testimony and the remainder of the evidence of record was considered when the undersigned rendered the initial Opinion. Important to the undersigned was the fact that there was no testimony from the defendant regarding notice.

     Ms. Hampton’s non-contradicted testimony was she initially had pain in her wrist and thumb “sometime in 2000 or 2001” shortly after she first started working for the defendant. She testified that when it worsened, she notified the defendant/employer and “they” sent her to a doctor. Presumably that doctor was Dr. Jenkins. She then transferred to the “bliss job” which she performed for 14 or 15 years. The only “treatment” for her “tendinitis” were splints. Which she wore “off and on” over 14 years.

     Significant to the undersigned, and noted by the WCB in its Opinion, was the complete lack of medical evidence from any medical provider regarding the wrists/hands, prior to her treatment with doctors in 2015. There is no medical diagnosis, there is no medical record of treatment, there is no medical record of what any doctor told Ms. Hampton “sometime in 2000 or 2001”.

     The testimony of the plaintiff was truthful in the undersigned’s opinion. Yes, she began having pain in her wrist and thumb sometime in 2000 or 2001. Yes, she notified her employer. Yes, her employer sent her to the doctor. Yes, she saw Dr. Jenkins for tendinitis sometime in 2000 or 2001. Yes, the pain in her wrists she associated with her work activities. Yes, Dr. Jenkins apparently thought the pain was associated with the work activities too. Yes, she wore splints “off and on” for 14 or 15 years and “may have” sought treatment “once or twice” in the ensuing 14 or 15 years.

     She continued working full time, full duty for the employer for over 14 years before the wrist (and back pain) became disabling to the point that she had to seek medical treatment. There is no question she timely notified her employer, indeed, the employer voluntarily paid TTD benefits (for the wrists only) from 11/17/2015 through 3/26/2016, this fact is specifically noted by the WCB in the Opinion (page 23).

     There is no record, medical or otherwise, of her receiving medical treatment for her wrists until 2015. The testimony of the plaintiff is consistent only with manifestation of disability in 2015. There is no medical evidence that she was diagnosed with carpal tunnel until 2015. Seeking medical treatment, one time for tendinitis, sometime 14 or 15 years prior to a claim for carpal tunnel, at the direction of your employer, does not equate to a manifestation of a cumulative trauma injury.

     The plaintiff’s testimony alone is not sufficient to find manifestation of disability. (See Hill v Sextet Mining, supra, and the unpublished Opinion Pediatric Dentistry v Roy, No. 2008-SC-000198-WC (March 19,2009) where the Supreme Court of Kentucky discusses the need for medical testimony of a work-related cumulative trauma.) Here, there is not even a date associated with the initial visit to Dr. Jenkins. There is not even a precise year. The medical evidence is totally non-existent regarding the diagnosis of a work-related cumulative trauma injury - until 2015. See also Rudd Equipment Company v. Fletcher, No. 2008-CA-000958-WC (Court of Appeals of Kentucky December 12, 2008) in an unpublished Opinion the court reiterated that:

     For cumulative trauma injuries, the "rule of discovery" controls, and the employee must give notice when he discovers "that an injury ha[s] been sustained." Alcan Foil Products v. Huff, 2 S.W.3d 96, 101 (Ky. 1999). In Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001), the Kentucky Supreme Court explained: Medical causation is a matter for the medical experts and, therefore, the claimant cannot be expected to have self-diagnosed the cause of the harmful change to his cervical spine as being a gradual injury versus a specific traumatic event. [The claimant] was not required to give notice that he had sustained a work-related gradual injury to his spine until he was informed of that fact. (emphasis ours)

     In Special Fund vs. Clark, 998 S.W.2d at 490 the Supreme Court of Kentucky defined "a manifestation of disability" 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. Id. at 490. (emphasis ours).

     In Hill v. Sextet Mining Corp., 65 S.W.3d 503, 508 (Ky. 2001) the Supreme Court stated the claimant must give notice only when a physician informs him of the fact he had sustained a work-related gradual injury. It is clear, when considering the totality of the plaintiff’s testimony, along with the medical evidence, that no doctor informed Ms. Hampton that she had sustained a work related injury in 2000 or 2001. Indeed, it is not until some 14 or 15 years later that the wrist symptoms (now diagnosed as carpal tunnel) began to be physically or occupationally disabling. It is not until 2015, that a doctor informed Ms. Hampton that she had sustained a work injury, carpal tunnel syndrome.

     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., supra.(emphasis ours) 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 she has sustained a gradual injury and knows it is due to her work. Alcan Foil Products v. Huff, 2 S.W.3d 96 (Ky. 1999).

     There is absolutely no medical evidence in the record of a work injury in 2000 or 2001. There is only the plaintiff relaying that she had a single office visit to a doctor, on an unknown date, wherein the doctor tells her work activities are related to her tendonitis. That does not satisfy the requirements of Alcan Foil Products v Huff, supra, or any of the legal progeny. 

     In another review of the evidence, it appears the earliest medical record that can be viewed as informing Ms. Hampton she had a work-related cumulative trauma injury of carpal tunnel syndrome was in November of 2015. Consequently, Ms. Hampton’s duty to provide notice was not triggered until she was expressly informed by a physician that her work caused her bilateral carpal tunnel. Hill v. Sextet, supra. Indeed, the testimony of the plaintiff consists of statements regarding the relationship between work activities and pain symptoms rather than whether she was informed of a work-related cumulative trauma injury. In accordance with existing authority, it appears November 16, 2015 was the date of manifestation of Ms. Hampton’s disability for which she provided due and timely notice to his [sic] employer. American Printing House for the Blind v. Brown, supra.

     The manifestation of disability is treated in the same manner in both statute of limitations and notice defenses. KRS 342.185 requires notice to be given as soon as practicable and that notice in cumulative trauma claims is governed by Special Fund v. Clark, supra. Ms. Hampton is not required to self-diagnose the cause of a harmful change and is not expected to give notice until informed by a physician of the diagnosis of the injury and that the injury is caused by the work activity. There is no evidence that Dr. Jenkins diagnosed an injury, much less that the injury was caused by the work activity.

     The WCB statement that: “Clearly, Duraflame had adequate notice based upon the fact it timely instituted the payment of benefits” (p.23 of WCB Opinion) resolves the issue of notice of the CTS.

     Pursuant to the direction of the WCB, the undersigned has considered the entire record, including the medical evidence and especially the plaintiff’s testimony, and finds the manifestation of the work injury, the cumulative carpel tunnel syndrome, became manifest on November 15, 2015. The plaintiff gave due and timely notice of the work injury.

     The remainder of the Opinion Award and Order of January 30, 2017, remains as rendered.    

          Both parties filed petitions for reconsideration. In the January 8, 2018, Order, ALJ Dye granted Hampton’s petition and overruled Duraflame’s by holding as follows:

The parties filing petition for reconsiderations, from former Administrative Law Judge (“ALJ”) Jeanie Owen-Miller’s 11/30/17 Opinion on Remand, and this ALJ being in all ways sufficiently advised;

It is hereby ORDERED: The Plaintiff’s petition for reconsideration, for the below reasons, is Granted. The Defendant’s petition for reconsideration, for the below reasons, is Overruled. The ALJ, on his own motion, is also correcting patent errors contained in former ALJ Owen-Miller’s decision. Specifically, former ALJ Owen-Miller did not tier down the award, or apply the correct interest rate.

KRS 342.281, in pertinent part, states, “[t]he [ALJ] shall be limited in the review to the correction of errors patently appearing upon the face of the award, order, or decision…[.]” The ALJ may not reweigh the evidence, when considering and deciding a petition for reconsideration. Beth-Elkhorn Corp. v. Nash, 470 S.W.2d 329 (Ky. 1971). Moreover, KRS 342.281 “precludes an ALJ…from reconsidering the case on the merits and/or changing the findings of fact.” Garrett Mining Co. v. Nye, 122 S.W.3d 513 (Ky. 2003).

It is not enough for a party to show the record contained some evidence that would support a contrary conclusion. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). If substantive evidence supports an ALJ’s findings, then the evidence does not compel a different result. Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). Inadequate, incomplete, or even inaccurate, factual-findings will not justify reversal or remand, if there is identifiable evidence, in the record, that supports the ALJ’s conclusions. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985).

The Defendant asserts, “…ALJ [Owen-Miller] has made a patent error regarding the date of manifestation of the carpal tunnel injury and the interpretation of the caselaw (sic) to the facts of this claim.” It does not request additional factual-findings. Whether former ALJ Owen-Miller misinterpreted the case law is a legal question. Former ALJ Owen-Miller cited the applicable cases, and analyzed them. The undersigned ALJ is not disturbing former ALJ Owen-Miller’s factual-findings or legal conclusions.

The Plaintiff asserts former ALJ Owen-Miller made a patent error, when she terminated income benefits pursuant to KRS 342.730(4). The undersigned ALJ agrees. The Kentucky Supreme Court, in Parker v. Webster County Coal, LLC, 2014-SC-000526-WC (Ky. 2017), found KRS 342.730(4)’s age cut-off unconstitutional. When a statute is unconstitutional, it is null, and void from its enactment date. Courts treat unconstitutional statutes as if they never existed. Legislative Research Commission v. Fischer, 366 S.W.3d 905 (Ky. 2012). KRS 446.160 states,

If any provision of the Kentucky Revised Statutes, derived from an act that amended or repealed a pre-existing statute, is held unconstitutional, the general repeal of all former statutes by the act enacting the Kentucky Revised Statutes shall not prevent the preexisting statute from being law if that appears to have been the intent of the General Assembly.

In 1996, the legislature did not repeal KRS 342.730(4)’s prior version, and only amended it. The prior version tiered down a claimant’s benefits at certain ages. The Supreme Court found this method constitutional. See Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998). When a statute’s subsequent version amends (not repeals) a prior version, and is found unconstitutional, the result is the unconstitutional statute’s pre-amendment version is the law, and controls. Moseley v. Commonwealth Dept. of Highways, 489 S.W.2d 511 (Ky. 1972); Commonwealth v. Malco-Memphis Theatres, 169 S.W.2d 596 (Ky. 1943); Ward v. Commonwealth, 15 S.W.2d 276 (Ky. 1929). Therefore, KRS 342.730(4)’s pre-amendment version controls. This prior version states,

If the injury…occurs prior to the employee’s sixty-fifth birthday, any income benefits awarded under KRS 342.750, 342.316, 342.732, or this section shall be reduced by ten percent (10%) beginning at age sixty-five (65) and by ten percent (10%) each year thereafter until and including age seventy (70). Income benefits shall not be reduced beyond the employee’s seventieth birthday.

The Kentucky Supreme Court, in Southern v. R.B. Coal Co., Inc., 923 S.W.2d 902 (Ky. App. 1996), affirmed the Workers’ Compensation Board’s decision, indicating “…that the amendment [referring to KRS 342.730(4)] requires a yearly reduction from ages 65 to 70, by 10% of the original award, thus leaving the claimant with 40% of the original award at age 70.” The Defendant shall tier-down the Plaintiff’s weekly permanent disability benefits, pursuant to the above parameters, if it ever becomes applicable.

The Defendant asserts Parker is not final, and is not the law. The undersigned ALJ disagrees. The Kentucky Supreme Court recently overruled a motion to stay the Parker decision. The decision is final. The Defendant also asserts former ALJ Owen-Miller rendered her decision before the Supreme Court issued Parker. Although true, the Kentucky Workers’ Compensation Board (“WCB”) vacated and remanded former ALJ Owen-Miller’s decision concerning the Plaintiff’s alleged bilateral carpal tunnel injury. This could have affected the permanent total disability award.

The ALJ notes the Parties did not challenge the applicable interest rate. The undersigned ALJ is amending former ALJ Owen-Millers award to include the appropriate interest rate pursuant to Stovall v. Couch, 658 S.W.2d 437 (Ky. App. 1983). The WCB just recently upheld the method the undersigned ALJ is utilizing. The WCB upheld awarding 12% interests, on all past-due benefits, through June 28, 2017, and then 6%, thereafter. Lake Cumberland Health Dept. v. Oliver, DWC No. 2012-71309 (WCB Dec. 21, 2017).

The undersigned ALJ is amending paragraph one, in former ALJ Owen-Miller’s 1/30/17 decision, on page 25, to the following:

1. The Plaintiff, Deborah Hampton, shall recover from the Defendant/employer, Wonderfuel Duraflame East, and/or its insurance carrier, the sum of $330.99 per week for permanent total disability benefits from November 16, 2015, and continuing thereafter for so long as she is so disabled, but subject to KRS 342.730(4)’s prior amendment (pre-1996) as outlined above. However, any intervening Temporary Total Disability period shall suspend the permanent disability payment period. Wonderfuel Duraflame East shall take a credit for any payment of such compensation it has already made. 12% per annum interest, on all due and unpaid amounts, is owed through 6/28/17. Then 6% per annum interest, on all due and unpaid amounts, from 6/29/17 forward.

(emphasis in original.)

          We find no merit in Duraflame’s assertion ALJ Miller erred as a matter of law by finding Hampton’s testimony regarding Dr. Jenkins, who allegedly diagnosed work-related CTS, does not constitute substantial medical evidence. Thus, we affirm on this issue.

          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). 

          In resolving the issue of the date of manifestation pursuant to the legal analysis outlined in our June 30, 2017, Opinion, ALJ Miller had the discretion to reject Hampton’s testimony as being proof of a date of manifestation of her work-related CTS. As ALJ Miller correctly pointed out in the November 30, 2017, Opinion on Remand, Hampton’s testimony “alone is not sufficient to find manifestation of disability,” particularly in light of the fact there is no documentary medical evidence in support of her appointment with Dr. Jenkins indicating the date of the visit, the year of the visit, or the details of the visit. Hampton’s testimony regarding what Dr. Jenkins allegedly told her at an appointment that took place “around 2000 or 2001” is wholly insufficient to support a date of manifestation for Hampton’s work-related CTS. We decline to extend our ruling beyond the confines of this litigation.

Similarly, we reject Duraflame’s assertion in reliance upon KRE 1007 that the “best evidence rule” is applicable and “Dr. Jenkins’ medical conclusions should be admissible through Ms. Hampton’s testimony.” In Hampton’s testimony at the November 29, 2016, hearing, there is no indication Dr. Jenkins diagnosed Hampton with CTS much less work-related CTS. In fact, as Hampton testified at the hearing, her wrist pain at that point in time was being characterized as “tendonitis,” not CTS.

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

 

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

 

As stated by ALJ Miller, “[s]eeking medical treatment, one time for tendinitis, sometime 14 or 15 years prior to a claim for carpal tunnel, at the direction of your employer, does not equate to a manifestation of a cumulative trauma injury.” Also of significance is Hampton’s hearing testimony that she was able to work full-duty “[a]ll the way up to the day before surgery” which occurred on November 17, 2015. Thus, ALJ Miller was not obligated to accept Hampton’s testimony as evidence of a 2000 or 2001 date of manifestation for her work-related CTS as she alone has the discretion to determine the evidence upon which to rely, and this discretion will not be disturbed by us.                                                                                                                                                                                                                                                                                                                 

          Duraflame’s second argument is mostly a repeat of the first. Duraflame asserts Hampton’s first notice of work-related CTS was in 2001 and not on November 16, 2015, the last day Hampton stopped working. We disagree and affirm on this issue.

          For the reasons cited herein, Hampton’s testimony regarding her appointment with Dr. Jenkins is insufficient to support a date of manifestation for work-related CTS. That said, we question ALJ Miller’s choice of November 16, 2015, as the date of manifestation, as this is merely the day Hampton stopped working at Duraflame and not the day Hampton discovered she has CTS caused by work. See Alcan Foil Products v. Huff, 2 S.W.3d 96 (Ky. 1999).

          As this Board stated in our June 30, 2017, Opinion:

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. 

 

          In the November 30, 2017, Opinion on Remand, ALJ Miller stated several times the records support a manifestation of disability for Hampton’s CTS in 2015. As stated, “It is not until 2015, that a doctor informed Ms. Hampton that she had sustained a work injury, carpal tunnel syndrome.” (emphasis added). While the record indicates Hampton was diagnosed with CTS in 2015 and underwent her first surgery for CTS on November 17, 2015, we have failed to identify medical evidence in the record indicating Hampton was specifically informed by her physician that her CTS is work-related in 2015. In fact, the only documentary medical evidence which supports a date of manifestation of work-related CTS is in the May 19, 2016, Independent Medical Evaluation of Dr. Frank Burke who opined as follows:

This patient sustained a development of a progressive bilateral carpal tunnel syndrome with both motor and sensory components as a result of her work in a cardboard manufacturing facility on or about 09/21/2015. Her description of her job activities and the motions and power required to do this is a contributor directly to the development of her syndrome bilaterally. Carpal tunnel syndrome is related to repetitive power gripping utilizing the wrist and as described and demonstrated by the patient, I believe is directly related to this development, especially since she has been active with this motion for such an extended period of time. She has had a good result following her surgery and has reached maximum medical improvement for her hands. This patient developed the radicular pain component in the late summer and early fall of 2015 and completed a work-up for chronic progressive LBP with newly evolved radicular pain. The job duties of forward bending twisting and pulling/loading over her career likely caused the progression of her degenerative disc disease with the development of her radicular pain pattern.

(emphasis added).

Out of an abundance of caution, and to remain consistent with previous opinions on this issue, we must remand the claim to ALJ Dye for a proper legal analysis regarding the date of manifestation of Hampton’s work-related CTS. Again, we note Hampton’s final day of employment, without medical evidence indicating Hampton was also informed her CTS is work-related on that day, is not the date of manifestation. On remand, the ALJ must identify, based on the medical evidence in the record, the appropriate date of manifestation of Hampton’s CTS as defined by the applicable case law. That date triggers the running of the statute of limitations as well as the obligation to provide notice of the injury. 

          In its third argument on appeal, Duraflame asserts ALJ Miller erred in finding Hampton complied with KRS 342.185 by providing due and timely notice of her work-related CTS and “misapplied” the two-year statute of limitations. It further asserts ALJ Miller failed to carry out a proper analysis regarding Hampton’s entitlement to PTD benefits.

As an initial matter, we note that until a date of manifestation is established, the issues on appeal pertaining to notice, statute of limitations, and entitlement to PTD benefits are rendered moot. In a cumulative trauma injury claim, the date for giving notice and for clocking the statute of limitations is triggered by the date of manifestation, and “the obligation to provide notice arises and the statute of limitations does not begin to run until a claimant is advised by a physician that he has a work-related condition.” Consol of Kentucky, Inc. v. Goodgame, 479 S.W.3d 78, 82 (Ky., 2015). Therefore, a resolution of the issues of notice and the statute of limitations simply cannot be performed until there is a finding of the date of manifestation as defined herein.

That said, and despite Duraflame’s arguments to the contrary, Hampton was not required to provide notice of her work-related CTS in either 2000 or 2001 based upon her appointment with Dr. Jenkins. A worker is not required to self-diagnose the cause of a harmful change as being a work-related cumulative trauma injury, and, as previously stated herein, there is no indication from Hampton’s testimony or medical documentation that she was made aware she had work-related CTS in 2000 or 2001. See American Printing House for the Blind v. Brown, 142 S.W.3d 145 (Ky. 2004). Therefore, to the extent ALJ Miller determined Hampton was not required to provide notice to Duraflame of her work-related CTS in 2001 or 2001, the January 30, 2017, Opinion, Award, and Order, the November 30, 2017, Opinion on Remand, and the January 8, 2018, Order ruling on both parties’ petitions for reconsideration are affirmed. As a date of manifestation has not yet been established, we vacate ALJ Miller’s findings regarding notice, the statute of limitations, the determination Hampton is permanently totally disabled, and the award of PTD benefits. We remand for a renewed analysis and findings on all three issues once a date of manifestation is established.

          Respectfully, the dissent misses the point. Even though we have affirmed the ALJ’s determination that the date of manifestation did not occur in 2001, the ALJ still must make a determination of the date of manifestation of the work injury as defined by the case law. The date of manifestation occurs on the date when the claimant is advised he or she has an injury and that injury is work-related. The date of manifestation triggers the running of the statute of limitations and the need to give notice of the injury. The ALJ discussed two dates of manifestation, the date Hampton was seen by Dr. Napolitano and the date she last worked for Duraflame. Neither of those dates can constitute a date of manifestation as defined by the case law since the record does not reflect that on either date Hampton was advised she sustained an injury which is work-related.

          In order to resolve the issue of notice and the statute of limitations, the date of manifestation must first be determined. Here, the ALJ’s determination is not in accordance with the law. The dissent contends the date of manifestation had to be within two years of the date Hampton filed her claim, and since the claim was filed sometime within the unidentified statute of limitations period the ALJ committed harmless error. We choose not to set such a precedent.

          The ALJ’s finding there was no record, medical or otherwise, of Hampton receiving medical treatment for her wrist until 2015 does not resolve the issue of the date of manifestation. Further, the dissent does not address the issue of notice, as the date of manifestation is pivotal for purposes of determining whether notice was due and timely provided. The ALJ was to resolve all issues on remand which included the statute of limitations and notice, yet neither of these issues can be disposed of before the ALJ correctly determines a date of manifestation. It is not the function of this Board to infer a date of manifestation. Permitting an ALJ to find the claim was timely filed and notice timely given without first determining the correct date of manifestation is not in accordance with the well-defined law.     

Regarding the adequacy of ALJ Miller’s analysis of Hampton’s entitlement to PTD benefits, this Board will not address that issue herein when a date of manifestation, notice, and compliance with the statute of limitations has not yet been established in accordance with the law.

           In her cross-appeal, Hampton asserts ALJ Dye erred by applying the tier-down version of KRS 342.730(4), as “[t]he Cruse case, when read in conjunction with Parker, makes it clear that limiting income benefits based on a worker’s age is discriminatory and a violation of equal protection.” We disagree and affirm, pending a determination on remand regarding a date of manifestation, notice, statute of limitations, and Hampton’s entitlement to PTD benefits.

In Pickett v. Ford Motor Co., Claim No. 2015-01910, rendered February 16, 2018, we set forth our rationale as to why income benefits, in light of the Supreme Court of Kentucky’s decision in Parker, are to be calculated pursuant to the tier-down formula, when applicable, as set forth in the 1994 version of KRS 342.730(4):

The version of KRS 342.730(4) the Parker Court deemed unconstitutional, enacted in 1996, states in pertinent part:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee's injury or last exposure, whichever last occurs.

 

     In Parker, supra, the Kentucky Supreme Court concluded the manner in which income benefits were limited in the 1996 version of KRS 342.730(4) is unconstitutional. In so ruling, the Supreme Court stated, in part, as follows:

[T]he equal protection problem with KRS 342.730(4) is that it treats injured older workers who qualify for normal old-age Social Security retirement benefits differently than it treats injured older workers who do not qualify. As Justice Graves noted in his dissent in McDowell, “Kentucky teachers ... have a retirement program and do not participate in social security.” 84 S.W.3d at 79. Thus, a teacher who has not had any outside employment and who suffers a work-related injury will not be subject to the limitation in KRS 342.730(4) because that teacher will never qualify for Social Security retirement benefits. There is no rational basis for treating all other workers in the Commonwealth differently than teachers. Both sets of workers will qualify for retirement benefits and both have contributed, in part, to their “retirement plans.” However, while teachers will receive all of the workers' compensation income benefits to which they are entitled, nearly every other worker in the Commonwealth will not. This disparate treatment does not accomplish the goals posited as the rational bases for KRS 342.730(4). The statute does prevent duplication of benefits, but only for non-teachers because, while nearly every other worker is foreclosed from receiving “duplicate benefits,” teachers are not.

Id. at 768 (emphasis added).

     The Supreme Court determined the 1996 version of KRS 342.730(4) does not pass constitutional muster because it treats injured older workers in the Commonwealth who do not qualify for old-age Social Security benefits, such as teachers, differently from all other injured older workers in the Commonwealth who qualify for old-age Social Security benefits. That said, the Supreme Court’s pronouncement in Parker lacks guidance as to how income benefits should now be calculated for injured older workers. In other words, should income benefit calculations for injured older workers be devoid of any age-related restrictions or should income benefit calculations revert back to the previous version of KRS 342.730(4) immediately preceding the 1996 version? Having had another opportunity to offer guidance in Cruse v. Henderson, Not To Be Published, 2015-SC-00506-WC (December 14, 2017), the Supreme Court declined. Thus, this Board must turn to other sources in order to address this inquiry.

     The previous version of KRS 342.730(4) reads as follows:

If the injury or last exposure occurs prior to the employee’s sixty-fifth birthday, any income benefits awarded under KRS 342.750, 342.316, 342.732, or this section shall be reduced by ten percent (10%) beginning at age sixty-five (65) and by ten percent (10%) each year thereafter until and including age seventy (70). Income benefits shall not be reduced beyond the employee’s seventieth birthday.

     The above-cited language does not induce the same constitutional quandary identified by the Parker Court, as the tier-down directed in the previous version of KRS 342.730(4) does not differentiate between injured older workers eligible for old-age Social Security benefits and those who are not. All workers injured before the age of sixty-five are subject to the tier-down provisions regardless of their eligibility for Social Security benefits. The previous version of KRS 342.730(4) does, however, differentiate between injured younger workers and injured older workers, because those injured above the age of sixty-five are not subjected to the tier-down. The Parker Court has already addressed the rational basis of providing for such a distinction:

The rational bases for treating younger and older workers differently is: (1) it prevents duplication of benefits; and (2) it results in savings for the workers' compensation system. Undoubtedly, both of these are rational bases for treating those who, based on their age, have qualified for normal Social Security retirement benefits differently from those who, based on their age, have yet to do so.

Id. at 768.

     However, there must be a determination of whether the Supreme Court’s pronouncement in Parker revives the previous iteration of KRS 342.730(4).  

KRS 446.160 states as follows:

If any provision of the Kentucky Revised Statutes, derived from an act that amended or repealed a pre-existing statute, is held unconstitutional, the general repeal of all former statutes by the act enacting the Kentucky Revised Statutes shall not prevent the pre-existing statute from being law if that appears to have been the intent of the General Assembly.

(emphasis added).

     In making an educated assessment of the legislative intent at the time the current version of KRS 342.730(4) was enacted in 1996, we turn to a contemporaneous provision, contained in the 1996 legislation, in which the legislature addressed the dire need to preserve the long-term solvency of the Special Fund, now the Division of Workers’ Compensation Funds, which reads as follows:

Section 90. The General Assembly finds and declares that workers who incur injuries covered by KRS Chapter 342 are not assured that prescribed benefits will be promptly delivered, mechanisms designed to establish the long-term solvency of the special fund have failed to reduce its unfunded competitive disadvantage due to the cost of securing worker’s vitality of the Commonwealth’s economy and the jobs and well-being of its workforce. Whereas it is in the interest of all citizens that the provisions of this Act shall be implemented as soon as possible, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.     

     The language of Section 90 indicates the legislature, at the time the 1996 version of KRS 342.730(4) was enacted, intended to preserve the solvency of the Special Fund. Indeed, the language used in Section 90 speaks to this intent as being “an emergency.” This legislative intent cannot be ignored in the wake of the Supreme Court’s determination the 1996 version of KRS 342.730(4) is unconstitutional. This expressed concern certainly bolsters the conclusion the legislature contemplated a revival of the tier-down provisions in the previous version of KRS 342.730(4).

     Accordingly, we hold that income benefits are to be calculated pursuant to the tier-down formula as set forth in the pre-existing version of KRS 342.730(4) in place when the statute in question was enacted in 1996. As the record indicates Pickett was sixty at the time of the July 13, 2015, injury to his left shoulder, and the ALJ awarded PPD benefits commencing on July 13, 2015, we vacate the ALJ’s award of PPD benefits which are “subject to the limitations set forth in KRS 342.730(4)” and remand for a revised calculation of PPD benefits and an amended award consistent with the views set forth herein.

Hampton’s reliance upon Cruse is misguided. Cruse was seventy-one years old at the time of her injury, thus, the tier-down provision in the 1994 version of KRS 342.730(4) was not implicated. Also, noticeably absent in Cruse is any language from the Supreme Court indicating since KRS 342.730(4) is unconstitutional, the claimant is entitled to an unaltered award of income benefits. The Supreme Court’s refusal to make such a statement led to our decision in Pickett, and we will consistently adhere to our decision until informed otherwise.

Therefore, on remand, should ALJ Dye determine, after engaging in the appropriate analysis regarding date of manifestation, notice, and the statute of limitations, that Hampton is entitled to PTD benefits, the tier-down provision as seen in the 1994 version of KRS 342.730(4) shall be applied.

Accordingly, to the extent ALJ Miller determined Hampton’s testimony regarding an appointment with Dr. Jenkins in 2000 or 2001 does not constitute substantial evidence in support of a date of manifestation of her work-related CTS and did not trigger Hampton’s obligation to provide notice of said condition and the running of the statute of limitations, the January 30, 2017, Opinion, Award, and Order, the November 30, 2017, Opinion on Remand, and the January 8, 2018, Order ruling on both parties’ petitions for reconsideration are AFFIRMED. The findings regarding the issues of notice, statute of limitations, and that Hampton is totally occupationally disabled, and award of PTD benefits are VACATED. This claim is REMANDED for additional analysis and findings consistent with the views set forth herein. While the award of PTD benefits is vacated, to the extent ALJ Dye held the tier-down provision would be applicable to an award of PTD benefits, the January 8, 2018, Order is AFFIRMED.

          ALVEY, CHAIRMAN, CONCURS.

          RECHTER, MEMBER, CONCURS IN PART, DISSENTS IN PART, AND FILES A SEPARATE OPINION.

RECHTER, MEMBER.   I agree with the majority’s analysis concerning the ALJ’s determination Hampton was not informed she suffered work-related carpal tunnel syndrome in 2001.  I disagree the claim needs to be remanded for further analysis regarding the date of manifestation for notice purposes.

          Throughout these proceedings, Duraflame has claimed Hampton was treated for a wrist condition in 2001 and was informed the condition was work-related by Dr. Jenkins.  It has repeatedly argued that 2001 is the proper date of manifestation of the wrist injuries for purposes of notice and statute of limitations.  That argument has been rejected by the ALJ twice, and has now been rejected by the majority of this Board.  At no time has Duraflame ever presented any other argument concerning notice and statute of limitations for the wrist injuries. 

          Having affirmed the ALJ’s determination that Hampton was not informed in 2001 that she suffered work-related carpel tunnel syndrome, there is no remaining issue concerning notice and statute of limitations.  I must emphasize that Duraflame has never argued or presented evidence to support a date of manifestation other than 2001.  Even if the ALJ’s use of November 16, 2015, Hampton’s last date of work, as a manifestation date is in error, such error is harmless.  Furthermore, we need not engage in any unauthorized fact-finding to reach this conclusion because the ALJ has entered the requisite findings of fact upon which to base this legal conclusion.  

          The ALJ found “there is no record, medical or otherwise, of her receiving medical treatment for her wrists until 2015.”  This factual finding is supported by substantial evidence; in fact, there is absolutely no proof in the record to dispute it.  It necessarily follows, then, that the earliest possible date of manifestation was in 2015.  Hampton filed her Form 101 on June 20, 2016.  Therefore, the claim was timely filed.  Any error in the exact date of manifestation is harmless.  Because it would have no effect whatsoever on the outcome of this claim or the payment of benefits, I see no reason to remand this claim to the ALJ for further consideration.      

COUNSEL FOR PETITIONER:

HON STEVEN KIMBLER

3292 EAGLE VIEW LN STE 350

LEXINGTON KY 40509

COUNSEL FOR RESPONDENT:

HON JACKSON W WATTS

131 MORGAN ST

VERSAILLES KY 40383

ADMINISTRATIVE LAW JUDGE:

HON BRENT E DYE

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] As we noted in the June 30, 2017, Opinion, ALJ Miller granted Duraflame’s motion to add notice and statute of limitations for Hampton’s bilateral CTS as contested issues at the November 29, 2016, hearing.