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.