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September 29, 2017 201084731

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: September 29, 2017

 

 

CLAIM NO. 201084731

 

 

DINA N. WOOD                                   PETITIONER

 

 

 

VS.        APPEAL FROM HON. ROBERT L. SWISHER,

          FORMER CHIEF ADMINISTRATIVE LAW JUDGE

 

 

 

METALSA

DANA CORPORATION

HON. ROBERT L. SWISHER,

FORMER CHIEF ADMINISTRATIVE LAW JUDGE

and HON. DOUGLAS W. GOTT,

CHIEF ADMINISTRATIVE LAW JUDGE                RESPONDENTS

 

 

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

                       * * * * * *

 

 

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

 

STIVERS, Member. Dina N. Wood (“Wood”) appeals from the March 30, 2017, Opinion and Order of Hon. Robert L. Swisher, former Chief Administrative Law Judge (“CALJ Swisher”), and the April 26, 2017, Order overruling Wood’s petition for reconsideration of Hon. Douglas W. Gott, current Chief Administrative Law Judge (“CALJ Gott”). In the March 30, 2017, Opinion and Order, CALJ Swisher dismissed Wood’s claim for benefits for injuries allegedly occurring on December 9, 2008, and October 22, 2012.

On appeal, Wood asserts the ALJ erred in finding the December 9, 2008, cumulative trauma injury is barred by the statute of limitations. Wood also asserts the ALJ erred by not making findings as to whether the payment of temporary total disability (“TTD”) benefits and medical benefits from October 22, 2012, through July 9, 2013, tolled the statute of limitations. Finally, Wood argues the ALJ erred in finding Wood did not satisfy her burden of proving she sustained an “injury” as defined by the Workers’ Compensation Act on October 22, 2012.

In the Form 101 filed on September 3, 2014, the “Defendant/Employer” is listed as “Dana Corp.,” and Wood alleged she sustained injuries within the scope and course of her employment on December 9, 2008, and October 22, 2012. “SEE ATTACHED” is written by “Describe how the injury occurred,” and there is nothing written by “Body part injured.” Attached to the Form 101 is an affidavit of Wood with the following description of her alleged injuries:

 

I began to have symptoms which I now believe to be as a result of bilateral carpal tunnel syndrome in 2003. I saw Dr. Thomas Harter, who did some injections. Over the years, I had sporadic treatment until 2008 because I had gone to an easier job. Then, after a lay off, I returned back to fairly repetitive work in 2008 and my problems flared back up and I began to treat regularly with Dr. Harter. I have used as my first date of loss, 12/9/08 because that is the date that the insurance carrier has used. However, in October of 2012, I was referred to Dr. Joseph Kutz and on October 22, 2012, he performed a left decompression of the pronator teres, the carpal tunnel, the cubital tunnel and a radical synovectomy of the flexors at the left wrist. In addition, during that same time period in 2008/2009, I was evaluated by Dr. Thad Jackson for neck pain/cervical radiculopathy and bilateral shoulder symptoms and treatment included epidural steroid injections. I have also used as a date of injury, October 22, 2012, the date of my surgery described above.

Regarding notice, the Form 101 alleges Wood gave notice “AS SOON AS PRACTICALBE.”

On September 25, 2014, Dana Corp. filed a Special Answer asserting Wood’s claim is barred in whole or in part by the Statute of Limitations and/or Statute of Repose.

On October 17, 2014, Wood filed an “Additional Application” naming “Metalsa, previously known as Dana Corp.” as the Defendant/Employer. The same affidavit of Wood attached to her original Form 101 is attached to the “Additional Application.”

On December 1, 2014, Dana Corp. filed a “Special Answer to Additional Application” asserting, again, Wood’s claim is barred in whole or in part by the Statute of Limitations or Repose and the fact Wood was not employed by Dana Corp. on October 22, 2012.

Wood introduced the January 6, 2015, Independent Medical Examination (“IME”) report of Dr. Warren Bilkey. Based upon an examination and medical records review, Dr. Bilkey set forth the following impression:

1.      12/9/08, 10/22/12 work injury (symptoms worsened leading to surgery 10/22/12 that being the second date for aggravation of the original work injury).

 

2.      Cervical strain, myofascial pain involving scapular muscles.

 

3.      Bilateral carpal tunnel syndrome, pronator syndrome, cubital tunnel syndrome. Ms. Wood has undergone surgical decompression on the left with good outcome. She has undergone multiple injections into the right carpal tunnel and surgery has been advised but not carried out.

Regarding causation, Dr. Bilkey opined as follows:

In my opinion, the above diagnoses are due to the work injuries whose dates are specified. The evaluation and treatment procedures that have been carried out appear to have been reasonable, medically necessary and work injury related. It does not appear that Ms. Wood had an active impairment affecting her injury sites prior to 12/9/08.

Dr. Bilkey opined, at the time of his report, Wood was at maximum medical improvement (“MMI”) with respect to her alleged cervical spine and left upper extremity injuries. However, she is not at MMI with respect to the right upper extremity injury. He assessed a 22% whole person impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) “solely attributable to the 12/9/08, 10/22/12 work injuries.”

Metalsa introduced the November 17, 2015, IME report of Dr. Thomas Gabriel. After performing a physical examination and medical records review, he set forth the following diagnoses:

1.      Normal examination left upper extremity, status post left carpal tunnel, pronator teres, and cubital tunnel releases.

 

2.      Mild right carpal tunnel syndrome and right cubital tunnel syndrome.

 

Dr. Gabriel opined, in part, as follows:

Ms. Wood is in the office today for an Independent Medical Evaluation. Ms. Wood has had a long history of chronic bilateral upper extremity complaints. Ms. Wood has undergone previous left cubital tunnel, pronator teres, and carpal tunnel releases in 2012, with what appears to be full and 100% recovery. She has persistent right upper extremity complaints consistent with changes noted on repeated electrodiagnostic testing since initial studies on 6/21/15 including nerve studies that were performed in our office today. Findings on the right include a persistent mild right carpal tunnel and borderline right cubital tunnel syndrome. Despite multiple carpal tunnel injections over the years, there has been no change in the electrodiagnostic studies, and no effective long term clinical symptom change. Due to the longstanding nature of this work injury claim, it is best that I address specifically the questions raised regarding today’s IME. Questions #1 - #5 have been addressed. Question #6 – my opinion is that the claimant’s work at Dana Corporation between 1996 and March 8, 2010, was indeed the proximate cause of her left upper extremity symptoms requiring a left carpal tunnel release, pronator teres release, and cubital tunnel release in 2012, and indeed has been the proximate cause of her persistent and ongoing right upper extremity complaints as documented.  Question #7 – there has been no additional harmful change in her upper extremities or neck evidenced by objective medical findings between March 8, 2010, when Metalsa took over the plant and October 17, 2012. Question #8 – there has been no additional harmful change in her upper extremities or neck evidenced by objective medical findings between October 17, 2012 and May 8, 2013. Question #9 – there has been no harmful change in her upper extremities or neck evidenced by objective medical findings since May 8, 2013. (emphasis added).

Regarding MMI and an impairment rating, Dr. Gabriel opined as follows:

Question #10 – Ms. Wood has reached maximum medical improvement with regard to her left upper extremity complaints following peripheral nerve decompression surgery in 2012, and I do not determine any permanent partial impairment according to the AMA Guides, and I do not determine any need for permanent restrictions. Regarding the right upper extremity, it is my opinion that Ms. Wood has yet to reach maximum medical improvement. Question #11 has been answered, and at this time, Ms. Wood has 0% impairment for her left upper extremity as it relates to the condition that developed at Dana Corporation with regard to a peripheral nerve compressive neuropathy beginning on or about 2003. Question #12 – there has been no recent change in the patient’s right upper extremity symptoms. There appears to be no active impairment prior to symptom onset in 2003, and there really has been very little change in the right upper extremity symptoms over the last 12 years. Electrodiagnostic studies in the right upper extremity have remained mild throughout the last 10 years. Ms. Wood has no permanent restrictions for the left upper extremity and can return back to her previous level of employment. Although the nerve compression remains mild on the right, Ms. Wood should not consider any additional cortisone injections and is a candidate for a right carpal tunnel/right cubital tunnel decompression. I see no evidence that a right pronator teres release is medically necessary. After surgery, I would once again anticipate a 0% impairment rating and no permanent restrictions for the right, similar to what I have reported for the left upper extremity.

Dr. Gabriel reiterated the above-cited opinions in his April 19, 2016, deposition, testifying as follows:

A: Yeah, the question asked was – sorry – your opinion whether within a reasonable degree of medical probability the claimant’s work at Dana Corporation between 1996 and March 8, 2010, was the proximate cause of her complaints, and the answer I believe was yes.

 

Q: Okay. So you concluded then as far as the cause of her complaints that it would be attributable to the work at Dana Corporation?

 

A: Correct. As I said, from 2003 through – I’m sorry, from 2003 when she first started her complaints she was pretty much back and forth, right versus left, left versus right, having undergone, as I documented there, multiple upon multiple cortisone injections, finally undergoing surgery for the left in 2012, again, all I believe as a result of her employment at – or the start of her employment at Dana, maybe continued through Metalsa, but certainly her employment through Dana was when her symptoms first started and were present for at least eight years prior to definitive treatment.

 

 

A: Question No. 7 was whether the claimant sustained any additional harmful change in her upper extremities or neck evidenced by objective medical findings between March 8, 2010, when Metalsa took over the plant, and October 17th, 2012. And, again, understand I have – at no time during that process had I seen her. I can only go by the medical records.

 

Q: And what she told you?

 

A: And what she told me. I don’t see, at least from objective evidence, worsening nerve tests, I guess is probably your best proof of a harmful objective change. There really has not been any change from the very initial nerve studies that were performed in – let’s see, when were those performed, the – 6/21/05 was when the first nerve studies were performed, and then subsequently she had several others and they have pretty much all said about the same thing.

 

So the findings on nerve studies, which, again, would be my only evidence of objective [sic] since I didn’t examine her along the way, of really no significant change, either improvement with the cortisone injections or change with her changing work activities or changing employer.

Wood’s January 21, 2015, deposition was introduced. She began working for Dana Corp., at that time “Dana,” in February 1996. Her first position, held until 2005, was on the assembly line as a welder. After that, she worked in the storeroom until 2008 and then in the press department until 2014. Wood testified as follows regarding her duties in the press department:

A: Essentially, the press takes a coil of steel that looks like a humungous toilet paper roll, but it’s steel that weighs about 30,000 pounds. And it rolls it all into a press at each station, stamps that part out, whether you have holes or clips or anything that needs to be done.

 

Well, when it gets to the end, it throws it off on to a conveyer belt that’s rolling, and you have to grab that part and put it into a basket and grab the next part before it falls on to the floor.

 

Q: So you would be putting, obviously, these 30,000 pound coils on?

 

A: No, no, no. That’s done with a hoist. I just have to take the part that it makes and put it into the basket.

In 2014, Wood transferred to assembly, “because the lifting and the arm were absolutely killing [her],” and then eventually returned to the storeroom. At the time of the deposition, Wood was still in the storeroom.

Wood testified she had reported work-related symptoms before the first alleged injury date of December 9, 2008.

Q: Now, the injury date we’re here on that you reported to Dana was listed as December 9, 2008, and it was written down, and I’m not saying these necessarily were your words, but strain right arm, left wrist, repetitive motion. Employee was doing repetitive motion causing a strain to an unknown body part.

Had you reported any work-related conditions before 2008?

 

A: 2008.

 

Q: Tell me about what you reported then.

 

A: I just went to the safety guy and the P.A. at work and told them that I was – my arms were going – my arm was going numb.

 

Q: Which arm?

 

A: It was my right.

A: I started noticing tingling in my fingers on my right hand. My right hand would go numb in the middle of the night and wake me up. There would be at different times waking up, my fingers would be locked, and I would have to soak in hot and cold water to make –

 

Q: Is that like they were asleep? I’m sorry I interrupted you. Was it kind of like they were asleep or something like that?

 

A: They call it like – they call it like part of the trigger finger. If you – when you’re welding, you have to squeeze the trigger to keep the wire to keep coming out.

 

That’s the only way, because if you stop squeezing it, it stops coming out. So to do that, your hand like locks, and you have your ligaments, so you can’t just pry them open, because you’ll snap your ligaments.

 

So you have to massage and do heat and cold therapy in the morning to get them to open up, so that you can brush your hair, brush your teeth, get ready for work.

 

So pretty much the way they explained it to me was, the carpal tunnel, your muscles contract and squeeze your nerve endings, and it makes you go numb, the same as your ligaments will get locked in that position.

 

So when you’re sleeping, and you don’t realize it, you’re squeezing, and that’s how your – almost like the ligaments get stuck that way, so you have to warm them up to get them not to do that, which causes them to go numb.

Wood also experienced symptoms in her neck at this point, although she did not begin receiving treating for her symptoms until 2008. Wood reported her symptoms to the “safety person.” When Wood stopped performing repetitive work, her symptoms “became tolerable.”

She testified regarding the alleged December 9, 2008, injury:

Q: Then that gets us back up to the point, I guess, to 2008. And do you remember at what point in time in 2008, and you might have said this, and it might have flown by me, when you were moved? You had to move back to, I guess, out on the floor. Do you remember what month that was?

 

A: July.

 

Q: That’s when you became a press operator?

 

A: Yes. Sorry.

 

Q: How long after that did you notice an increase in symptoms?

 

A: I don’t remember. Like within a month or two. It should state in the medical records when I went back to get my first injections again.

 

Q: Would it have been pretty close in time – what we have listed is an injury date of December 9, 2008. That was probably about the time that you reported that you were having worse problems, somewhere in that general time?

A: I believe I had several injections before that. That’s the date that - that date wasn’t given until a year after. And at some point, they needed a date. And I think that’s when our safety guy, which at the time was Tim Brown, said, this is the first thing he had jotted down that I came to see him. So they needed a date, and he backed it a year back and said that was the date, because that’s when I had called the doctor.

 

Q: It sounds like really you were having, I guess, increased symptoms there even before December 9, 2008; is that correct?

 

A: Yes.

Wood testified concerning the events leading up to the October 22, 2012, surgery:

A: The symptoms were still just as bad, and it was in both my left and my right with my neck, the whole arm, everything. So at one point – at some point, they told me that they were giving me a caseworker. And I have never had a caseworker before, so I didn’t really understand why they were doing that.

 

Q: It’s like a nurse case manager?

 

A: Yeah. So she started coming to all of my appointments with me.

 

 

A: She at that point – at that point, they sent me to Doctor Jackson, which is a neurologist.

 

Q: Is that for your neck?

 

A: For my neck. Between Harter and Doctor Jackson and Kutz, they both had went [sic] back and forth. One was trying to say it was caused from the neck, one was trying [sic] saying, no, it was caused from your hands.

 

They found I think it was C3, C4, C5, and C6 in my neck, so that’s when they went in to do the nerve blocks every six months.

 

 

A: Those were done in E-town by Doctor Kuo until Doctor Kuo moved last year, and then I started seeing Doctor Reynolds for that.

 

Q: And those are done at the hospital?

 

A: The Surgical Center in Elizabethtown. So prior to the injections, Doctor Harter didn’t want to do surgery until he felt like it was absolutely necessary, but I went to having to have my injections every six months to the latter part, it was every three or four weeks.

Q: So you were getting worse and worse?

 

A: Yes.

 

Q: And even in the period of time, say, in 2012, your symptoms were increasing further?

 

A: Yes. And that is when Doctor Harter referred me to actually see Doctor Kutz, because I believe that Doctor Harter was moving on to a different position or was retiring, and Kutz immediately said, you need surgery.

 

You can’t keep getting these injections. We’re going to do your left, because your dominant hand is your right. Because you’ve been dealing with it for so many years, we want to see how your body reacts to the surgery and how you’re able to recover from it before we do your dominant hand.

 

Q: And during that period of time, it was getting worse and worse in 2012, you were continuing to do this job as a press operator?

 

A: Until my surgery, yes.

 

Q: Then October 22, 2012, Doctor Kutz performed the surgeries?

 

A: Uh-huh. On my left, yes.

 

Q: They were on the left?

 

A: Uh-huh.

 

Q: What he did on the left, Doctor Kutz, was carpal tunnel release, cubital tunnel release. He also said he did a synovectomy and a perimeter tear release. Does that sound like what you think he did to you?

 

A: Yes.

 

Q: Did that help your symptoms on the left any?

 

A: Yes.

          Concerning the pain she currently experiences in her right extremity, Wood testified:

Q: I’m coming down the homestretch here. This surgery was done on the left, and I’ve been more, I guess, referring to the symptoms on the left side. Was the same process also happening on the right side?

 

A: Yes, I have those symptoms still.

 

Q: At this point, is your right – how do they compare? Is your left now better than the right?

 

A: Yes, now it is.

 

Q: Before you had surgery, what was the case? Were your symptoms stronger on the left or the right?

 

A: They’ve always been worse on my right.

Regarding the second alleged injury of October 22, 2012, Woods testified:

Q: That was the date you finally had surgery by Doctor Kutz; is that right?

 

A: On my left side, yes.

 

Q: On your left side. That’s the only surgery that you’ve had on either one of your upper extremities or your wrists?

 

A: Yes. He wanted to do the left first to see how it would react.

 

Q: Between 2008 and 2012, did you have any other injuries?

 

A: Uh-uh. I mean, just what I’ve treated for, both arms and the neck.

 

Q: Any new different ones?

 

A: No.

 

Q: And there’s no specific event that would have happened to your neck or either one of your wrists? I mean, we’re talking not one specific thing like I lifted one particular thing?

 

A: No, it was just the repetitive.

Wood’s second deposition of March 30, 2016, was introduced. At that time, Wood was working at a support tech in the storeroom for Metalsa.

Wood reiterated that between 2003 and 2006, she was receiving treatment from Dr. Harter for bilateral carpal tunnel syndrome. She testified the workers’ compensation carrier paid for the treatment she received during that time period.

Regarding the alleged injury date of December 9, 2008, Wood testified as follows:

A: That was the date – it was never given a specific date. When they needed a date that’s the date that Tim Brown did because I think that was the first doctor’s appointment he had made for me going back. Because at the point that it was so severe that I couldn’t stand it anymore I called the doctor myself and made an appointment and then I went and seen [sic] Tim, I said I’ve made an appointment, I need to get in to see the doctor.

 

Q: Okay. And that was December 9th of 2008, that’s when he made the appointment for you?

 

A: I believe that’s why he made that the date. We didn’t have a date so that’s the date he gave.

 

Wood testified that she worked continuously as a press operator until the surgery of October 22, 2012. Wood also testified at the November 3, 2016, hearing.[1]

The September 20, 2016, Benefit Review Conference (“BRC”) Order and Memorandum reflects the following stipulations:

1.      Jurisdiction under the Act. Yes.

 

2.      An employment relationship existed between the plaintiff and defendant-employer at all times herein relevant. YES as to 2008 doi with Dana and became an employee of Metalsa 3/8/10.

 

4.      [sic] The defendant-employer had due and timely notice of plaintiff’s injury(ies). At issue as to Metalsa; stipulated as to Dana.

 

5.       TTD benefits were paid at the rate of $670.02 per week from 10/22/12 to 7/9/13 for a total of $24,982.17. (by Dana Corp).

6.      The defendant-employer has paid on behalf of the plaintiff, medical expenses in the amount of $56,995.13 (by Dana Corp.)

The BRC Order lists the following contested issues: benefits per KRS 342.730; work-relatedness/causation; notice; unpaid or contested medical expenses; injury as defined by the ACT; exclusion for pre-existing disability/impairment. Under “Other” is the following:

Statute of limitations; responsible for employer/apportionment; multipliers; is impairment rating calculated consistent with AMA Guides; credit for overpayment of voluntary income benefits; reimbursement of benefits by Metalsa; liability for medical treatment; date of manifestation.

 

In her brief to CALJ Swisher regarding the nature of her alleged injuries, Wood asserted:

Claimant has suffered two separate repetitive cumulative traumas. The first one involves neck pain/cervical radiculopathy and the second bilateral wrist, arm and hand problems and specifically pronator teres, carpal tunnel and cubital tunnel. While certainly it seems clear that her difficulties arose while she was in the employ of Dana Corp, they have continued or were aggravated, exacerbated and worsened with the ongoing work with Metalsa which became her employer in March of 2010. The Claimant is requesting a finding of a 5% impairment as it relates to her cervical condition and an 18% impairment for her arm problems. In addition, Claimant should be entitled to reasonable medical treatment pursuant to the Act.

In the March 30, 2017, Opinion and Order concerning the alleged first injury, CALJ Swisher set forth the following findings of fact and conclusions of law:

1. The ALJ finds the facts as stipulated by the parties.

2. Work-relatedness/causation; injury as defined by the Act.

INJURY OF DECEMBER 9, 2008

...

Plaintiff alleges that on December 9, 2008, she sustained bilateral upper extremity (carpal tunnel syndrome), cervical spine and bilateral shoulder injuries. She indicates that she used the date of December 9, 2008, because that was the date the insurance carrier used. In addition, plaintiff testified on multiple occasions that that date was simply a date selected by the safety director at the plant, Tim Brown. She agreed that she had had symptoms as early as 2003 for both her right hand and wrist and her neck when she was working as a welder. She testified that she was treated by Dr. Harter with injections and that workers’ compensation picked up and paid for those expenses as early as 2006. For cumulative trauma injuries, the date of injury and, therefore, the date of beginning of the clock in the statute of limitations and notice requirements begins when the disabling reality injury becomes manifest, not necessarily the last date of employment. Randall Co. v. Pendland, 770 S.W.2d 687 (Ky. App. 1988). More recently, the Supreme Court in Consol of Kentucky, Inc. v. Goodgame, 479 S.W.3d 78 (Ky. 2015) held that for cumulative trauma injuries, the date of injury is the date a claimant is advised by a physician that he has a work-related condition. The obligation to provide notice and the statute of limitations begins to run on that same date.

Although the parties have submitted a significant volume of evidence in this matter, there is almost no evidence with respect to when plaintiff was first advised by a physician that she had sustained an injury as a result of cumulative trauma from her work with respect to her cervical spine and upper extremities. The undersigned infers, however, that plaintiff was advised and was aware that her symptoms were the result of work-related cumulative trauma no later than 2006 when she was treated by Drs. Harter and Jackson for her cervical and right upper extremity symptoms. Further, the evidence is undisputed that plaintiff’s symptoms continued to wax and wane over the course of time depending on the particular job assignment she had at any given time. This is confirmed by the fact that plaintiff’s symptoms increased dramatically in 2008 when she left the storeroom assignment as a result of a layoff and was put back into the press department. That reassignment caused a significant exacerbation of plaintiff’s symptoms, particularly her bilateral carpal tunnel symptoms leading to left upper extremity surgery on October 22, 2012. According to plaintiff, never since 2008 have her symptoms completely resolved.

Plaintiff was seen at Workwell on December 19, 2008, by Dr. King, where she had been sent by the in-house physician’s assistant. On that occasion Dr. King noted plaintiff was being seen “f/u repetitive motion. She was complaining of numbness and tingling in the right arm and left hand and was diagnosed with right shoulder/trapezius strain and right wrist pain – repetitive motion injury.” In the patient information/health history form completed by plaintiff on that date, she indicated that she had been seen by Workwell in the last three years “for same – reoccurring.” She answered in the affirmative to the question “is this a work-related injury?” and further explained “repetitive motion picking up and moving of parts using hands and arms.” Plaintiff was prescribed Flexeril, sent for physical therapy, and signed a note under the medical record including a statement indicating “I understand that it is my responsibility to take a copy of this form to my employer.”

Considering all of the evidence in the record, including the above-referenced treatment note, the undersigned finds that plaintiff’s cervical spine and bilateral upper extremity injuries (carpal tunnel syndrome) became manifest no later than the date plaintiff alleges, December 9, 2008. In fact, the undersigned notes that plaintiff has known since at least 2006 that her symptoms are work-related. There is no evidence that plaintiff missed any work subsequent to December 9, 2008 up until the time of her surgery in 2012, nor is there any evidence plaintiff was paid temporary total disability benefits prior to the date of her surgery. Accordingly, plaintiff’s claims against Dana Corporation with respect to an alleged repetitive trauma injury occurring December 9, 2008, expired as of December 9, 2010, and her claim is barred by the statute of limitations. KRS 342.185(1).

Although plaintiff had a conversation with Dana’s adjuster, Cheryl Davis, at some point after December 15, 2010 (the date of the first letter containing a settlement offer), plaintiff has not established the exact date of that conversation, and there is no evidence on which the undersigned can reasonably find that the conversation occurred prior to December 19, 2010 (i.e., two years after the December 19, 2008 visit to Workwell). Accordingly, nothing said during the course of that conversation, or done any time thereafter, including the payment of temporary total disability benefits, would serve to revive plaintiff’s claim. Specifically, plaintiff testified that at some time after she received the December 15, 2010 letter, she had a conversation with Mr. Brown and Ms. Davis during which she indicated that she was not interested in a settlement of her workers’ compensation claim but wanted to continue to receive medical treatment for her injuries. At that point, however, her claim had expired and no statements by Ms. Davis nor Mr. Brown, who at that time was already a Metalsa employee, would work to estop the defendant/employer from asserting the defense of limitations in this proceeding. Likewise, the fact that Dana Corporation mistakenly paid plaintiff’s left carpal tunnel surgery and post-surgical TTD benefits for an alleged date of injury of December 9, 2008, does not revive the expired claim. Holbrook v. Lexmark International Group, Inc., 65 S.W.3d 908 (Ky. 2001). Accordingly, plaintiff’s claim, having not been filed until September 30, 2014, is barred by the statute of limitations.

Both parties filed petitions for reconsideration which were denied by Order dated April 26, 2017.

On appeal, Wood first argues CALJ Swisher erred in finding the alleged cumulative trauma injury of December 9, 2008, is barred by the statute of limitations by “inferring” Wood was informed that her injuries were work-related in 2006. We vacate CALJ Swisher’s determination Wood’s claim for benefits for the alleged December 9, 2008 cumulative trauma injury is barred by the statute of limitations.

As the claimant in a workers’ compensation proceeding, Wood had the burden of proving each of the essential elements of her cause of action, including proving she sustained cumulative trauma injuries on December 9, 2008. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); and Eck Miller Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky. App. 1992).  Since Wood was unsuccessful in that burden, the question on appeal is whether the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985). The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). 

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  An ALJ may draw reasonable inferences from the evidence, 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.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  Although a party may note evidence supporting a different outcome than reached by an ALJ, such proof is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).  The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

KRS 342.185(1) provides notice of an accident shall be given, “as soon as practicable” and that the claim for benefits to a resulting injury must be filed within two years “after the date of accident” or following the suspension of payment of income benefits, whichever is later.  The Kentucky Court of Appeals, in Randall Co. v. Pendland, 770 S.W.2d 687(Ky. App. 1989), adopted a rule of discovery with regard to injuries caused by cumulative trauma, holding the date of injury is when the disabling reality of the injuries becomes manifest. See also Consol of Kentucky, Inc. v. Goodgame, 479 S.W.3d 78 (Ky., 2015). Therefore, in injury claims caused by cumulative trauma, the date for giving notice and for clocking the statute of limitations is triggered by the date of manifestation.  Special Fund v. Clark, 998 S.W.2d 487 (Ky. 1999). 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).  Consequently, “for cumulative trauma injuries, 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 at 82.

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 March 30, 2017, Opinion and Order, CALJ Swisher determined that despite “almost no evidence” addressing the date of manifestation for Wood’s alleged cumulative trauma injury claim of December 9, 2008, he inferred Wood was informed her alleged December 9, 2008, cumulative trauma injuries were work-related “no later than 2006” when she treated with Drs. Harter and Jackson. Later in the Opinion and Order, CALJ Swisher reiterates Wood “has known since at least 2006 that her symptoms are work-related.” This determination is inconsistent with the law pertaining to a claimant’s obligation to provide notice and the clocking of the statute of limitations in cumulative trauma injury claims. In cumulative trauma injuries, “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 at 82. (emphasis added). In other words, CALJ Swisher cannot infer Wood was informed her alleged December 9, 2008, cumulative trauma injury is work-related “no later than 2006” without evidentiary support.

Further, 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); Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). The fact that, Wood “answered in the affirmative to the question ‘is this a work-related injury?’” when she was seen at Workwell on December 19, 2008, is irrelevant to an analysis regarding the date of manifestation of a cumulative trauma injury. The fact that Wood was receiving treatment for her injuries did not create an obligation to notify her employer of a work-related injury and file a Workers’ Compensation claim. Rather, a physician must diagnose the condition and its work-relatedness before the requirement to provide due and timely notice and the statute of limitations are triggered.

On remand, CALJ Gott or the ALJ designated by him must determine the date of manifestation for Wood’s alleged December 9, 2008, cumulative trauma injuries pursuant to the law set forth in Consol of Kentucky, supra, et. al. We note the record appears to indicate the date of “December 9, 2008,” has very little if any relevance to the actual injury and the issue of the date of manifestation.  In her affidavit, attached to the original Form 101 and the “Additional Application,” Wood states she chose December 9, 2008, as the first date of injury because “that is the date the insurance carrier has used.” In her January 21, 2015, deposition, Wood testified that was that date used by the “safety guy” at Dana Corp.

Significantly, Dr. Bilkey’s IME report, dated January 5, 2015, explicitly addresses the work-relatedness of the alleged December 9, 2008, cumulative trauma injury. Thus, January 5, 2015, the date of his report, would be the date of manifestation for this injury for purposes of resolving the issues of notice and the statute of limitations if there is no other medical evidence in the record addressing the work-relatedness of the alleged December 9, 2008, injury. On remand, once there has been a determination regarding the manifestation date of the December 9, 2008, injury, the CALJ or ALJ can address whether Wood provided due and timely notice of her alleged cumulative trauma injury and whether the statute of limitations bars her claim consistent with the applicable statutory and case law. Should the CALJ or ALJ determine Wood provided due and timely notice of her cumulative trauma injury and her claim is not barred by the statute of limitations, he or she must resolve Wood’s claim for benefits for alleged cumulative trauma injuries sustained on December 9, 2008, on its merits.

Wood’s second argument on appeal consists of two sentences. The first sentence asserts CALJ Swisher erred by failing to find that payments of TTD benefits and medical benefits from October 22, 2013, to July 9, 2013, tolled the statute of limitations. The second sentence, entirely in parentheticals, states as follows: “(Claimant acknowledges that this position is contrary to the current case law and Claimant intends to further challenge).” This Board is at a loss as to how to address Wood’s second argument, as Wood not only fails to articulate the most basic element of her argument by specifying to which injury date the alleged “tolling” of the statute of limitations pertains, but fails to provide anything of substance to which this Board can respond. In light of a lack of argument on this issue and Wood’s admission that her argument is against the current case law, we will affirm on this issue.

Finally, Wood asserts CALJ Swisher erred by finding she failed to meet her burden in proving she sustained an “injury” as defined by the Workers’ Compensation Act on October 22, 2012.

As an initial matter, by Wood’s own admission in the affidavit attached to the Form 101, October 22, 2012, was chosen as a date of “injury” because that is the date upon which Dr. Joseph Kutz performed “a left decompression of the pronator teres, the carpal tunnel, the cubital tunnel and a radical synovectomy of the flexors at the left wrist.” According to Wood’s brief to the ALJ, she is claiming that while her “difficulties” arose when she was in the employ of Dana Corp., they “were aggravated, exacerbated and worsened with the ongoing work with Metalsa which became her employer in March of 2010.” As articulated by CALJ Swisher in the March 30, 2017, Opinion and Order, “[t]he issue, therefore, is whether plaintiff sustained an injury as defined by the Workers’ Compensation Act between March 8, 2010 and October 22, 2012, as a result of her cumulative job activities at Metalsa.” CALJ Swisher ultimately determined Wood failed to prove she sustained such an injury.

In the March 30, 2017, Opinion and Order, CALJ Swisher unequivocally relied upon the medical opinions of Dr. Gabriel in concluding Wood failed to sustain her burden of proving she sustained an “injury” as defined by the Act while working for Metalsa which manifested on October 22, 2012. Dr. Gabriel opined Wood’s work at Dana Corp. between 1996 and March 8, 2010, is the approximate cause of Wood’s complaints and that there was “no additional harmful change” after Metalsa took over the plant. Dr. Gabriel’s opinions constitute substantial evidence in support of CALJ Swisher’s ultimate conclusion regarding Wood’s alleged October 22, 2012, injury. Thus, the evidence does not compel a contrary result. Consequently, CALJ Swisher’s determination regarding this alleged injury will not be disturbed.

          Accordingly, the determination that Wood’s claim for benefits based on an alleged date of injury of December 9, 2008, is barred by the statute of limitations, as set forth in the March 30, 2017, Opinion and Order and April 26, 2017, Order overruling Wood’s petition for reconsideration, is VACATED. This claim is REMANDED for additional findings consistent with the views expressed herein. Concerning all remaining issues raised on appeal, the March 30, 2017, Opinion and Order and the April 26, 2017, Order are AFFIRMED.  

          ALVEY, CHAIRMAN, CONCURS.

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

RECHTER, MEMBER. I dissent from the portion of the majority’s opinion remanding this claim to the CALJ.  As the majority notes, the statute of limitations begins to run on a cumulative trauma injury claim when a worker becomes aware that she has an injury and it is work-related.  A worker must be advised by a physician of the work-related injury.  However, neither Consol nor Alcan Foil specifies exactly how to establish that the worker has been informed by a physician of a work-related injury.  There is no statute or case law requiring that physician’s records must be submitted to establish a date of manifestation of a cumulative trauma injury.  Here, Wood was being treated continuously by Drs. Harter and Jackson since 2006, a fact to which she testified.  Significantly, these treatments were being paid for by workers’ compensation insurance.  I believe it is completely reasonable for Judge Swisher to conclude, based on these circumstances, that Wood had been informed by a physician that she had suffered a work-related injury as early as 2006.  I would affirm the dismissal of Wood’s 2008 cumulative trauma injury claim.

 

COUNSEL FOR PETITIONER:

HON WAYNE C DAUB

600 W MAIN ST STE 300

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON MICHAEL NEAL

220 W MAIN ST STE 1800

LOUISVILLE KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON STANLEY DAWSON

1315 HERR LN STE 210

LOUISVILLE KY 40222

 

FORMER CHIEF ADMINISTRATIVE LAW JUDGE:

HON ROBERT L SWISHER

657 CHAMBERLIN AVE

FRANKFORT KY 40601

CHIEF ADMINISTRATIVE LAW JUDGE:

HON DOUGLAS W GOTT

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] The hearing transcript is marked with the notation, “Poor copies of originals,” and over half of the transcript is unreadable.