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.