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May 4, 2018 201700297

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 4, 2018

 

 

CLAIM NO. 201700297

 

 

AISIN AUTOMOTIVE CASTING, LLC                  PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

HEATHER MCCOWAN and

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   Aisin Automotive Casting, LLC (“Aisin”) appeals from the Opinion and Award rendered on October 23, 2017, by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) awarding Heather McCowan (“McCowan”) permanent total disability (“PTD”) and medical benefits.  Aisin also appeals from the December 20, 2017 Order on petition for reconsideration. 

          On appeal, Aisin argues McCowan failed to join her alleged bilateral shoulder and low back injuries to a prior claim (Claim Number 2013-01278), and is therefore barred from pursuing them now pursuant to KRS 342.270(1).  Aisin argues the ALJ’s finding on reconsideration that McCowan did not pursue her shoulder and back claims, and failed to give notice due to fear of reprisal for reporting the injury is not supported by substantial evidence.  Aisin also asserts this is no basis to extend the statute of limitations or to find she met the notice requirement of KRS 342.185.  Aisin also argues the ALJ failed to award it a credit for the prior award made by the ALJ in Claim Number 2013-01278.  We vacate in part and remand for additional findings of fact regarding the nature of McCowan’s work-related injuries and notice, joinder, and Aisin’s entitlement to a credit.  

          McCowan previously sustained low back injuries in 2006 for which she did not file a claim.  McCowan later filed a Form 101 in Claim Number 2013-01278 alleging bilateral carpal tunnel syndrome due to her repetitive work activities with Aisin, manifesting on May 29, 2013.  Aisin filed the April 27, 2016 hearing transcript and the June 27, 2016 opinion from her prior claim to be considered by the ALJ in this claim.  At the April 27, 2016 hearing, McCowan described her bilateral elbow and hand complaints.  She underwent bilateral carpal tunnel releases, bilateral revision carpal tunnel releases, and bilateral cubital tunnel release. 

          McCowan also testified she experiences sharp pain in her left shoulder, but she has no symptoms in her right shoulder.  McCowan testified her left shoulder problems began in December 2015, and continued to worsen.  McCowan testified she reported her left shoulder problems to Dr. Margaret Napolitano, who had been treating her wrists and elbows.  Dr. Napolitano ordered an EMG which was normal.  McCowan last treated with Dr. Napolitano in January 2016.  McCowan returned to work for Aisin in July 2015, but struggles to perform her job.      

          McCowan also testified she had back surgery in 2006 for which she continues to take Hydrocodone, Ibuprofen, and Neurontin.  She stated those medications also help with her bilateral upper extremity symptoms. 

          McCowan’s job required her to push large baskets filled with parts to her machine, but the wheels were typically broken.  She stated she currently has a herniated disc in her back due to pushing baskets with faulty wheels, and could not recall the exact day it happened. 

          In the June 27, 2016 opinion, the ALJ stated he was most persuaded by Dr. Jared Madden’s opinions.  He diagnosed McCowan with bilateral carpal tunnel syndrome/median nerve compression and bilateral cubital tunnel syndrome/ulnar nerve compression.  He opined McCowan’s complaints are due to her work activities with Aisin and assessed a 40% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  Dr. Madden restricted McCowan’s activities and opined she does not retain the physical capacity to return to the type of work performed at the time of the injury.  Pursuant to Dr. Madden’s opinions, the ALJ awarded permanent partial disability (“PPD”) benefits based upon the 40% impairment rating, increased by the three multiplier, in the amount of $437.73 per week commencing on May 29, 2013 and continuing for 425 weeks.  The ALJ also awarded vocational rehabilitation benefits, temporary total disability benefits as already paid, and medical benefits.

          Approximately eight months after that opinion was rendered, McCowan filed a Form 101 on February 21, 2017, alleging injuries to “multiple body parts” due to her repetitive work activities with Aisin, and provided an injury date of August 9, 2016.  McCowan has worked for Aisin since 2001. 

          The ALJ granted McCowan’s motion to amend her claim to assert a specific left shoulder injury occurring in March 2016.  The ALJ also granted Aisin’s motion to compel McCowan to further specify the body parts allegedly injured on August 9, 2016.  In a response dated July 11, 2017, McCowan stated, “she has filed a claim for disc herniation to the lumbar spine and a collapse of the lumbar disc; recurrent carpal tunnel syndrome, bilateral rupture of the bicep tendons; bilateral tear of the rotator cuff and upper extremity problems.”  Aisin filed a special answer asserting the affirmative defense of failure to join claims pursuant to KRS 342.270. 

          McCowan testified by deposition on April 21, 2017, and at the final hearing held August 22, 2017.  At the time of her alleged injuries, McCowan worked for Aisin operating a trim press in the finishing department.  McCowan described her repetitive job duties of running two valve bodies through the trim press.  This required loading, unloading, and filing parts.  She also had to bend over to retrieve parts from baskets.  McCowan estimated she worked eight to twelve-hour shifts, six days per week, and ran approximately 2,000 parts per day.  McCowan ceased working in August 2016 because she was unable to use her left arm.  McCowan acknowledged she is currently receiving PPD benefits for the 2013-01278 claim.

          At her deposition, McCowan testified her left shoulder began bothering her in early 2015, and insisted she repeatedly advised her supervisor, team leader, and other employees of her arm problems.  McCowan did not attribute her left shoulder problems to a specific event.  Her treating physician did not pursue further treatment of the left shoulder after testing of the ulnar nerve at the shoulder returned normal.  Despite continuing left shoulder pain, further treatment was delayed until much later since Aisin did not “respond and send me for treatment.”  McCowan eventually sought treatment on her own after a March 2016 event.  

          McCowan stated that in March 2016, she tore her left bicep tendon when she reached up onto a top bar to pull herself up into the machine to clean it.  She experienced severe pain, her left bicep appeared deformed, and she soon began experiencing spasms.  McCowan explained she did not immediately seek treatment because she was unaware of the severity of her injury.  However, McCowan’s left shoulder symptoms worsened, and she initially sought treatment in the Spring of 2016 with Ruth Ann Combs, a nurse practitioner, who ordered an x-ray.  In August 2016, a left shoulder MRI was performed, which revealed a rotator cuff tear and a ruptured bicep.  Dr. Samuel Coy performed left shoulder surgery on December 20, 2016.  She testified the surgery helped her shoulder symptoms, although the biceps tendon could not be reattached. 

          McCowan testified that in 2006, she sustained herniated discs at L4-5 and L5-S1 at work requiring surgery.  McCowan did not pursue worker’s compensation benefits for those injuries due to her fear of losing her job.  McCowan testified that in 2014, she experienced immediate low back pain while pulling and pushing a basket.  She subsequently developed additional symptoms in her leg.  Ruth Ann Combs, the nurse practitioner, ordered an MRI and she was referred to Dr. William Brooks, who recommended a fusion.  This treatment was rendered in either 2014 or early 2015.  Her low back and leg symptoms have progressively worsened since 2014.  McCowan takes Ibuprofen, Norco, Neurontin, and Klonopin for her low back, which also relieves her left shoulder symptoms. 

          At the hearing, McCowan reiterated she has problems with both shoulders and her back, as well as reoccurring bilateral carpal tunnel syndrome and bilateral elbow symptoms.  She again discussed rupturing her left bicep tendon in March 2016.  Dr. Coy performed surgery on her left shoulder on December 20, 2016.  McCowan has continued pain from her left ruptured bicep.  McCowan testified she also experiences right shoulder pain and difficulty with range of motion.  McCowan has not received any treatment for her right shoulder.  

          McCowan acknowledged she had low back surgery in 2006, and afterward she returned to her normal job duties.  McCowan has been regularly prescribed Hydrocodone since the 2006 surgery.  She has also taken Neurontin on and off since approximately 2007 or 2008 for nerve damage in her leg.

          Unlike her deposition testimony, McCowan attributed her current low back symptoms to her work activities with Aisin.  She stated, “the two discs that I had surgery on in ’06 are bulging once again and the disk right above them at L3-4 I believe is herniated.”  McCowan attributed her symptoms to, “moving baskets that didn’t have wheels on them half the time.” 

          McCowan acknowledged having previous bilateral wrist surgery.  When asked if she is again experiencing the same symptoms, McCowan responded, “Well it’s never went away I don’t think.”  McCowan testified she experiences symptoms in both hands.  McCowan acknowledged having previous bilateral elbow surgeries, and described her current bilateral elbow symptoms as reoccurring. 

          McCowan testified she told everyone at Aisin her job activities caused her physical problems.  This included her supervisors and team leaders.  McCowan testified she called in when she was unable to work due to her symptoms.  McCowan does not believe she is able to return to any work due to her multiple symptoms.                 

          McCowan filed the records from Dr. Coy, who began treating her left shoulder in August 2016.  McCowan reported her left shoulder symptoms began approximately one year prior to the first office visit, and she injured her left bicep in March 2016.  Dr. Coy performed a left shoulder arthroscopy with rotator cuff repair and extensive debridement to include superior and anterior labral debridement and bursectomy on December 20, 2016.  He diagnosed McCowan with a left shoulder rotator cuff tear and rupture of the long head of the bicep tendon.

          McCowan also filed the June 28, 2017 EMG/NCV report of both upper extremities.  Dr. Robert Taylor concluded there was electrodiagnostic evidence of moderate median sensory-motor neuropathy at the right wrist; mild sensory neuropathy at left wrist; and some slowing along the ulnar nerve motor pathway across the right elbow.

          McCowan filed Dr. Steven Autry’s April 12, 2017 report.  He diagnosed McCowan with left bicep and rotator cuff tears; right rotator cuff tear; recurrent bilateral carpal tunnel syndrome, bilateral tardy ulnar nerve palsy; bilateral recurrent lateral epicondylitis; recurrent herniated lumbar disc with recurrent disc pathology status post laminectomy with marked disc space narrowing essentially developing fusion.  He opined McCowan’s injuries caused her complaints. 

       Dr. Autry attributed the entirety of McCowan’s conditions to cumulative trauma.  He noted McCowan has a history of repetitive activities over a protracted period of time with sustained impact loading of tendon and joint structures in both upper extremities, as well as axial and rotatory compressive loading of the lumbar spine.  Dr. Autry opined McCowan’s symptoms have been asymptomatic, dormant, and non-disabling, but were aroused into a disabling condition by her latest employment. 

       Dr. Autry found McCowan had attained maximum medical improvement.  He assessed a total 41% impairment rating pursuant to the AMA Guides, attributing 2% for the left bicep rupture and rotator cuff tear; 4% for the right rotator cuff tear; 3% for residual shoulder pain; 6% for recurrent right carpal tunnel syndrome with poor result; 6% for recurrent left carpal tunnel syndrome with poor surgical result; 1% for persistent right tardy ulnar palsy; 1% for persistent left tardy ulnar palsy; 2% for recurrent right lateral epicondylitis with pain; 2% for left lateral epicondylar with pain; and 22% for recurrent herniated lumbar disc with persistent symptoms, disc collapse and developing fusion.  Dr. Autry opined McCowan does not retain the capacity to return to work and assigned restrictions. 

       Aisin filed the May 22, 2017 report of D. Phillip Corbett, who also testified by deposition on June 12, 2017.  Dr. Corbett noted McCowan reported she injured her left shoulder in March 2013, rather than March 2016.  Dr. Corbett testified McCowan did not complain of right shoulder problems at the evaluation, and he did not review any medical records addressing that condition.  Dr. Corbett found no evidence of a right rotator cuff tear. 

       Regarding the left shoulder, Dr. Corbett found evidence of moderately severe AC arthrosis and progressive subacromial impingement syndrome, which reflects the progression from a rupture of the long head of the bicep tendon and rotator cuff.  He stated McCowan’s testimony reflects the occurrence of an acute, traumatic left shoulder injury in which she developed a pop-eye lesion, evidencing an acute rupture of the long head of the bicep tendon in March 2016.  Regardless of whether the event happened in March 2013 or 2016, it resulted in a traumatic and an acute injury.  Dr. Corbett noted the underlying impingement condition is not work-related.  Dr. Corbett testified McCowan’s job duties are inconsistent with causing repetitive tearing of the rotator cuff.  Dr. Corbett found no evidence of cumulative trauma to the left shoulder.  Dr. Corbett believes those who smoke, like McCowan, are at a higher risk for experiencing a rapid disruption of the rotator cuff tendon.  Dr. Corbett testified regardless of the cause, he would assign a 2% impairment rating for the left shoulder, but was unable to attribute the rating to the rotator cuff tear or rupture of the long head of the bicep tendon.     

       Regarding the low back, Dr. Corbett assigned a 10% impairment rating due to the 2006 surgery.  Dr. Corbett found evidence of lumbar degenerative disc disease at multiple levels with radiculopathy.  He found no evidence of cumulative trauma to the low back nor evidence of additional problems or impairment over and above those she experienced in 2006.  Dr. Corbett testified McCowan did not describe to him the 2014 incident where she experienced low back pain radiating down her leg while pushing a basket.  Regardless, this would be considered a traumatic, acute injury history.   

       A benefit review conference was held on July 11, 2017.  The parties stipulated McCowan allegedly sustained cumulative trauma injuries on August 9, 2016 and a specific injury in March 2016.  The parties identified benefits per KRS 342.730, work-relatedness/causation, notice, injury as defined by the Act, exclusion for pre-existing disability/ impairment, date of injury, failure to join claims, and statute of limitations as contested issues.

       In the October 23, 2017 opinion, the ALJ summarized the evidence, and noted he reviewed and considered the prior hearing transcript and opinion.  Regarding notice, the ALJ found McCowan’s testimony describing the call-in procedure she used when she was unable to work due to her injuries and that she made her supervisors aware of her injuries on a frequent basis persuasive.  The ALJ noted McCowan notified Aisin by letter dated February 21, 2017, presumably when she filed the Form 101.  The ALJ also found McCowan’s “cumulative trauma injuries” manifested on April 12, 2017, the date of Dr. Autry’s evaluation.  The ALJ therefore found McCowan satisfied the notice and statute of limitations requirements of KRS 342.185.  Regarding joinder, the ALJ found, “due to the manifestation date, the plaintiff could not have been expected to join the cumulative trauma claim to her prior filing.” 

       The ALJ found Dr. Autry’s opinion most consistent with the medical evidence and McCowan’s testimony regarding the onset of injuries and her attempts to continue working over the years.  The ALJ found Dr. Autry’s opinion that McCowan’s complaints were due to many years of working and his assessment of impairment ratings persuasive.  The ALJ then determined McCowan is permanently totally disabled, and awarded PTD benefits in the sum of $506.64 per week commencing on August 9, 2016, and medical benefits. 

       Aisin filed a petition for reconsideration requesting additional findings of fact supporting his finding on notice, arguing McCowan acknowledged she knew her low back and upper extremities conditions were related to her work in 2006, 2014, 2015 and 2016 and the evidence demonstrated those injuries were due to acute traumas.  Aisin also alleged McCowan was aware of her low back and shoulder claims, but failed to join them to Claim Number 2013-01278.  

       Aisin requested additional findings of fact regarding the ALJ’s reliance on Dr. Autry’s restrictions in his PTD analysis.  Aisin requested additional findings of fact addressing the alleged March 2016 acute, traumatic left shoulder injury, and whether she provided proper notice.  Aisin also argued this traumatic injury was not joined to the prior claim even though she testified she was having problems with her left shoulder at the hearing for the prior claim.     

       Aisin requested additional findings of fact regarding the alleged low back injury.  Aisin argued McCowan sustained an acute low back injury in 2014 when pushing a metal basket, rather than a cumulative injury.  She also testified she knew her 2006 low back injury and surgery were work-related.  Aisin argued McCowan was required to report her acute injury claims within two years and join them with Claim Number 2013-01278.  It stated the ALJ cannot assume Dr. Autry was the first physician to notify McCowan that her low back complaints and 2006 surgery were work-related. 

       Aisin argued the ALJ erred in awarding PTD benefits beginning on August 9, 2016 since he found the cumulative trauma injuries did not manifest until Dr. Autry’s evaluation on April 12, 2017. 

       Aisin stated the ALJ did not address the issue of a credit for the prior award of PPD benefits for the upper extremities pursuant to KRS 342.730(2).  Aisin requested the ALJ amend the award to reflect a credit. 

       Aisin also requested the ALJ correct the award to comply with KRS 342.730(4) limiting income benefits to normal old age retirement pursuant to the Social Security Act, or in the alternative, to comply with the tier down previous version of KRS 342.730(4). 

          The ALJ issued the following additional findings of fact in the December 20, 2017 order on petition for reconsideration: 

1.   No proceeding for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof… KRS 342.185.

 

2.   The Plaintiff testified that she became aware of certain injuries that were accumulating as her tenure with the Defendant progressed including the specific injury to her left shoulder as well as the cumulative trauma that she suffered and that culminated on August 9, 2016. She credibly testified that she refrained from filing a claim so that she could continue working to support her family and out of fear of reprisal for reporting the injury. The ALJ finds that her reasoning was sound and that therefore it was not practicable for the Plaintiff to have reported any injury prior to the notice given to the Defendant. The ALJ finds that the Plaintiff's cumulative trauma injury became manifest on April 12, 2017, with the determination made by Dr. Autry and that she moved to join the cumulative trauma claim and thus to notify the Defendant herein as soon as practicable. The ALJ therefore finds that notice was given as soon as practicable.

 

3.   The ALJ finds that the Plaintiff's cumulative trauma injury date and thus the date upon which her permanent total disability benefits must begin is August 9, 2016. This date was the date of her last day of employment with the Defendant and she testified credibly that she physically was incapable of continuing beyond that date. The Plaintiff testified credibly that she tried to keep working and actually worked despite experiencing pain and discomfort but ultimately unable to continue on August 9, 2016, after her request to be taken off work was denied. The Plaintiff's numerous specific and cumulative trauma injuries have combined to render her permanently and totally disabled as of August 9, 2016.

 

          The ALJ also amended the award of PTD benefits to conform with Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017).  The ALJ did not address the issues of joinder or credit.

          On appeal, Aisin argues McCowan failed to join her bilateral shoulder and low back claims during the pendency of Claim Number 2013-01278, pointing out portions of the April 27, 2016 hearing transcript. 

          Aisin argues McCowan’s testimony establishes she suffered an acute low back injury in 2014 while pushing a basket, which resulted in a sudden onset of back pain and burning in her legs.  Aisin also argues McCowan suffered an acute, rather than cumulative, injury to her left bicep in March 2016, and her left shoulder has bothered her since early 2015.  Aisin argues substantial evidence does not support a finding of cumulative trauma injuries to the low back and shoulder.  Aisin asserts McCowan is asserting cumulative trauma to avoid the legal requirement of joinder.   

          Aisin argues the ALJ’s finding on reconsideration regarding notice is not supported by substantial evidence.  Aisin argues the ALJ erroneously used McCowan’s testimony that she did not report her 2006 low back injury due to her fear of losing her job to excuse her failure to give notice of her later shoulder and back claims.  Aisin points out McCowan had filed a claim in 2013, and now has a pending claim before the same ALJ.    

          Aisin also argues the ALJ erroneously failed to award a credit for the prior award pursuant to KRS 342.730(2), resulting in McCowan receiving more than a total disability rate.  As a result, McCowan will receive $981.37 per week.

          An ALJ has wide-ranging discretion in reaching his or her decision. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006).  KRS 342.285 designates the ALJ as the finder of fact, and is granted the sole discretion in determining the quality, character, and substance of evidence.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).  Likewise, the ALJ, as fact-finder, may choose whom and what to believe and, in doing so, 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 party’s total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977); Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). 

          However, such discretion is not unlimited.  In reaching a determination, the ALJ must provide findings sufficient to inform the parties of the basis for the decision to allow for meaningful review.  Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).  In Arnold v. Toyota Motor Manufacturing, 375 S.W.3d 56, 61-62 (Ky. 2012), the Kentucky Supreme Court directed as follows:  

KRS 342.275(2) and KRS 342.285 contemplate an opinion that summarizes the conflicting evidence concerning disputed facts; weighs that evidence to make findings of fact; and determines the  legal significance of those findings. Only when an opinion summarizes the conflicting evidence accurately and states the evidentiary basis for the ALJ's finding [footnote omitted] does it enable the Board and reviewing courts to determine in the summary manner contemplated by KRS 342.285(2) whether the finding is supported by substantial evidence and reasonable.

 

          Although the ALJ identified the diagnoses and respective impairments provided by Dr. Autry in his analysis, on remand, the ALJ must address the nature of each injury, specifically the alleged low back and left shoulder.  The record contains conflicting evidence as to whether those conditions resulted from acute or cumulative trauma and Aisin requested additional findings of fact on this issue.  The ALJ provided no analysis or discussion addressing whether McCowan’s alleged left shoulder and low back injuries were caused by cumulative or acute trauma, which is necessary in any analysis involving notice and the statute of limitations.  With regard to the left shoulder, McCowan’s pleadings indicate both an alleged cumulative trauma manifesting on August 9, 2016 and a specific injury occurring in March 2016.  McCowan’s testimony also indicates her left shoulder began bothering her in 2015, and she experienced a traumatic injury to her left bicep in March 2016 as she was pulling herself up into the machine.  Dr. Coy’s medical record, as well as the opinions of Drs. Corbett and Autry, reflect a similar history of the left shoulder. 

          Similarly, the evidence is conflicting as to whether McCowan’s low back condition was caused by cumulative or a specific, acute injury.  McCowan alleged in the Form 101 her low back condition was caused by repetitive work activities.  However, at the deposition, McCowan testified she experienced an immediate onset of low back pain while maneuvering a basket in 2014, and indicated that although she could not remember the exact date, she clearly remembered the incident.  At the hearing, McCowan attributed her low back symptoms to her work activities with Aisin, specifically the repetitive moving of baskets with wheels that were either broken or missing.  The medical reports also provide conflicting opinions on this issue.   

KRS 342.185(1) provides notice of an accident shall be given, “as soon as practicable” and 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.  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, Inc. v. Goodgame, 479 S.W.3d 78, 82 (Ky. 2015).  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. 

          Therefore, on remand, the ALJ is directed to make a specific determination regarding whether McCowan’s alleged low back and left shoulder conditions resulted from cumulative or acute trauma.  Only then can the ALJ perform the appropriate analysis regarding notice.  

          We also remand for additional findings of fact addressing the issue of joinder of claims, particularly in light of the ALJ’s failure to address this issue in the order on reconsideration.  KRS 342.270(2) provides, “When the application is filed by the employee or during the pendency of that claim, he or she shall join all causes of action against the named employer which have accrued and which are known, or should reasonably be known, to him or her.”  Failure to join all accrued causes of action results in such claims being barred as waived by the employee.  Once an application for benefits is filed, KRS 342.270(1) places the burden upon the worker to join all accrued and known causes of action that may exist against the same employer during the pendency of the claim. 

          We acknowledge at the time of the previous hearing held in April 2016, McCowan discussed her left shoulder and low back symptoms but expressly denied she had any right shoulder symptoms.  We also note Aisin solely relies on this testimony in arguing McCowan’s low back and shoulder claims should have been joined to the previous claim.  There are no medical records pre-dating the April 2016 hearing pointing to treatment, diagnostic studies, diagnoses, or assessments regarding the low back and left shoulder conditions.  With this in mind and in light of Aisin’s petition for reconsideration, we vacate and remand for additional findings of fact addressing whether the low back and left shoulder causes of action had accrued and were known, or should reasonably be known, to McCowan during the pendency of Claim Number 2013-01278. 

          We also vacate and remand to the ALJ to determine whether Aisin is entitled to a credit pursuant to KRS 342.730(2), in light of Aisin’s petition for reconsideration requesting additional findings of fact on this issue.  That statute provides:   

(2) The period of any income benefits payable under this section on account of any injury shall be reduced by the period of income benefits paid or payable under this chapter on account of a prior injury if income benefits in both cases are for disability of the same member or function, or different parts of the same member or function, and the income benefits payable on account of the subsequent disability in whole or in part would duplicate the income benefits payable on account of the pre-existing disability.         

 

          McCowan sustained bilateral upper extremity injuries, manifesting on May 29, 2013, for which she was awarded benefits.  The ALJ now finds McCowan sustained additional injuries, including injuries to her bilateral upper extremities, rendering her permanently totally disabled.  Because this claim involves successive compensable injuries, the concept of "excess disability" applies.

          Prior to 1996 when the Special Fund shared liability with the employer, the doctrine of “excess liability” placed liability on the Special Fund so that the employer would not be responsible for more liability than the injury sustained while in its employ.  KRS 342.120(6) provided that where the combined effect of the worker’s previous disability and a new injury resulted in a greater overall degree of disability than the latest injury alone would have caused, the employer was liable only for that percentage of disability attributable to the last injury.  Pursuant to KRS 342.120(7), the greater disability which resulted from the combined effect of the latest injury superimposed upon the previous disability was apportioned to the Special Fund. Since the 1996 amendments, what was once Special Fund liability has been shifted to the employer. See McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 859 (Ky. 2001).  With the demise of the Special Fund, the doctrine of “excess disability” survived the 1996 amendments only with regard to awards was for total and not partial benefits. See Moore v. Pontiki Coal Corp., 2001-SC-0089-WC (rendered October 25, 2001 and ordered not to be published).

          The Board considered the issue of excess disability in a case of successive injuries resulting is total disability in Sears Roebuck & Co. v. Dennis, 131 S.W.3d 351 (Ky. App. 2004). In Dennis, the claimant sustained an injury to his low back in 1995 while working for Radio Shack.  He sustained an injury to his knee in 2000 in the employ of Sears.  The Court in Dennis affirmed the Board’s decision and cited extensively from our opinion.  It noted the Board analyzed Campbell vs. Sextet Mining, 912 S.W.2d 25 (Ky. 1996) and its companion cases of Fleming vs. Windchy, 953 S.W.2d 604 (Ky. 1997) and   Whittaker vs. Fleming, 25 S.W.3d 460 (Ky. 2000) and Spurlin vs. Brooks, 952 S.W.2d 687 (Ky. 1997). It cites our opinion verbatim as follows:

     (C)laimants who are rendered totally disabled by a series of work injuries with different overlapping awards are to receive benefits that correspond to the whole of their disability on the date that disability begins.  Generally, if a worker has a disability for which he is receiving benefits, or is so entitled at the time his permanent total disability manifests, then the employer liable for the subsequent total disability award receives a dollar-for-dollar offset for permanent partial disability benefits paid from and after the date total disability benefits are scheduled to begin.  However, where a subsequent injury occurs and the worker is determined to be totally and permanently disabled, the amount and duration of an award for a prior condition may not be extended beyond that allowed under the Act for permanent partial disability if the first injury is combined with the subsequent injury to find total disability.  Liability for the injured worker’s total disability award falls to the employer or carrier when the subsequent injur(y) occurred with a dollar-for-dollar credit permitted for any prior overlapping permanent partial disability awards, and the extent and duration of that total award is determined as of the date of the last work-related injury.... After the expiration of any overlapping period of permanent partial disability, the original overlapping dollar amount becomes excess disability and becomes the liability of the workers’ compensation insurance carrier legally responsible for the final injury for so long as the claimant is disabled. 

Id at 354.

 

          In Tempur-Pedic, Inc. v. Hall, (Claim Nos. 00-01447 & 98-62170, rendered May 21, 2002),  we considered facts where there were two injuries, both of which occurred post-1996 with the same employer but different insurers at risk resulting in the claimant’s total occupational disability.  Therein we held:

     Our understanding of the Court's guidance on these matters is that, generally, if a worker has a prior, active disability for which he is receiving benefits, or is so entitled at the time his permanent total disability manifests, then the defendant liable for the subsequent total disability award receives a dollar-for-dollar offset for permanent partial disability benefits paid from and after the date total disability benefits are scheduled to begin.  However, where a subsequent injury has occurred after which a worker is determined to be totally and permanently disabled, the amount and duration of an award for a prior active condition may not be extended beyond that allowed under the Act for permanent partial disability. Hence, liability for the injured worker’s total disability award falls to the last employer or carrier with a dollar-for-dollar credit permitted for any prior overlapping permanent partial disability awards, and the extent and duration of that total award is determined as of the date of the last work related injury. The fact that a prior active disability contributes to the injured worker’s total disability does not alter this analysis.

          In light of the appearance of overlapping awards and the ALJ’s failure to address Aisin’s request of a credit in the order on petition for reconsideration, we vacate the award of income benefits, and remand to the ALJ with directions to address KRS 342.730(2)and the issue of excess disability.  

          Accordingly, the October 23, 2017 Opinion and Award and the December 20, 2017 Order on petition for reconsideration by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby VACATED IN PART.  This claim is REMANDED to the Administrative Law Judge for additional findings of fact and entry of an amended opinion in conformity with the views expressed herein.  

          ALL CONCUR.

 

COUNSEL FOR PETITIONER:

HON EMILY E WALTERS 

1511 CAVALRY LN, STE 201

FLORENCE, KY 41042

 

COUNSEL FOR RESPONDENT:

 

HON MCKINNLEY MORGAN

921 SOUTH MAIN STREET

LONDON, KY 40741

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT, KY 40601