MARILYN K. EPLEY v. FLYNN ENTERPRISES, INC., in its self-insured Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
September 3, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000249-WC
MARILYN K. EPLEY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC95-35034
v.
FLYNN ENTERPRISES, INC., in its self-insured
capacity; FLYNN ENTERPRISES, INC., as insured
by Cigna; SPECIAL FUND; J. LANDON OVERFIELD,
Administrative Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and KNOPF, Judges.
COMBS, JUDGE:
Marilyn K. Epley appeals from a decision of the
Workers' Compensation Board (the Board) that reversed an opinion
and order of the Administrative Law Judge (ALJ).
The Board
directed the entry of an order dismissing the claim as barred by
the two-year period of limitations set forth at KRS 342.185.
affirm the opinion of the Board.
Epley worked as a sewing machine operator for Flynn
Enterprises, Inc. (Flynn).
She alleged that she first
experienced work-related disability with respect to her right
We
hand, thumb, and wrist in 1991.
She gave notice of this
condition, sought medical treatment, and was taken off work for
six (6) weeks.
During this time, she received temporary total
disability benefits.
Upon her recovery, Epley returned to work
as a sewing machine operator without impairment and without
restriction.
In April 1993, she again experienced pain in her hand.
She maintains that this pain was different and much worse than
the problems she had experienced in 1991.
She gave notice of the
condition to her employer and was referred to an orthopedic
specialist, Dr. Steve Salyers.
before.
Epley was not taken off work as
Instead, she continued to work at the same job.
On
April 19, 1994, however, she was reassigned to a supervisory
position entailing lighter duty and a pay-cut.
Epley filed her
Application for Adjustment of Claim on September 5, 1995; she
listed April 19, 1994 (the date of her reassignment to lighter
duty), as the date of disability.
Upon his review of the evidence, ALJ Overfield found
that Epley's disability manifested itself in 1991.
Consequently,
in an opinion and order entered June 24, 1996, ALJ Overfield
dismissed Epley's claim on the ground that it was filed outside
the period of limitations.
An appeal to the Board followed.
Board reversed and remanded the case to the ALJ, noting as
follows:
An individual who experiences a cumulative
trauma may, just as one who sustains two
separate single identifiable incidents, have
pre-existing active disability but still
experience compensable occupational
disability. We cannot simply presume that
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The
once an individual experiences a disability
manifestation that it forever forecloses
recovery for additional trauma experienced by
the individual. . . .Therefore, even if the
ALJ could find an original manifestation date
beyond the period of the statute of
limitations, he would need to make further
findings as to whether mini-traumas caused
increased occupational disability within the
period of the statute of limitations
(original Board Opinion at 7).
An appeal to this court was
dismissed as having been taken prematurely from a nonfinal
decision.
On remand, ALJ Overfield re-analyzed the evidence and
determined that Epley had in fact experienced additional
cumulative trauma and that as a result of that additional trauma,
she had a second "manifestation of disability date" -- April
1993.
Specifically, he found as follows:
Dr. Salyers testified, unequivocally, that
plaintiff did have an onset of disability
caused by her work-related activity arousing
her pre-existing osteoarthritis and did have
functional impairment and the need for
restrictions as of April 21, 1993.
I find that Plaintiff did not have a workrelated injury in 1994 but simply a flare-up
or exacerbation of the condition which was
manifest in April of 1993. In making this
finding I have relied on Dr. Salyers'
testimony.
(Opinion and Award on Remand at 4).
Although he found that
Epley's disability became manifest as of April 21, 1993, the ALJ
did not conclude that the claim was barred by the two-year period
of limitations set forth at KRS 342.185.
Consequently, he
awarded Epley benefits for a thirty-one percent (31%) permanent
partial occupational disability beginning April 20, 1993.
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Flynn and its insurer appealed the ALJ's opinion and
award to the Board.
In an opinion rendered January 15, 1999, the
Board indicated that the ALJ's findings of fact compelled the
conclusion that the claim had been filed outside the period of
limitations.
As a result, the Board reversed the ALJ's opinion
and award and remanded the matter for entry of an order
dismissing the claim.
This appeal followed.
On appeal, Epley contends that the Board erred by
concluding that her claim was barred by the period of
limitations.
She contends that the first "manifestation of
disability" occurred in April 1994, when medical restrictions
forced her to work in a position less demanding of her hand.
We
are compelled to follow the Kentucky Supreme Court's recent
decision in Alcan Foil Products v. Huff, (98-SC-678-WC, rendered
June 17, 1999), which is at odds with her contention and which
essentially announces a new rule as to the statute of limitations
with respect to discovery of an injury.
In Alcan, the Supreme Court considered whether an ALJ
properly determined that each of three workers' claims arose when
each worker became aware that he had sustained a significant
hearing loss caused by work and consequently that each claim was
barred by the two-year period of limitations.
In reaching its
decision to affirm the ALJ, the court re-visited the reasoning of
Randall Co. v. Pendland, Ky. App., 770 S.W.2d 687 (1989).
The Pendland Court recognized that an injury resulting
from the cumulative effect of minitrauma develops gradually and
that a worker does not become aware that a work-related injury
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has been sustained until the injury manifests itself in the form
of physically and/or occupationally disabling symptoms.
Thus,
the Pendland court defined a rule of discovery for the purposes
of notice and the statute of limitations.
In Alcan, the Kentucky Supreme Court noted that the
worker in Pendland "discovered" her injury when she experienced
disabling symptoms of pain.
The worker's manifestation of
physical and occupational disability (and the activation of the
running of the period of limitations) had coincided temporally.
However, because the facts surrounding the Alcan workers's claims
indicated that the workers "discovered" their physical
disabilities more than two years before their claims were filed,
the Supreme Court re-focused on the phrase "manifestation of
disability" as used in Pendland.
In construing anew the
definition of "manifestation of disability," the Supreme Court
scrutinized whether it refers "to the physical disability or
symptoms which cause a worker to discover that an injury has been
sustained or whether it refers to the occupational disability due
to the injury."
Alcan at 10.
The court concluded that the
phrase should pertain to the worker's initial awareness or
discovery that an injury had been sustained, expressly stating:
Nothing in Pendland indicates that the period
of limitations should be tolled in instances
where a worker discovers that a physically
disabling injury has been sustained, knows it
is caused by work, and fails to file a claim
until more than two years thereafter simply
because he is able to continue performing the
same work. We also note that a worker's
ability to perform his usual occupation is
not dispositive of whether he has sustained
an occupational disability. Contrary to the
view expressed by the Board and the Court of
-5-
Appeals, a worker is not required to
undertake less demanding work
responsibilities or to quit work entirely in
order to establish an occupational
disability.
Alcan at 11.
(Footnote and citations omitted).
In evaluating the ALJ's determination that the workers'
claims were barred by the period of limitations, the Supreme
Court noted that the workers had been aware of their work-related
disability for many years before their claims were filed.
It
noted that the medical evidence established that the level of
impairment had been in existence for more than two years before
the claims were filed and had not changed since that time.
Finally, the court noted that the work restrictions which had
been imposed at the time of litigation would have been imposed
more than two years before the claims were filed if the workers
had sought medical advice at that time.
As a result, the ALJ's
dismissal of the workers' claims was affirmed.
Turning to the facts before us, we note that ALJ
Overfield specifically found that the manifestation of Epley's
disability occurred in April 1993 -- more than two years before
her claim was filed.
Relying on Dr. Salyers's testimony, ALJ
Overfield found that the level of impairment upon which the claim
of occupational disability was based was in existence more than
two years before the claim was filed and that it had not changed
in more than two years before that date.
In point of fact, the
diagnosis of Dr. Salyers in May 1995 was exactly the same as it
had been in April 1993. Thus, the ALJ's determination parallels
the holding in Alcan.
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The Board's found that the evidence presented supported
ALJ Overfield's determination that no appreciable worsening of
Epley's condition had occurred within two years of the filing of
her claim.
Epley's condition in April 1994 constituted a "flare-
up or exacerbation of the condition which was manifest in April
of 1993."
(Opinion and Award on Remand at 4).
ALJ Overfield
concluded that the work restrictions imposed in April 1994 were
the same as those that would have been imposed in April 1993.
In
light of Alcan and given the ALJ’s findings of fact, we have no
choice but to affirm the Board and to hold that Epley's claim is
indeed barred by the period of limitations.
SCR 1.030(8)(a)
provides as follows: "The Court of Appeals is bound by and shall
follow applicable precedents established in the opinions of the
Supreme Court...."
Epley argues in the alternative that the parties
stipulated April 19, 1994, as the date of injury.
The Board
held, however, that a stipulation contained in the settlement
agreement between Epley and the Special Fund had no binding force
as to the parties to the litigation that ensued and consequently
to this appeal.
Finally, we agree with the Board that the employer's
special answer, filed following the original application for
adjustment of claim and alleging that the claim was barred by the
period of limitations, inures to the benefit of the employer's
insurer, Cigna.
As a result, we cannot conclude that the insurer
waived this defense to Epley's claim.
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For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE SPECIAL
FUND:
W. Douglas Myers
W. Jonathan Sweeten
Hopkinsville, KY
Joel D. Zakem
Louisville, KY
BRIEF FOR APPELLEE FLYNN
ENTERPRISES, INC., in its
self-insured capacity:
Terrance J. Janes
Hopkinsville, KY
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