MARK MILBY v. RIVER METALS RECYCLING, L.L.C. D/B/A RIVER CITY SHREDDING AND BALING; HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: June 22, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002858-WC
MARK MILBY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-00997
v.
RIVER METALS RECYCLING, L.L.C. D/B/A
RIVER CITY SHREDDING AND BALING;
HON. LLOYD R. EDENS, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Mark Milby has filed a petition for review of an
opinion of the Workers’ Compensation Board affirming the
dismissal of his claim for occupational disability benefits.
In
its opinion, the Board relied on, inter alia, Alcan Foil Products
v. Huff,1 in affirming the order of the Administrative Law Judge
which had dismissed Milby’s claim based on his failure to provide
timely notice and as untimely under the applicable statute of
limitations.
1
Having concluded that the Board has not “overlooked
Ky., 2 S.W.3d 96 (1999).
or misconstrued controlling statutes or precedent, or committed
an error in assessing the evidence so flagrant as to cause gross
injustice,”2 we affirm.
Milby began working for River Metals Recycling, L.L.C.,
d/b/a River City Shredding and Baling (River City) in June 1993,
as a laborer in the shredding department.
Over the last several
years of his employment, he worked as a heavy equipment operator
in the baling division, a position in which he remained until
March 1999.
On March 15, 1999, Milby was operating an ergonomically
designed Hitachi crane.
In order that Milby could take a lunch
break, his supervisor asked a co-worker to temporarily take over
the operation of the crane.
The co-worker informed the
supervisor that his back was hurting, whereby he was instructed
to go to the company doctor and then to go home.3
shut down until Milby’s return.
The crane was
Upon learning that the co-worker
was allowed to go home early, Milby asserted that operating the
crane had caused his back to hurt constantly.
He was instructed
to complete an injury report and to go to the company doctor.
Later that day, Milby was seen by Dr. John Rose, an
internal medicine specialist.
Milby reported that he had
suffered from back pain on a daily basis over the last four or
five years.
He did not express any specific injury or trauma,
2
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
3
The co-worker suffered back problems from a prior soccer
injury. He never asserted that the crane caused him back pain
nor did he file a workers’ compensation claim alleging same.
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merely stating that he believed his pain was caused by operation
of the crane.
Dr. Rose diagnosed a lumbar strain and released
Milby to return to work.
Instead of returning to work the next day, Milby went
to his family physician, Dr. Patrick Murphy.
Milby did not
report to Dr. Murphy that he had injured his back while operating
heavy equipment in the course of his employment, but stated that
he had finally decided to do something about his long-time back
ailments.
Dr. Murphy restricted Milby from work and ordered a CT
scan, which revealed a disc protrusion at the L4-5.
Milby was
then referred to Dr. John Guarnaschelli, a neurologist, who began
his treatment on March 25, 1999.
Milby reported to Dr. Guarnaschelli that he had
experienced back trouble over the entire course of his employment
with River City, attributing the pain to the nature of his work,
and describing his pain as chronic and long-standing.
Upon the
initial interview, Dr. Guarnaschelli noted that Milby was
attempting to determine whether “this represented w/c or not.”
The tests ordered by Dr. Guarnaschelli revealed disc protrusions
of the nerve root compression at the L4-5 and L5-S1.
Dr.
Guarnaschelli performed a laminectomy and foraminotomy at the L45 and L5-S1 on July 4, 1999.
Milby was released from the
doctor’s care on August 4, 1999; however, he did not return to
work.
He filed his claim for occupational disability benefits on
August 6, 1999.
Milby was also examined by Dr. Robert Keisler, an
orthopedic surgeon, who found degenerative disc disease at L4-5
-3-
and L5-S1 with radiculopathy and subsequent surgery.
Dr. Keisler
opined that disc disease usually occurred as a part of the normal
aging process.
He further noted that Milby suffered from
developmental spinal stenosis which was likely to be congenital
in origin.
He believed that the nature of Milby’s work may have
aggravated the symtomatology, but that it was not the cause of
his overall condition.
During his deposition, Milby testified that he had
experienced low back pain for several years prior to leaving work
on March 15, 1999.
In fact, Milby admitted that he had missed
work in the past due to his back pain.
He claimed that his pain
was caused by the operation of heavy equipment and that he was
treated by Dr. Murphy for these problems prior to March 15, 1999.
River City presented the testimony of four company
representatives, all of whom had supervisory authority over
Milby.
These representatives testified that Milby had never
informed them that he was experiencing back pain or any other
problems caused by the operation of heavy equipment.
They stated
that had they been aware of any such problems Milby could have
been assigned to a different position.
There were numerous issues presented to the ALJ;
however, he dismissed Milby’s claim as follows:
The first issues for determination are
notice and statute of limitations. Mr. Milby
testified that he experience back pain for
approximately six years prior to March 15,
1999, which would correspond with the
totality of his employment with the
Respondent. Additionally, in his March 15,
1999 workers[’] compensation history
completed for Dr. Rose, he stated that he
first noted symptoms for four to five years
-4-
ago and almost every day since then [sic].
The June 29, 1995 record of Dr. Murphy
reflects that Mr. Milby was seen with
complaints of low back pain and stated that
pain would radiate down his right leg. He
further stated that he performed heavy
lifting and felt that this might be
contributing to the pain in his back.
KRS 342.185 requires that notice be
given “. . . as soon as practicable after the
happening of (the accident) . . . .”
Additionally, the statute provides the claim
must be filed within two years after the date
of accident [sic].
Recently, in Alcan Foil Products v.
Huff, Ky., 2 S.W.3d 96 (1999), the Court held
that in cumulative trauma claims, the
triggering mechanism for determining notice
and limitations was not when the injury
became occupationally disabling, but when an
individual is aware that he or she has
sustained an injury and that it is caused by
work. The medical record of Dr. Murphy
indicates that Mr. Milby was seen on June 29,
1995 due to back pain and pain radiating into
the right leg, which he attributed to heavy
lifting at work. His testimony and the
information which he provided to Drs. Rose
and Guarnaschelli would further indicate that
he had experienced continuing back problems
over the six year period that he was employed
by the Respondent.
I am persuaded by the records of Dr.
Murphy, as well as the Petitioner’s testimony
that, at least by June 29, 1995, he was aware
that he had a back problem and that he
related it to his work. In light of that
determination and the fact that notice of a
work-related injury was not given to the
Respondent until March 15, 1999 and the claim
was not filed until August 6, 1999, I find
that timely notice was not given to the
Respondent nor was the claim filed within two
years as required by KRS 342.185.
Milby appealed this decision to the Board which
affirmed the ALJ’s order on November 8, 2000.
review followed.
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This petition for
“The function of further review of the WCB in the Court
of Appeals is to correct the Board only where the the [sic] Court
perceives the Board has overlooked or misconstrued controlling
statutes or precedent or committed an error in assessing the
evidence so flagrant as to cause gross injustice.”4
In affirming the ALJ’s finding that Milby had failed to
provide proper notice to River City, the Board recognized that
one of the primary purposes of the notice requirement is to give
the employer an opportunity to place the employee under the care
of a competent physician, thereby possibly minimizing the
employee’s disability as well as the employer’s subsequent
liability.5
As the Board noted, Milby suffered from back
troubles from the onset of his employment with River City and,
according to the testimony of Dr. Keisler, he suffered from
congenital spinal stenosis.
If Milby had notified his employer
of his condition, there would have existed an opportunity for the
employer to address Milby’s physiological condition, both
vocationally and medically, long before he reached the 1999 level
of impairment.
Moreover, the Board aptly recognized that in Alcan
Foil, supra, our Supreme Court held that it is at the time a
worker becomes aware that he has a work-related injury that his
obligation to notify his employer arises and the statute of
limitations commences to run.
4
It matters not whether the injury
Western Baptist, supra at 687-88.
5
Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644, 134
S.W.2d 221, 223 (1939).
-6-
is occupationally disabling at the time of its occurrence or if
it is the result of cumulative trauma.6
For Milby to succeed on appeal, he must demonstrate
that the evidence presented to the ALJ compelled a finding in his
favor.7
The ALJ has the authority to draw all reasonable
inferences from the evidence.8
We hold that the Board did not
err in its assessment of the evidence or in its application of
the law.
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR RIVER METALS
RECYCLING, L.L.C. d/b/a RIVER
CITY SHREDDING AND BALING:
Edward A. Mayer
Louisville, KY
Judson F. Devlin
Louisville, KY
6
Alcan Foil, supra at 101.
7
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
8
Jackson. General Refractories Co., Ky., 581 S.W.2d 10
(1979).
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