DEBRA L. COOK v. FIELD PACKING COMPANY, LLC; HONORABLE JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 26, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000788-WC
DEBRA L. COOK
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-04-00827
FIELD PACKING COMPANY, LLC;
HONORABLE JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KELLER, JUDGES; GRAVES,1 SENIOR JUDGE.
DIXON, JUDGE: Debra Cook seeks review of a decision of the Workers' Compensation
Board affirming an administrative law judge's order dismissing in part and denying in
part Cook's claims for workers' compensation benefits. We find no error and affirm.
1
Senior Judge J. William Graves, sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Cook, age 52, has a tenth grade education and obtained a GED. She began
working at Field Packing Company's Owensboro, Kentucky, meat processing plant in
April 1995. Cook suffered a right shoulder injury in March 1997, while lifting a large
carton of hot dogs above her head. In January 2002, Cook underwent surgery on her
right shoulder for a torn rotator cuff. Cook received TTD benefits for her initial right
shoulder injury until June 16, 2003.2
However, prior to her rotator cuff surgery, Cook alleged she further injured
her shoulder on October 25, 2001, while lifting a box above her head. Although Cook
contends she reported the injury to her supervisor, the alleged injury was not referred to
the office of workers' claims until May 6, 2004.
On May 12, 2003, Cook was performing light duty work in the dry storage
area of the plant. Cook felt her left shoulder “pop” when she attempted to lift a large roll
of labels onto a shelf above her head. Cook sought treatment for her left shoulder pain,
and she subsequently filed a Form 101 application for resolution of injury claim on May
26, 2004. In her Form 101, Cook alleged she was entitled to benefits for the right
shoulder injury on October 25, 2001, and the left shoulder injury on May 12, 2003.
In September 2004, the claim was held in abeyance at Cook's request. In
May 2005, after reaching maximum medical improvement, Cook moved the ALJ to
schedule a benefit review conference. The conference was held in May 2006; thereafter,
on June 19, Cook moved to amend her Form 101 to include her right shoulder injury of
2
Cook received $15,975.12 in TTD benefits for the 1997 right shoulder injury. Additionally,
medical expenses totaling $28,243.80 were paid for the 1997 injury.
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March 1997. Over Field's objection, the ALJ granted Cook's request to amend her Form
101. At the final hearing on August 22, 2006, Cook testified on her own behalf, and both
parties introduced medical evidence. In an opinion and order rendered October 20, 2006,
the ALJ dismissed Cook's claims relating to the 1997 and 2001 injuries as time-barred,
and he denied Cook's claim on the 2003 left shoulder injury for failure to prove causation.
Cook appealed to the Board, which affirmed the ALJ's decision. This petition for review
followed.
Cook argues the Board erred as a matter of law in affirming the ALJ's
dismissal of the 1997 and 2001 right shoulder claims as time-barred. Cook further
contends the Board clearly misconstrued the evidence relating to causation of her 2003
left shoulder claim.
On appellate review of the Board's decision, this Court will reverse only if
“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.”
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). After reviewing the
record and considering the written arguments of the parties, we conclude the Board
correctly applied the law and properly affirmed the ALJ's opinion and order. Because we
find the Board's analysis well-reasoned, we adopt it herein as our own:
On appeal, Cook argues the ALJ erred in dismissing the
claims for benefits for the March 20, 1997 and October 25,
2001 injuries based on the statute of limitations. Cook argues
the payment of TTD benefits must be seen as relating to both
alleged injury dates. The October 25, 2001 injury claim was
filed within two years of the termination of TTD benefits;
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therefore, Cook argues the October 25, 2001 claim is not
barred by the statute of limitations. Cook argues the 1997
claim would not be barred since she amended her claim to
include the 1997 injury date. She contends the amendment
relates back to the original filing date of the claim for the
2001 and 2003 injuries. Addressing her claim for a left
shoulder injury of May 12, 2003, Cook argues the ALJ erred
in finding she failed to meet her burden of proving causation.
Cook states her deposition and hearing testimony was
undisputed. She argues the evidence shows that although she
may have experienced prior problems with her left shoulder,
the left shoulder injury of May 12, 2003 was a separate and
distinct injury which required extensive medical treatment.
She argues it was not until after the May 12, 2003 left
shoulder injury that an MRI revealed a left shoulder torn
rotator cuff. She argues the torn rotator cuff, which resulted
from the May 12, 2003 event, is a harmful change in the
human organism evidenced by objective medical findings.
We find no error in the ALJ's dismissal of the
right shoulder claims based upon the statute of limitations. In
the absence of a petition for reconsideration, on questions of
fact the Board is limited to a determination of whether there is
substantial evidence contained in the record to support the
ALJ's conclusion. Inadequate, incomplete, or even inaccurate
findings of fact on the part of the ALJ will not justify reversal
on appeal if there is identifiable evidence in the record that
supports the ultimate conclusion. Eaton Axle Corp. v. Nally,
688 S.W.2d 334 (Ky. 1985).
Here, the ALJ found that TTD benefits were
paid for the 1997 injury and no TTD payments were made for
the 2001 injury. Since TTD benefits were terminated as of
June 12, 2002, it was necessary for Cook to assert her claim
for the 1997 injury on or before June 12, 2004. Cook filed
her Form 101 on May 6, 2004 and nothing further was filed
until after June 12, 2004. She did not attempt to amend her
claim until June 2006. Clearly the 1997 claim was not
asserted until more than two years following the last payment
of TTD benefits. See KRS 342.185.
We find no legal support for Cook's argument
that the amendment of the claim for the 2001 and 2003
injuries to include the 1997 injury would relate back to the
date of filing her original claim. Cook's reliance on Hodge v.
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Ford Motor Co., 124 S.W.3d 460 (Ky. App. 2003), is
misplaced. In Hodge, the employee filed a claim for a 1998
injury and thereafter sustained an additional injury in 2000.
Hodge introduced evidence concerning her 2000 injury and
included the alleged date of the 2000 injury in her proposed
stipulations. The court held that although Hodge did not
amend her claim to include the 2000 injury, the parties tried
the issue by implied consent of the parties. Ford failed to
object to introduction of evidence concerning the 2000 injury
and actively defended the claim that the 2000 injury was
work-related. Here, the 1997 injury was not tried by consent
of the parties prior to the running of the statute of limitations.
Further, when Cook asserted her 1997 claim by seeking to
amend the Form 101 to include that injury, Field Packing
promptly asserted its statue of limitations defense.
Since the ALJ determined no TTD benefits were
paid for the October 25, 2001 right shoulder injury, it was
necessary for Cook to have filed her claim on or before
October 25, 2003. Her original Form 101 was not filed until
May 6, 2004, which is more than two years following the date
of injury. Thus the ALJ correctly determined the 2001 injury
was barred by the statute of limitations.
We believe the ALJ's finding regarding the
alleged 2003 left shoulder injury is supported by substantial
evidence and we therefore affirm. The claimant in a workers'
compensation claim bears the burden of proof and risk of
persuasion and if unsuccessful before the ALJ, the question
on appeal is whether the evidence is so overwhelming upon
consideration of the record as a whole as to compel a finding
in his favor. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.
1979); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.
App. 1984).
This Board is not free to substitute its view of
the evidence for that of the ALJ and the mere presence of
some evidence that would support a contrary conclusion does
not compel a finding in Cook's favor. We must determine
whether the finding made by the ALJ is so unreasonable
under the evidence that it must be viewed as erroneous as a
matter of law. Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
Cook argued, and continues to argue, she
sustained a distinct trauma to her left shoulder on May 12,
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2003, while placing a heavy roll of labels on a shelf above her
head. She has argued the trauma on that date produced the
left rotator cuff tear. We believe the evidence falls far short
of compelling such a conclusion. As noted by the ALJ, Dr.
Perry indicated Cook had ongoing problems related to her left
shoulder dating back to April 2000. Although Cook attempts
to minimize the seriousness of her left shoulder problem prior
to the alleged 2003 injury, Dr. Johnson's records indicate he
intended to schedule Cook for a left shoulder arthroscopy,
subacromial decompression, and distal clavicle excision in
October 2002. It was suspected that Cook had sustained a
tear prior to the event of May 12, 2003. As noted above, Dr.
Perry opined Cook's left shoulder injury was a cumulative
injury and the trauma of May 12, 2003 could possibly have
served as an aggravating factor, but was clearly not the
underlying cause of her problem. The evidence simply does
not compel a finding that the alleged trauma on May 12, 2003
caused the left rotator cuff tear.
For the reasons stated herein, the decision of the Workers' Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEFS FOR APPELLEE:
Charles S. Wible
Owensboro, Kentucky
John H. Helmers
Owensboro, Kentucky
Laurie Goetz Kemp
Louisville, Kentucky
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