WAL-MART V. STEPHEN PETERS, ET AL
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IMPORTANT NOTICE
NOT TO BE PIIBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PR OHUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL ATOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : NOVEMBER 23, 2005
NOT TO BE PUBLISHED
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2005-SC-0240-WC
WAL-MART
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2004-CA-2047-WC
WORKERS' COMPENSATION BOARD NO . 03-1410
STEPHEN PETERS ; HON . SHEILA C.
LOWTHER, ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant sustained a
work-related cumulative trauma injury, that he gave timely notice, and that he filed a
timely claim. The Workers' Compensation Board (Board) and the Court of Appeals
affirmed . Appealing, the employer continues to maintain that the claimant sustained a
single specific injury rather than a gradual or cumulative trauma injury and that notice
was untimely in either circumstance . We affirm .
The claimant worked as an order filler at the employer's grocery distribution
center from 1997 to 1998 and again from January 3, 2000, through September 15,
2001 . He was also a licensed plumber and since 1993 had worked intermittently as a
self-employed plumber and electrician on construction jobs . His job for the defendantemployer required constant and repetitive lifting while moving boxes of merchandise
weighing from 25 to 70 or 75 pounds and stacking them on pallets . He stated that he
worked three 11-hour shifts per week and also continued to do "a little bit of plumbing
on the side ." Asked how often he did plumbing, he responded that it was about every
two weeks.
At the hearing, the claimant testified that sometime in December, 2000, he
noticed some back pain while filling orders and thought that he must have pulled a
muscle . He explained that the pain wasn't severe and that it eased off in a day or two
after he kept working . He did not seek medical treatment and missed no work. He
stated that the pain in his back never returned . During the following months he began
to notice pain in his hip and down his leg, but he did not associate it with his work. The
pain would ease off during the day, while he was moving and working, but would
intensify at night. It gradually became more severe, prompting him to seek medical
treatment in June or July, 2001 . Dr. Hayes gave him pain medication and referred him
to Dr. Balthrop, an orthopedic surgeon .
The claimant testified that Dr. Balthrop ordered various tests, diagnosed a lumbar
condition, and referred him to Dr. Markowitz. He stated that he did not associate his
symptoms with his work until July 26, 2001, when he was informed that his lumbar
condition was work-related . Shortly thereafter, he notified Darrell Whitledge and Jeff
Phipps and was advised that his failure to report an injury in December, 2000,
precluded workers' compensation coverage. Therefore, when requesting a leave of
absence for the surgery that Dr. Markowitz recommended, he did not indicate that it was
for a work-related injury . He presented his medical bills to his health insurance carrier
and received short and long-term disability benefits based on a non-work-related
condition . Dr. Markowitz performed two lumbar surgeries, the latter of which included a
lumbar fusion. He stated that his restrictions precluded a return to work at Wal-Mart.
When cross-examined, the claimant was reminded of his prior deposition, in
which he acknowledged that he knew he had back trouble in December, 2000, and
knew his work was causing it, yet he failed to report it. Asked which version of events
was correct, the claimant stated, "I knew that I hurt my back in December, but I didn't
know that that was what was causing the pain in my leg until the doctor told me that
that's where the pain came from."
Dr. Patrick evaluated the claimant on February 1, 2003. Dr. Patrick noted a
history of a December, 2001, back injury "as a result of repetitive lifting of orders" and
referred consistently to that date rather than to December, 2000. He noted that
diagnostic testing ordered by Dr. Markowitz revealed spondylosis at the lumbosacral
junction and left lateral recess stenosis . The initial L5-S1 discectomy failed to relieve
the symptoms . In February, 2002, after diagnosing a collapsed disc space, Dr.
Markowitz performed a fusion with cages and a discectomy at L5-S1 . At Dr. Patrick's
examination, the claimant's chief complaint was left hip and leg pain that was
aggravated by flexion of the lumbar spine. He attributed the claimant's complaints to
"repetitive work injuries culminating in December 2001" and assigned a 23% AMA
impairment .
Dr. Johnson evaluated the claimant in October, 2003, at which time he
complained of pain in the left hip and posterior thigh . He indicated that his problems
began very gradually in December, 2000, when he pulled a muscle while working at
Wal-Mart, and worsened thereafter. He reported that he did not realize at the time that
his leg pain was actually due to a back problem. After examining the claimant and
reviewing his medical records, Dr. Johnson stated:
Mr. Peters had a progressive degenerative process at the
lumbosacral level. In my opinion, it completely meets the criteria
for accumulative trauma as follows : There was a gradual onset .
He continued to live with it until it was too severe to continue . His
behavior pattern is completely genuine . It is a low grade process
involving the entire lumbosacral joint of a degenerative nature .
There is no alternative diagnosis or cause. Finally, it is consistent
with the activities of his primary occupation ; that is lifting and
moving heavy boxes.
Dr. Johnson assigned a 27% AMA impairment and recommended restrictions
that limited or precluded repetitive lifting, bending, and pulling . In his opinion, the
claimant lacked the physical capacity to return to his work as an order filler.
The employer submitted the report from a December, 2003, evaluation by Dr.
Kriss . At that time, the claimant complained of lower back pain that radiated into the left
buttock and posterior thigh. He indicated that in December, 2000, he began to
experience pain in his lower back and left leg that was "not real bad at first ." Over the
next 3-4 months, his symptoms gradually worsened, however. Asked if there was a
specific injury, the claimant responded "No, just one day in December, 2000, I noticed
some low back pain with burning." After examining the claimant and reviewing his
medical records, Dr. Kriss noted that the claimant had not reported any specific workrelated injury or strain to Dr. Balthrop . Likewise, Dr. Markowitz noted that there was "no
precipitating cause or event to explain Mr. Peters' pain ."' In Dr. Kriss's opinion, this
type of history was characteristic of natural, progressive, degenerative changes rather
than a traumatic injury, particularly in view of the "unusually explicit histories from
multiple specialists ruling out any work-related cause whatsoever." He also noted that
there was no evidence of an onset of symptoms at work or work-related aggravation of
symptoms .
' Although Dr. Kriss and the other testifying experts reviewed Dr. Balthrop's and Dr.
Markowitz's treatment notes, those notes were not made part of the record and,
therefore, were not available to the ALJ.
An ALJ determined that the claimant was injured by the effects of cumulative
work-related trauma . Convinced that he notified his employer shortly after he learned
from his physicians that his condition was work-related and that he filed a claim within
the requisite two-year period, the AU determined that notice and the claim were timely.
The claimant received temporary total disability benefits from the initial surgery through
the date that he was released to return to work with restrictions. Permanent income
benefits were based on a 27% impairment and enhanced due to his physical inability to
return to order filling.
First, the employer takes issue with a purported finding that the claimant's
symptoms "disappeared" after December, 2000. What the AU actually stated was that
the claimant's "back pain had disappeared" within a few days after he noticed it. The
finding is clearly supported by the claimant's hearing testimony, and there is no
evidence to the contrary . Therefore, the finding is not erroneous.
In a second argument, the employer asserts that the evidence compelled the ALJ
to find that the claimant sustained a specific injury in December, 2000, rather than a
cumulative trauma injury . It argues that the claimant's symptoms began with a single,
perceptible event in December, 2000, and worsened thereafter, indicating a single,
specific injury . In contrast, a cumulative trauma injury is characterized by a gradual
onset of symptoms .
Where medical causation is not obvious to the lay person, it must be shown by
expert medical testimony . Hill v. Sextet Mining Corp., 65 S .W .3d 503 (Ky. 2001);
Elizabethtown Sportswear v. Stice , 720 S.W.2d 732 (Ky. App. 1986) ; Men-gel v.
Hawaiian-Tropic Northeast & Central Distributors, Inc. , 618 S.W.2d 184 (Ky. App.
1981) . Contrary to the employer's assertion, its own expert, Dr. Kriss, noted that Dr.
Balthrop's and Dr. Markowitz's treatment notes contained no history of a specific
traumatic injury . Furthermore, he stated that the claimant's history was consistent with
progressive, degenerative changes rather than a single traumatic incident. Although Dr.
Kriss attributed the degenerative changes to natural events, Drs. Patrick and Johnson
attributed them to the effects of cumulative trauma in the claimant's work. Convinced
that the condition was due to work-related cumulative trauma, that a physician first
informed the claimant of that fact on July 26, 2001, and that he notified his employer
shortly thereafter, the ALJ determined that notice and the claim were timely.
KRS 342 .185 and KRS 342.190 require timely notice of a work-related
"accident," including "the nature and extent of the injury sustained ." KRS 342.0011(1)
defines the word "injury" as being a work-related traumatic event that is the proximate
cause producing a harmful change in the human organism. When no voluntary
payments have been made, KRS 342 .185 requires a claim to be filed within two years
of the "date of accident." In contrast, when an injury is caused by the cumulative effects
of repetitive trauma rather than by a single traumatic event, the notice and limitations
provisions are triggered when a physician informs the worker of the gradual injury and
its cause . Hill v. Sextet Mining Corp. , supra .
There is no evidence or argument that any physician based an opinion of
causation on an inaccurate history. Although the claimant stated that he noticed back
pain in December, 2000, and thought that he must have pulled a muscle, he did not
relate it to a particular work-related event or subsequently allege a December, 2000,
injury . Furthermore, no physician attributed his lumbar condition to a specific traumatic
event that occurred in December, 2000. The claimant alleged a cumulative trauma
injury, and the ALJ relied upon his experts when concluding that his injury resulted from
cumulative trauma due to the constant and repetitive lifting that his job required . The
findings regarding notice and limitations were based on the date when a physician
informed him that his hip and leg symptoms were caused by a work-related condition .
The findings were supported by substantial evidence under a correct interpretation of
the law and, therefore, were properly affirmed on appeal.
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
William Bryan Hubbard
Jonathan David Weber
Clark & Ward
333 W . Vine Street, Ste. 1100
Lexington, KY 40507
COUNSEL FOR APPELLEE:
McKinnley Morgan
Morgan, Madden, Brashear & Collins
921 South Main Street
London, KY 40741
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