DONALD LEE SWIFT v. GATES RUBBER COMPANY; HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD
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RENDERED:
September 26, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-3284-WC
DONALD LEE SWIFT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO WC-91-25978
GATES RUBBER COMPANY;
HON. LLOYD R. EDENS,
ADMINISTRATIVE LAW JUDGE, AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, DYCHE and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Donald Lee Swift (Swift) appeals from a
decision of the Workers' Compensation Board (the Board) rendered
on November 8, 1996, affirming an opinion and award entered by
the administrative law judge (ALJ) on June 24, 1996.
On appeal,
Swift argues that both the ALJ and the Board erred in holding
that his claim was time-barred by the two-year statute of
limitations provided by Kentucky Revised Statutes (KRS) 342.185.
We affirm and adopt the Board's well-reasoned opinion as our own.
"Swift, age 46, has been employed by Gates
Rubber since March of 1969 primarily as a
mill operator in the manufacture of rubber
belts for automobiles. He testified that he initially felt pain
in his right elbow at work after picking up a metal skid on
October 25, 1990. Swift subsequently came under the care of Dr.
Charles Kincaid who diagnosed bilateral carpal tunnel syndrome.
Dr. Kincaid performed a right carpal tunnel release on Swift in
April of 1991 and a left carpal tunnel release in June of 1991.
Swift was off work after his first surgery until he returned to
work in September of 1991. Swift testified that his hands were
fine for a few weeks after returning to work; however, he then
began to have pain in his hands and arms which has kept getting
worse. Swift was examined by Dr. Morton Kasdan in March of 1992
but later came under the care of Dr. Tsu Min Tsai in 1992. Swift
continues to work for Gates Rubber but complains of loss of
strength in his right hand and pain in both hands on a regular
basis.
"Kathy Cottner, claims manager for Alexis,
Inc., the workers' compensation adjuster for
Gates Rubber, testified that an SF-3A was
filed with the Department of Workers' Claims
on September 16, 1991 showing that Swift had
returned to work with Gates Rubber and had
been paid temporary total disability ("TTD")
benefits from April 5, 1991 through September
15, 1991.
"In support of his claim, Swift introduced
into evidence the medical records of Dr.
Kincaid, a Form 107 and the records of Dr.
Tsai and a Form 107 prepared by his
orthopedic expert, Dr. James O. Hurt. The
Special Fund introduced a Form 107 prepared
by Dr. Valerie Waters. At the pre-hearing
conference, the parties identified the
contested issues as limitations, causation,
extent and duration and apportionment.
"After reviewing the evidence of record, the
ALJ decided against Swift on the issue of
statute of limitations without reaching a
determination on the other contested issues.
The ALJ noted that KRS 342.185 requires that
a claim be filed within two years after the
date of an injury or termination of TTD
benefits, whichever shall last occur. In
Randall Co. v. Pendland, Ky.App., 770 S.W.2d
687 (1989), the ALJ found that the Court held
that in the instance of mini-trauma, the date
for determining the statute of limitations
begins when the disabling reality of the
injury becomes manifest. In Swift's case,
the ALJ noted that Swift complained of pain
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in his extremities and his hands and had
undergone carpal tunnel surgeries in April
and June of 1991 and had been paid TTD
benefits through September 15, 1991.
"The ALJ noted Swift's argument that the
October 25, 1990 accident related solely to
the right elbow and that the carpal tunnel
condition had continued to worsen over time.
However, the ALJ found that the fact remained
that in April and June of 1991, Swift had
received carpal tunnel surgeries for which he
was paid TTD benefits through September 15,
1991. Based on the language in Pendland, it
was the ALJ's opinion that Swift's condition
manifested itself no later than the date of
his two bilateral carpal tunnel surgeries.
Payment of TTD benefits following the
surgeries extended the limitation period to
September 15, 1991; therefore, since Swift's
claim was not filed until January 24, 1994,
his claim was accordingly barred by KRS
342.185. The ALJ also cited in support of
his findings to Brockway v. Rockwell Int'l.,
Ky.App., 907 S.W.2d 166 (1995).
"On appeal, Swift argues that his case
concerns a claim for permanent partial
occupational disability benefits resulting
from a redevelopment of carpal tunnel
syndrome after he hade already undergone
successful carpal tunnel release surgery and
returned to regular duty. Swift contends his
claim does not concern the first or original
carpal tunnel syndrome and that the ALJ
failed to recognize this important fact.
Swift points to evidence that in October of
1991 after his return to work at Gates
Rubber, an EMG study performed by Dr. Thurman
showed no evidence of carpal tunnel syndrome
and the fact that Dr. Kincaid had released
Swift to return to regular duty without
restrictions. Swift then points to evidence
that in December of 1993, Swift began
treating with Dr. Tsai, at which time an EMG
study showed the recurrence of carpal tunnel
syndrome bilaterally. In essence, Swift
contends that his claim concerns a recurrence
of carpal tunnel syndrome in 1993 or a new
injury and that considering his application
was filed in January 1994, his claim is not
time-barred under the terms of KRS 342.185.
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Swift further points to Dr. Hurt's report as
clearly showing a recurrence of carpal tunnel
syndrome in 1993 and the doctor's opinion
that the repetitive work activity Swift
performed after returning to Gates Rubber
contributed to this recurrence. Under these
facts, Swift argues that Brockway and
Pendland show his claim is not barred by the
statute of limitations.
"Since Swift had the burden of proof on the
limitations issue and was unsuccessful in
persuading the ALJ that his claim for
benefits was timely filed, the question on
appeal is whether the evidence on the
limitations issue was so overwhelming as to
compel a finding in Swift's favor. Paramount
Foods, Inc. v. Burkhardt. Ky., 695 S.W.2d 418
(1985). In order to succeed on appeal, Swift
must show that the evidence was so persuasive
that it was clearly unreasonable for the ALJ
to find his claim was barred by the statute
of limitations. REO Mechanical v. Barnes,
Ky.App., 691 S.W.2d 224 (1985).
"A review of all of the evidence of record
shows that there was evidence of substance to
support the ALJ's determination on the
limitations issue and that the evidence as a
whole did not compel a finding that Swift's
claim was timely filed. Swift's initial
Application for Adjustment of Claim alleged
an injury to his right and left arms, hands
and elbows due to a gradual onset beginning
in October of 1990 continuing to the present.
Although Swift alleges that he returned to
work without restrictions and did not suffer
a recurrence of symptoms until 1993, the
records of Dr. Kincaid reveal that when
returning to work in September of 1991, Swift
continued to complain of problems in his
hands and Dr. Kincaid recommended return to
work with restrictions.1 Swift's own
testimony shows a change in his work duties
when he returned to work to accommodate his
condition.
1
In fact, our review of the record in this case shows that
Swift returned to work on September 16, 1991. Dr. Kincaid noted
in his records on October 10, 1991, that Swift was continuing to
have problems.
-4-
"Furthermore, although Swift claims that Dr.
Hurt specifically gave the opinion that he
had suffered a recurrence or new injury to
his hands, a review of Dr. Hurt's report does
not lead to this conclusion. To the
contrary, Dr. Hurt took a history of Swift
undergoing therapy after his bilateral carpal
tunnel surgeries and Hurt's advising that
this therapy had not helped him, and that he
had returned to work with restrictions with
continuing problems in both his hands and his
arms. Dr. Hurt's report also refers to a
report by Dr. Kasdan in March of 1992 at
which time Dr. Kasdan felt Swift was at
maximum medical improvement and was suffering
from permanent impairment due to residual
prolonged nerve conduction latencies in his
right hand.
"Swift's case is very similar to that of the
claimant in Brockway v. Rockwell Intern.,
supra. In that case, the claimant argued
that the date the statute of limitations
should have begun to run was the date of her
last day at work. The Court of Appeals
upheld the Board's affirmation of the ALJ's
decision that the claimant's claim was barred
by the statute of limitations because there
was credible proof establishing physiological
disability had manifested more than two years
prior to the date of filing her claim.
Credible proof included the claimant's own
testimony and the testimony of two physicians
who both treated her and examined her and
placed restrictions on her more than two
years before. Although there was evidence to
believe that claimant's continued working at
Rockwell may have added to her physiological
condition, the evidence in the Court's
opinion did not support that conclusion.
"Taken as a whole, the evidence in Swift's
claim leads to the reasonable conclusion that
his bilateral carpal tunnel syndrome was the
result of an initial work-related event in
October of 1990 for which he received TTD
benefits up to September 15, 1991, and that
he thereafter suffered no new injury or
recurrence of his condition. When more than
one reasonable inference can be drawn from
the evidence, the ALJ is free to choose which
inference to draw and this Board has no
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authority to second-guess his decision.
Jackson v. General Refractories Co., Ky., 581
S.W.2d 10 (1979).
"Accordingly, the Opinion and Award rendered
by Hon. Lloyd R. Edens, Administrative Law
Judge, is hereby AFFIRMED, and the appeal by
Donald L. Swift is hereby DISMISSED.
For the foregoing reasons, the opinion of the Board
entered on November 8, 1996, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, GATES
RUBBER COMPANY:
Ben T. Haydon, Jr.
Haydon & Abell
Bardstown, KY
Armer H. Mahan, Jr.
Lynch, Cox, Gilman & Mahan,
PSC
Louisville, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Louisville, KY
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