TREMCO, INC. v. SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; AND MAXINE HONEYCUTT
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RENDERED: MAY 12, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001345-WC
TREMCO, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKER’S COMPENSATION BOARD
ACTION NO. WC-97-01587
v.
SPECIAL FUND; HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; WORKERS’
COMPENSATION BOARD; AND MAXINE HONEYCUTT
APPELLEES
OPINION
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Tremco, Inc. petitions this Court to review an
opinion of the Kentucky Workers’ Compensation Board rendered on
May 14, 1999, which affirmed the Administrative Law Judge’s
award of 100% occupational disability to Maxine Honeycutt.
We
conclude that there was substantial evidence to support the ALJ’s
finding that Honeycutt’s claim was not barred by the limitations
set forth in KRS1 342.185 and that Honeycutt’s injury was work-
1
Kentucky Revised Statutes.
related, and affirm on these issues.
However, the ALJ and the
Board erred in determining the date of injury and that the law as
amended in December 1996 should apply, and we reverse on this
issue.
In 1991, Tremco, a manufacture of insulation tape for
thermo pane windows, employed Honeycutt as a swiggle operator on
its assembly line.
In 1994 and 1995, Honeycutt began to
experience episodes of lower back and hip pain that radiated to
both of her legs.
During that time, she sought treatment on a
number of occasions from her family practitioner, Dr. W. Scott
Black.2
Dr. Black originally diagnosed Honeycutt with a lumbar
strain and reported that her pain frequently subsided with minor
treatment.
In 1996, however, Honeycutt’s lower back pain began
to increase and became more constant.
1996, she underwent an MRI.
Finally, on December 4,
On January 7, 1997, Dr. Black
informed Honeycutt that she had a herniated disc and referred her
to Dr. Steven P. Kiefer, a board eligible neurosurgeon, for
further treatment.
On January 9, 1997, Dr. Kiefer examined Honeycutt and
opined that the predominance of her back pain implied that her
underlying degenerative disc disease was
role in her back pain.
playing a significant
As a result, Dr. Kiefer recommended
physical therapy, muscle relaxants, and anti-inflammatory
medication as a means to better control Honeycutt’s pain.
When
Honeycutt’s condition continued to worsen, Dr. Kiefer recommended
2
Dr. Black’s records indicate that he saw Honeycutt on
May 23, 1995, October 13, 1995, August 10, 1996, August 17, 1996,
and September 5, 1996.
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surgery.
On March 3, 1997, Honeycutt underwent surgery
consisting of a right L5 semi-hemilaminectomy with L5-S1
diskectomy.
After recuperating from surgery, Honeycutt returned
to work with restrictions on August 18, 1997.
The return of pain
in her hips and legs ultimately forced her to stop working again
on September 23, 1997.
Honeycutt has not worked since that time.
Meanwhile, on July 15, 1997, Honeycutt filed a workers’
compensation claim alleging an injury date of January 27, 1997.
Before a formal hearing was held, Honeycutt was examined by Dr.
James Templin.
After examining Honeycutt and reviewing her
medical history, Dr. Templin opined that Honeycutt’s disc
herniation was present in August 1996.
Based on Dr. Templin’s
opinion, Honeycutt moved the ALJ to amend her application for
adjustment of claim to reflect an injury date of August 10, 1996.
The ALJ granted Honeycutt’s motion to amend.
After a hearing,
the ALJ determined that (1) Honeycutt’s condition was workrelated, (2) she did not learn that her condition was workrelated until January 1997, (3) due and timely notice was given
to Tremco on February 3, 1997, (4) Honeycutt’s disc herniation
occurred in August 1996, and (5) Honeycutt suffers from a total
and permanent occupational disability.
After its motion for
reconsideration was denied, Tremco appealed the ALJ’s
determinations to the Board.
The Board affirmed the ALJ’s
opinion and award on May 17, 1999.3
This petition for review
followed.
3
Member Lovan dissented as to the date of the injury
being August 1996.
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In its first argument, Tremco contends that Honeycutt’s
claim for workers’ compensation is barred by the limitations set
forth in KRS 342.185.
KRS 342.185(1) provides that an injured
employee must give "notice of the accident . . . to the employer
as soon as practicable after the happening thereof . . . ."
In
addition, KRS 342.185(2) requires a claimant to file an
application for adjustment of claim for compensation within two
years after the suspension of voluntary income payments or within
two years of the date of the accident, whichever is later.
In
our efforts to decide the case sub judice, we must follow a line
of cases which have struggled to apply the notice and time
limitations set forth in KRS 342.185 to employees who suffer
injuries as a result of cumulative trauma, that have become known
as Haycraft4 type injuries.
The first case to address the issue was Randall Co. v.
Pendland.5
The employee in the Pendland case was a punch press
operator who suffered from degenerative arthritis and experienced
pain in her hands for several years before it progressed to a
point where she finally had to stop working.
In its attempt to
apply the two-year limitation in KRS 342.185 to an injury which
resulted from a long series of mini-traumas rather than one clear
accident, this Court concluded that "the date for giving notice
4
Haycraft v. Corhart Refractories Co., Ky., 544 S.W.2d
222 (1976).
5
Ky.App., 770 S.W.2d 687 (1989).
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and the date for clocking a statute of limitations begins when
the disabling reality of the injuries becomes manifest."6
As the Supreme Court of Kentucky recognized, this
Court in Pendland effectively adopted a rule of discovery to
govern the applicability of the notice and filing limitations for
Haycraft type injuries.7
In Coslow, the Supreme Court declined
to adopt a discovery rule for single trauma cases, explaining
that in "[j]urisdictions that follow the discovery rule do so on
the basis of language contained in their statutes of limitation
requiring a worker to file a claim within a certain period of
time from the `date of injury.’"8
In Kentucky, however, KRS
342.185 refers to the "date of the accident," not the “date of
injury.”
Thus, to adopt such a rule for single trauma cases
would require the Court to ignore the plain language of the
statute and the Court’s own precedent set in Fiorella v. Clark9,
and Goode v. Fleischmann Distilling Corp.10
In refusing to do
so, the Supreme Court also recognized that the Pendland case,
which departed from the "date of the accident" language in KRS
342.185, was a necessary exception because there was no single
accident from which to start the statute of limitations.11
6
Id. at 688.
7
Coslow v. General Electric Co., Ky., 877 S.W.2d 611,
613 (1994).
8
Id. at 613.
9
298 Ky. 817, 184 S.W.2d 208 (1944).
10
Ky., 275 S.W.2d 903 (1955).
11
Id.
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With the need for the Pendland exception established,
the next question the Supreme Court faced concerned the
determination of when the "manifestation of disability" occurred.
This issue was raised in Alcan Foil Products v. Huff12, and then
again in Special Fund v. Clark.13
The Supreme Court concluded
that the "manifestation of disability" referred "to physically
and/or occupationally disabling symptoms which lead the worker to
discover that a work-related injury has been sustained."14
In
other words, the disabling reality of the worker’s injury becomes
manifest and the clock begins to run for purposes of the notice
and time limitations set forth in KRS 342.185 when the worker
discovers both that an injury has been sustained and that the
injury is work-related.
Returning to the case sub judice, the record
establishes that Honeycutt was treated several times in 1994 and
1995 by Dr. Black for back and hip pain.
However, Honeycutt’s
symptoms seemed to subside with minor treatment and she continued
to work without restrictions.
When Honeycutt’s pain grew
increasingly worse in 1996, she underwent a MRI on her lower back
and was informed on January 7, 1997, by Dr. Black that she had a
herniated disc.
Dr. Black also advised Honeycutt at that time
that her condition was caused by her work activities.
Based on
the following, it is clear that the disabling reality of
Honeycutt’s injury did not become manifest until January 7,
12
Ky., 2 S.W.3d 96 (1999).
13
Ky., 998 S.W.2d 487 (1999).
14
Id. at 490.
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1997.15
Therefore, Honeycutt gave due and timely notice of her
injury to Tremco and her claim was timely filed within the two
year statute of limitations.16
Next, we turn to the issue of what law should be
applied to Honeycutt’s claim.
We begin with the general
proposition that the date of injury determines the law which
governs the rights of the claimant.17
The ALJ in the case sub
judice relied on Dr. Templin’s opinion in determining that
Honeycutt’s herniated disc occurred in August 1996.
Based on
this determination, the ALJ applied the version of the Kentucky
Workers’ Compensation Act prior to the December 1996 amendments
to Honeycutt’s claim.
While the MRI taken of Honeycutt on December 4, 1996,
clearly shows that she actually suffered from a herniated disc
prior to December 12, 1996, the effective date of the amendments
to the Act, the fact remains that she did not know of her injury
and she continued to work until January 1997.
As this Court in
Pendland concluded, there is no definite single time before a
disability has manifested itself at which the fact-finder could
determine that a compensable injury has occurred.18
Until the
disability manifested itself, Honeycutt had no claim for
disability benefits.
Having determined that the disabling
15
Pendland, supra.
16
KRS 342.185.
17
See Maggard v. International Harvester Co., Ky., 508
S.W.2d 777 (1974).
18
Pendland, supra at 688.
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reality of Honeycutt’s injury did not manifest itself until
January 1997, we conclude that Honeycutt’s claim is governed by
the new version of the Act, and the ALJ erred as a matter of law
in applying the prior version of the Act.19
Accordingly, the opinion of the Board affirming the
award made by the ALJ is affirmed in part and reversed in part,
and this matter is remanded to the ALJ for a determination of
Honeycutt’s benefits based upon the Act, as amended on December
12, 1996.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MAXINE
HONEYCUTT:
W. Barry Lewis
Hazard, KY
John E. Anderson
Barbourville, KY
BRIEF FOR SPECIAL FUND:
David W. Barr
Frankfort, KY
19
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685 (1992).
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