GAYLE M. HOLBROOK v. LEXMARK INTERNATIONAL GROUP, INC. LEXMARK INTERNATIONAL GROUP, INC. DIRECTOR OF SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 6, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003095-WC
GAYLE M. HOLBROOK
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-68293
LEXMARK INTERNATIONAL GROUP, INC.
(AS INSURED BY KEMPER);
LEXMARK INTERNATIONAL GROUP, INC.
(AS INSURED BY CNA); HON. RON CHRISTOPHER,
DIRECTOR OF SPECIAL FUND; AND
WORKERS’ COMPENSATION BOARD
AND
NO. 2000-CA-000089-WC
LEXMARK INTERNATIONAL GROUP, INC.
(AS INSURED BY KEMPER INSURANCE
COMPANY)
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
WC-97-68293
GAYLE M. HOLBROOK;
LEXMARK INTERNATIONAL GROUP, INC.
(AS INSURED BY CNA INSURANCE COMPANY);
HON. RON CHRISTOPHER, DIRECTOR OF
SPECIAL FUND; AND WORKERS’ COMPENSATION
BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This petition for review and cross-petition for
review stem from a workers’ compensation claim by Gayle Holbrook
for carpal tunnel syndrome which became manifest on February 15,
1995, after 31+ years of employment.
The ALJ held the last two
years of work caused some disability and made a partial award,
ruling the statute of limitations barred the rest.
The employee
appealed and Kemper cross-petitioned for being responsible for
the award and for contribution.
We opine that the issues are
factual and affirm.
Gayle M. Holbrook worked some 31+ years doing assembly
line work for IBM/Lexmark.
She started working on August 1,
1966, and first experienced symptoms in her hands in 1994.
She
went to her family doctor who diagnosed possible carpal tunnel
syndrome on December 2, 1994, and referred her to an orthopaedic
surgeon, Dr. Ritterbusch.
On December 6, 1994, Gayle advised
Lexmark that she was experiencing pain in both hands, wrists,
arms, and elbows.
Before seeing Dr. Ritterbusch, Gayle saw Dr.
Knox, a neurologist on December 22, 1994, who diagnosed carpal
tunnel syndrome.
Dr. Ritterbusch saw her on January 18, 1995,
February 15, 1995, and March 22, 1995.
On the first visit, he
discussed the effects of carpal tunnel surgery.
However, by the
third visit, March 22, after Gayle had been off three weeks due
to an unrelated problem, the problems had cleared up somewhat and
the doctor no longer recommended carpal tunnel surgery, but
permanently restricted work activities, and stated she would have
future flare-ups.
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Gayle returned to work on April 3, 1995, first on light
duty and then to her regular job on the assembly line.
She had
problems again with her hands and around November, 1995, went
back to light duty for three or four months.
She returned to her
regular assembly line position in early 1996, where she remained
until August 17, 1997.
On June 20, 1997, she first saw Dr. Allen concerning
her hands.
On July 11, 1997, Dr. Allen took her off work and
told her she needed the carpal tunnel surgery.
Gayle had surgery
on her left hand on October 1, 1997, and on the right hand on
December 5, 1997.
She was off work until April 3, 1998.
Instead
of returning to work on May 1, 1998, Gayle chose to retire.
While off work from July 11, 1997 to July 28, 1997, and
again from August 18, 1997 until April 30, 1998, Gayle received
Lexmark Sickness and Accident Disability Benefits, a salary
continuation program fully funded by her employer.
On June 8,
1998, Gayle filed her workers’ compensation claim.
The Administrative Law Judge found that in the case of
mini-traumas, the statute of limitations begins to run either on
the date the disability becomes manifest or on the last day of
work, whichever comes first.
The ALJ then found that Gayle began
experiencing symptoms in 1994 and received a diagnosis in 1994
along with medical advice to her employer to restrict her from
performing certain activities.
The ALJ then concluded the
statute of limitations started running no later than February 15,
1995.
As the claim was filed on June 9, 1998, the ALJ allowed
compensation for anything attributable to cumulative trauma
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occurring on or after June 10, 1996 (within the last two years).
Kemper Insurance provided coverage on August 17, 1997, the last
day Gayle worked, so the ALJ found this injury was the sole
liability of Kemper, and dismissed the Special Fund and CNA
Insurance.
The Board affirmed the ALJ, finding:
While not a frequent occurrence, we have
previously concluded, as did the ALJ in the
instant action, that in dealing with a
cumulative trauma claim, there may be two
distinct disability manifestation dates.
Here, the ALJ found based upon the evidence
presented that Holbrook had experienced
disability manifestation as early as February
or March of 1995. At that time, Holbrook was
aware that her condition was work-related,
she sought medical treatment which was paid
through workers’ compensation and, therefore,
is a workers’ claim benefit, and, as a result
of the condition, experienced at least two
periods of the alteration of her work
activities. This finding, we believe, is a
purely factual finding on the part of the ALJ
and, in order for Holbrook to prevail, she
must show that the evidence compelled a
contrary result. Special Fund vs. Francis,
Ky., 708 SW2d 641 (1986). Compelling
evidence is evidence that is so overwhelming
that no reasonable person could fail to be
persuaded by it. REO Mechanical vs. Barnes,
Ky. App., 691 SW2d 224 (1985).
As to the last two years being covered, the Board
found:
The ALJ then went on to conclude that because
Holbrook eventually returned to her identical
working activities and that there was
significant medical support from Drs.
Templin, Ritterbusch and several others that
this ongoing work increased her impairment
and constituted additional cumulative trauma
that there was a second disability
manifestation date, that being when she
finally ceased working.
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On appeal to this Court, Gayle first argues that the
last time her treating physician, Dr. Ritterbusch, saw her (March
22, 1995), he allowed her to return to work without the surgery
and he would have assessed a 0% impairment rating under the AMA
Guidelines.
Therefore, Gayle contends the ALJ abused her
discretion in finding that the disabling reality of the injury
manifested itself on February 15, 1995.
In this case, when the
carpal tunnel syndrome became manifest was an issue of fact for
the ALJ.
The function of this Court is not to re-assess the
evidence which has been reviewed by the Administrative Law Judge
and re-reviewed by the Workers’ Compensation Board.
This Court
can correct the Board only where the Board has overlooked or
misconstrued controlling statutes or precedent, or committed a
flagrant error in assessing the evidence.
Western Baptist
Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
In this case, the
Board has evaluated the medical evidence and the law applicable
to the issues raised and has determined that there was no
compelling evidence to reverse the ALJ.
We agree.
After
reviewing the record, we opine that the Board has not overlooked
or misconstrued controlling statutes or precedent or committed
error in assessing the evidence so flagrant as to cause this
Court to overrule the Board’s decision.
Next, Gayle argues that the ALJ misconstrued KRS
342.185(1) by reading in a requirement that income benefits must
begin within two years of the date of injury before they will
serve to extend the statute of limitations.
Gayle conveniently
ignores the Board’s opinion and finding of fact that:
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“Because
of the accommodations by Lexmark, she was able to continue
working and did not miss any time directly attributable to the
carpal tunnel condition until some two years later when she
finally elected to undergo the bilateral surgical releases.”
And
after reviewing the evidence, “[i]t appears that Holbrook did
receive salary continuation benefits up to April 30, 1998 for
time off due to various physical problems.
While she contends
that the salary continuation from July 11, 1997 to July 28, 1997,
and from August 25, 1997 to April 30, 1998 were in lieu of
temporary total disability benefits, these payments occurred
after the two year period had expired and cannot be utilized to
revive the period of limitations.”
The Board did not misconstrue
the statute; rather, Gayle misconstrued the findings of fact.
Under Western Baptist Hospital, 827 S.W.2d at 685, we see no
compelling evidence to disturb those findings.
Finally, Gayle contends that KRS 342.040(1), which
requires the commissioner to send a notice to prosecute letter to
only certain injured workers before their right to file a claim
is barred, is unconstitutionally arbitrary.1
Gayle had not been
sent a notice because she was in the class that was not required
to be given a notice.
If a notice was required, the absence of
such a notice would have the effect of tolling the statute of
1
CR 24.03 and KRS 418.075 require the party questioning the
constitutionality of a statute to serve the Attorney General with
a copy of the pleading so that it may intervene if it so desires.
Maney v. Mary Chiles Hosp., Ky., 785 S.W.2d 480 (1990). The
appellant’s brief is certified to show the petition was served on
the Attorney General, but there is no response in the record by
the Attorney General, nor did any of the appellees address the
constitutional issue.
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limitations.
Gayle contends that since the purpose of the notice
is to protect workers, all workers should get the notice.
Statutes carry a strong presumption of
constitutionality and courts must begin here when deciding
whether an act is unconstitutional.
Gurnee v. Lexington-Fayette
Urban County Government, Ky. App., 6 S.W.3d 852 (1999).
The one
seeking to have a statute declared unconstitutional bears the
burden of dispelling any conceivable basis which might justify
the legislation in order to overcome the strong presumption in
favor of the statute’s constitutionality.
Buford v.
Commonwealth, Ky. App., 942 S.W.2d 909 (1997).
KRS 342.040(1)
contains a requirement that the employer or insurance carrier
notify the commissioner, who in turn notifies the injured worker
or his/her dependent, of the right to prosecute a claim as a
result of the aforementioned injury.
The notice is required to
be given to all injured workers that have been off work at least
seven days and are therefore due TTD benefits, whereas all
injured workers not off at least seven days and therefore not
entitled to TTD benefits are not required to be given a notice.
Appellant argues this classification of injured workers is
arbitrary and unconstitutional.
In Leeco, Inc. v. Caudill, Ky.
App., 920 S.W.2d 88 (1996), our Court held that a classification
is not arbitrary if it is founded upon any substantial
distinction which suggests the necessity or propriety of such
legislation.
And in Commonwealth v. Howard, Ky., 969 S.W.2d 700
(1998), our Supreme Court held that a legislative classification
that does not infringe on a fundamental right or impact
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negatively on a suspect class is not subject to a courtroom factfinding process.
Underinclusiveness in a statute classification
alone does not make the legislative classification invalid.
First Bank & Trust Co. v. Board of Governors of Federal Reserve
System, 605 F. Supp. 555 (E.D. Ky. 1984).
To determine the
validity of a statute regarding an economic matter, which does
not involve a fundamental right, we use the “rational basis”
test, not a “strict scrutiny” test which is used when a statute
affects a fundamental right.
Vaughn v. Commonwealth,
Transportation Cabinet, Division of Driver’s Licensing, Ky. App.,
870 S.W.2d 231 (1993); Earthgrains v. Cranz, Ky. App., 999 S.W.2d
218 (1999).
Under the “rational basis” test, a classification
must be upheld if there is any reasonable conceivable state of
facts that could provide a rational basis for the classification.
Earthgrains, 999 S.W.2d at 218.
The statute in question requires that injured workers
be given a notice of their statute of limitations if their injury
was serious enough to be off work at least seven days.
That
appears to be a worthy cause and legitimate requirement
considering the purpose of the worker’s compensation statutes.
Not including less seriously injured workers, or deciding whether
seven days, two days, or ten days, etc. equates to less serious
injuries, is a legislative decision which has some rational
basis.
Therefore, we adjudge this statute constitutional.
In its cross-petition, Lexmark International Group,
Inc., as insured by Kemper, contends the ALJ erred in her
determination that Kemper is the responsible carrier and that the
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ALJ should have prorated Gayle’s occupational disability over her
work life.
Kemper agrees that Gayle worked for Lexmark for 54
days after Kemper came on the risk.
Since Kemper was the carrier
on the risk at the time of the second manifestation, or last day
of employment (both August 17, 1997), Kemper is responsible for
the award per KRS 342.340(1).
has two flaws.
Kemper’s request for contribution
First, it gives no legal authority for prorating
liability in the case of cumulative trauma, and secondly, it
ignores the findings of the ALJ that there was a second
manifestation or injury.
Applying the statute of limitations to
the first manifestation (or injury) barred recovery for anything
attributable to cumulative trauma occurring on or before June 19,
1996.
It would also have barred contribution for that period.
Kemper’s argument that Gayle suffered no additional
injury during the 54 days Kemper insured Lexmark also ignores the
conflicting medical evidence and the finding that between
June 19, 1996, and June 9, 1998, Gayle suffered an increased
impairment, and awarded benefits for the increase in impairment
only.
Again, this is a re-argument of the facts and under
Western Baptist Hospital, 827 S.W.2d at 685, we see no compelling
reason to reverse the ALJ.
For the foregoing reasons, we affirm the decision of
the Workers’ Compensation Board on the petition and crosspetition for review.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSSAPPELLEE, GAYLE M. HOLBROOK:
BRIEF FOR APPELLEE/CROSSAPPELLANT, LEXMARK
INTERNATIONAL GROUP, INC., AS
INSURED BY KEMPER INSURANCE
COMPANY:
Diana L. Beard
Lexington, Kentucky
Jo Alice Van Nagell
Lexington, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLEE, LEXMARK
INTERNATIONAL GROUP, INC., AS
INSURED BY CNA INSURANCE:
Steven R. Armstrong
P. Kevin Moore
Lexington, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLEE, SPECIAL FUND:
Joel D. Zakem
Frankfort, Kentucky
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