EVITA DERAMUS v. S & S PRODUCE; SPECIAL FUND; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: November 3, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: November 17, 2000; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000959-WC
EVITA DERAMUS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-01130
S & S PRODUCE; SPECIAL FUND;
HON. JAMES L. KERR, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Evita Deramus petitions for review of a
decision of the Workers’ Compensation Board which affirmed the
Administrative Law Judge’s denial of benefits for carpal tunnel
syndrome on the grounds that Evita had not filed the claim within
two years of when the injury became manifest.
Finding no
overlooked or misconstrued controlling statutes or precedent, or
any flagrant error in assessing the evidence, we affirm.
Evita Deramus began working for S & S Produce in
January of 1995.
She alleged an injury date of June 28, 1996,
the first day she missed work as a result of the carpal tunnel
syndrome and the date she was first told by a physician that she
had a medical condition related to work.
She last worked June
23, 1997, and filed a claim on June 24, 1998.
Evita worked as a
tomato packer which required repetitive use of her upper
extremities including lifting boxes.
The claim was presented as
one developing based upon the repetitive nature of her work.
However, some six months prior to June of 1996, she was lifting a
pallet and, while jerking it, she felt a tingling sensation in
her shoulder.
It continued to tingle throughout the day but it
did not cause severe pain.
Subsequently, there would be days
where she had difficulty lifting boxes and also would find an
increase in tingling when she raised her hands over her head.
Approximately six weeks prior to June of 1996, her supervisor
noticed that she was having difficulty using both of her upper
extremities and several times thereafter recommended that she go
see a physician.
However, it was not until shortly before
June 28 when she dropped a pot of water at home due to the
weakness in her arm that she became sufficiently concerned and
finally sought medical treatment.
The issue before the ALJ was when the disabling reality
of her injury became manifest, the date she developed symptoms or
the date she received medical treatment.
The ALJ relied on Alcan
Foil Products v. Huff, Ky., 2 S.W.3d 96 (1999), for the
proposition that the worker’s ability to perform his usual
occupation is not dispositive of whether he or she has sustained
an occupational disability.
The ALJ then found:
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In plaintiff’s factual situation, she became
aware of her work-related injury by
experiencing symptoms in December of 1995 or
January 1996 which included the inability to
use her right arm effectively and the
necessity of requesting assistance from coworkers. In fact, plaintiff discussed her
situation with her supervisor at least six
weeks prior to June 1996. (see page 32 of
plaintiff’s deposition). Thus, it appears to
the undersigned that plaintiff’s injury
manifested itself by at least April of 1996
and plaintiff’s failure to file her workers’
compensation claim until June 24, 1998 bars
her recovery.
The Court in Huff, 2 S.W.3d at 96, dealt with workers
who argued that they were not occupationally disabled until
shortly before their claims were filed because they were able to
work and because no limitations, restrictions, etc., were imposed
by the doctor and they kept working.
They acknowledged a hearing
loss but argued that they didn’t have a claim until the condition
became occupationally disabling.
The Court cited Randall Co. v.
Pendland, Ky. App., 770 S.W.2d 687, 688 (1988), for the
proposition that “where the injury is the result of many minitraumas, the date for giving notice and the date for clocking a
statute of limitations begins when the disabling reality of the
injuries becomes manifest.”
Huff, 2 S.W.3d at 101.
The Huff
Court then stated:
whether the phrase ‘manifestation of
disability’ refers to the physical disability
or symptoms which cause a worker to discover
that an injury has been sustained or whether
it refers to the occupational disability due
to the injury. We conclude that it refers to
the worker’s discovery that an injury had
been sustained. We arrive at this conclusion
for several reasons: 1.) the court’s
explicit statement that the period of
limitations runs from the date of “injury;”
2.) the fact that the definition of “injury”
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contained in KRS 342.0011(1) refers to any
work-related harmful change in the human
organism, and does not consider whether the
change is occupationally disabling; and 3.)
the entitlement to workers’ compensation
benefits begins when a work-related injury is
sustained, regardless of whether the injury
is occupationally disabling. Nothing in
Pendland indicates that the period of
limitations should be tolled in instances
where a worker discovers that a physically
disabling injury has been sustained, knows it
is caused by work, and fails to file a claim
until more than two years thereafter simply
because he is able to continue performing the
same work. [footnote omitted]. We also note
that a worker’s ability to perform his usual
occupation is not dispositive of whether he
has sustained an occupational disability.
Wells v. Bunch, Ky., 692 S.W.2d 806 (1985);
Osborne v. Johnson, Ky., 432 S.W.2d 800
(1968). Contrary to the view expressed by
the Board and the Court of Appeals, a worker
is not required to undertake less demanding
work responsibilities or to quit working
entirely in order to establish an
occupational disability.
Id. at 101.
Under Huff, 2 S.W.3d at 96, the statute of limitations
begins to run at the time of “manifestation of disability,” an
issue of law.
Whether a worker discovers a physical injury has
been sustained, and knows that it was caused by work, is an issue
of fact.
The ALJ, as fact-finder, has the sole authority to
determine the weight, credibility, substance, and inferences to
be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt,
Ky., 695 S.W.2d 418 (1985).
Where the evidence is conflicting,
the ALJ may choose whom and what to believe.
Brothers, Ky., 547 S.W.2d 123 (1977).
Pruitt v. Bugg
The ALJ may choose to
believe parts of the evidence and disbelieve other parts, even
when it comes from the same witness or the same party’s total
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proof.
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15
(1977).
In Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685 (1992), our Supreme Court set the standard of review as:
“[t]he WCB is suppose to decide whether the evidence is
sufficient to support a particular finding made by the ALJ, or
whether such evidence as there was before the ALJ should be
viewed as uncontradicted and compelling a different result.”
at 687.
Id.
In further review before the Court of Appeals,
[t]he WCB is entitled to the same deference
for its appellate decisions as we intend when
we exercise discretionary review of Kentucky
Court of Appeals decisions in cases that
originate in circuit court. The function of
further review of the WCB in the Court of
Appeals is to correct the Board only where
the Court perceives 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.
Id. at 687-688.
The issue on appeal in this case relates to a finding
of fact.
In our review of the record, we find no compelling
evidence in favor of Evita.
This evidence is not so overwhelming
as to compel a finding in her favor.
S.W.2d at 418.
Paramount Foods, Inc., 695
Compelling evidence has been defined as evidence
so persuasive that it was clearly unreasonable for the ALJ not to
be convinced by it.
Hudson v. Owens, Ky., 439 S.W.2d 565 (1969).
We must also be mindful that it is not enough for Evita to show
that the record contains some evidence which might support a
reversal of the ALJ’s decision.
Ky., 514 S.W.2d 46 (1974).
McCloud v. Beth-Elkhorn Corp.,
As long as the ALJ’s determination is
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supported by any evidence of substance, it cannot be said that
the evidence compels a different result.
Special Fund v.
Francis, Ky., 708 S.W.2d 641 (1986).
For the foregoing reasons, we opine that neither the
Board nor the ALJ overlooked or misconstrued controlling statutes
or precedent, and neither made any flagrant errors in assessing
the evidence; therefore, we affirm.
BUCKINGHAM, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, S & S
PRODUCE:
Wayne C. Daub
Louisville, Kentucky
Brian T. Gannon
Louisville, Kentucky
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Frankfort, Kentucky
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