HARLAN NURSING HOME v. KATHY OSBORNE; HON. LLOYD EDENS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: April 6, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000582-WC
HARLAN NURSING HOME
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-01665
KATHY OSBORNE;
HON. LLOYD EDENS, ADMINISTRATIVE
LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Harlan Nursing Home (Harlan) appeals from an
opinion of the Workers’ Compensation Board (the Board) entered
February 11, 2000, which affirmed an opinion, order and award of
Administrative Law Judge Lloyd R. Edens (the ALJ) dated August
30, 1999, which awarded workers’ compensation benefits to Kathy
Osborne (Osborne).
We affirm.
Osborne testified during the hearing before the ALJ
that she began working as a certified nurse’s assistant for
Harlan in April 1997.
She initially worked the third shift where
her duties included turning approximately forty patients four
times each night.
first shift.
Osborne later worked the second and then the
According to her testimony, her duties on the first
and second shifts were more extensive and required more heavy
lifting as these shifts occurred when the patients were awake.
Around October 1997 Osborne began experiencing problems
with pain and swelling in her hands and arms.
She was off work
pursuant to a doctor’s order from December 16 through December
22, 1997.
Her last day of work with Harlan was December 15,
1997.
Osborne testified that she saw Dr. A. Ahmad on or about
December 16, 1997.
Suspecting carpal tunnel syndrome, he took
her off work and referred her to Dr. Mohammad Bhatti (Dr.
Bhatti).
Everyone agrees that on or about December 16, 1997,
Osborne told Jennifer Howard (Howard), her supervisor at Harlan,
that she had been diagnosed with carpal tunnel syndrome.
Howard
made the following written statement on a payroll status report
dated December 29, 1997:
MD put Kathy off from 12-16-97 thru 12-22-97.
Kathy states due to carpal tunnel syndrome.
Off days were 12-23 & 12-24. I called Kathy
12-24-97 to inquire if MD had released her
back to work since she had not notified me on
12-22 or 12-23-97. Kathy stated MD had
released her back to work & assured me she
would return 12-25-97. She also stated that
she was going to quit & would be giving a two
week notice. . . .Kathy did not show up for
work 12-25-97, 12-26-97, & 12-27-97.
Therefore she is terminated.
Osborne underwent a right carpal tunnel release on July 20, 1998.
Osborne filed her claim for workers’ compensation
benefits on October 21, 1998.
The date of injury listed on the
-2-
form was December 20, 1997.
The cause of injury was “repetitive
activities, hands, fingers, wrist, arm.”
Osborne submitted medical records from Dr. Richard
Stoltzfus (Dr. Stoltzfus), Dr. Fayal Ahmad (Dr. Ahamd),1 and Dr.
James Templin (Dr. Templin).
According to office notes from Dr.
Stoltzfus dated July 1, 1998, Osborne complained of pain in both
arms, with the pain being greater on the right.
Dr. Stoltzfus
noted Osborne’s previously-diagnosed carpal tunnel syndrome and
indicated that he was referring her “to Dr. F. Ahmad for further
evaluation and treatment.”
In a letter dated September 1, 1998,
Dr. Stoltzfus noted Osborne’s continuing problems with her right
hand as well as pain in both hands, and stated that “she is
unable to work at her usual employment for an indefinite period
of time.”
Office notes from Dr. Ahmad indicate that she first saw
him on July 9, 1998.
Dr. Ahmad noted Osborne’s complaints of
numbness and weakness in both hands with the right being the most
problematic.
His review of previous nerve conduction studies
showed bilateral carpal tunnel syndrome.
Dr. Ahmad performed a
right carpal tunnel release on July 20, 1998.
Osborne was evaluated by Dr. Templin on September 28,
1998.
According to Dr. Templin’s Form 107, he diagnosed chronic
bilateral carpal tunnel syndrome, and indicated that
Osborne’s
condition was the “result of work-related activities performed
1
This is not the same Dr. Ahmad who saw Osborne in December
1997.
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while in the employment of Harlan Nursing Home.”
He gave an
impairment rating of 18%.
Harlan submitted medical records from Dr. Bhatti and
Dr. Ronald Burgess (Dr. Burgess).
Dr. Bhatti’s records indicate
that he first saw Osborne on January 15, 1998, for pain in her
left arm.
In his office notes of that date, he stated that
“[p]atient have [sic] exacerbation of these symptoms on lifting
heavy objects (part of patient’s job is transferring patients,
patient works as a CNA).”
Dr. Bhatti’s impression was:
1. Carpal tunnel syndrome, possibly
secondary to impingement on the nerve by
arthritic changes in the wrist (compression
on the flexor retinaculum).
2. Cervical root compression in the
distribution of C6-C7 is less likely since
patient does not have any complaints of pain
in the neck and shoulder region (patient have
[sic] subtle decrease sensation over left
deltoid and upper shoulder region).
Dr. Bhatti saw Osborne again on February 17, 1998, after
completion of nerve conduction studies.
Based on the studies,
Dr. Bhatti diagnosed:
Moderate compression of median nerve on the
right and mild to moderate compression in the
left median nerve consistent with bilateral
carpal tunnel, moderate to severe degree.
Dr. Bhatti recommended surgical evaluation for possible
decompression.
Osborne was evaluated by Dr. Burgess on March 18, 1999.
Although Dr. Burgess indicated in his report that he suspected
symptom magnification, he diagnosed “left moderate carpal tunnel
syndrome and a Grade III sensory deficit of the right median
-4-
nerve following right carpal tunnel release,” and gave an
impairment rating of 17%.
Dr. Burgess also stated:
The patient’s activities at the Nursing Home
which were intermittent use of the hands are
not considered a normal repetitive motion job
associated with entrapment neuropathies.
In an opinion, award and order dated August 30, 1999,
the ALJ awarded Osborne benefits based on a 17% functional
impairment rating.
In regard to the issues of causation and
notice, the ALJ stated:
The Petitioner testified concerning the onset
of symptoms associated with her work. Her
history is reflected in the report of Dr.
Bhatti . . . and in the opinion of Dr.
Templin. I am, therefore, persuaded by the
Petitioner’s description of her work, as well
as the opinion of these physicians, that the
Petitioner’s injury was the result of workrelated traumatic events, which arose out of
and in the course of her employment.
Accordingly, I find her carpal tunnel
syndrome was an injury as determined by the
aforementioned statute.
The Petitioner testified that she informed
Ms. Howard of her [diagnosis] by Dr. Ahmad.
Ms. Howard testified that she became aware of
the Petitioner’s condition when she was
informed on December 15, 1997. I am,
therefore, persuaded by the testimony of the
Petitioner that the Respondent/Employer
received timely notice of the Petitioner’s
work-related injury.
In an order on petition for reconsideration dated October 5,
1999, the ALJ stated:
The basis for reconsideration is the position
of the Employer that the decision does not
reflect that it had notice that the
Petitioner’s carpal tunnel syndrome was workrelated . . . . The December 29, 1997 status
-5-
report completed by Ms. Howard states that
the Petitioner’s physician had taken her off
work due to carpal tunnel syndrome. I am of
the opinion this was sufficient notice to
apprise the Employer of a potential workrelated claim.
On appeal to the Board, Harlan argued that the evidence
conclusively showed that Osborne failed to give notice that she
was claiming her carpal tunnel syndrom was work-related.
In an
opinion entered February 11, 2000, the Board affirmed the ALJ,
stating:
We believe that there is substantial evidence
supporting the ALJ’s finding of due and
timely notice. We note that Osborne
testified that she spoke with Howard on two
occasions regarding her condition. Neither
Osborne, nor Howard, were asked specifically
about the content of these communications,
but Osborne did state that she notified
Howard about the problems with her hands.
Certainly, more probing questions could have
been asked regarding what Osborne actually
told Howard about her condition. We believe,
however, that it was not unreasonable for the
ALJ to infer from Osborne’s testimony that
she had informed Howard of Dr. Ahmad’s
opinion that her carpal tunnel syndrome was
work-related.2
This appeal followed.
The sole question before us is whether Osborne met her
burden of showing that she gave due and timely notice that she
had sustained a work-related injury.
Harlan claims that Osborne
failed to satisfy her burden of proof because she failed to
inform Harlan that her carpal tunnel syndrome was work-related
2
It is obvious that the Board erred in stating that Dr.
Ahamd’s opinion was that Osborne’s carpal tunnel syndrome was
work-related as he never offered an opinion in regard to
causation. However, that mistake, in and of itself, does not
require reversal
-6-
until she filed her Form 101 some eleven months after her last
day of work.
We disagree.
“[C]laims for a gradual occupational injury due to
cumulative trauma . . . are subject to the [notice] requirements
of KRS 342.185.”
100 (1999).
Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96,
Pursuant to that statute, a claimant must give
“notice of the accident” to her employer “as soon as practicable
after the happening thereof.”
KRS 342.185(1).
Under KRS
342.200, “[w]ant . . . or delay in giving notice shall not be a
bar to proceedings under this chapter if it is shown that . . .
the delay or failure to give notice was occasioned by mistake or
other reasonable cause.”
The question was to whether notice has
been given “as soon as practicable” is to be made based on the
facts of the particular case.
Newburg v. Sleets, Ky. App., 899
S.W.2d 495, 497 (1995).
It is undisputed that Osborne told Howard she had been
diagnosed with carpal tunnel syndrome in December 1997.
A review
of the medical evidence presented shows that no doctor attributed
Osborne’s carpal tunnel syndrome to her work activities until Dr.
Templin did so in his Form 107 dated September 28, 1998.
Osborne
filed her Form 101 on October 21, 1998, less than one month after
Dr. Templin issued his opinion.
Based on the foregoing, we find
that Osborne’s delay in giving notice of the work-relatedness of
her condition was reasonable.
We are at a loss to explain how
Harlan expected Osborne to tell Howard that her condition was
work-related, much less produce evidence of work-relatedness in
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December 1997, when the medical opinion of Dr. Templin
establishing causation was not given until September 1998.
Having considered the parties’ argument on appeal, the
opinion of the Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, KATHY
OSBORNE:
William A. Rice
Harlan, KY
Timothy J. Wilson
Lexington, KY
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