WILMA LEE COMBS v. MID-SOUTH ELECTRONICS, INC.; HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 5, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000150-WC
WILMA LEE COMBS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-00740
v.
MID-SOUTH ELECTRONICS, INC.;
HON. ROGER D. RIGGS, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BAKER, GUIDUGLI AND PAISLEY, JUDGES.
PAISLEY, JUDGE.
This is an appeal from a decision of the
Workers’ Compensation Board which reversed an administrative law
judge’s finding that appellant’s disability became manifest in
2000.
The board instead found that the disability manifested in
1998, with the result that appellant’s claim was substantially
time-barred.
For the following reasons, we reverse and remand.
In 1993, appellant began working for appellee as an
assembly line worker, which required that she perform various
repetitive tasks on a daily basis.
That same year, appellant
sustained an injury to her right wrist that both she and
appellee’s company doctor attributed to her work.
Thereafter,
appellant began experiencing chronic problems associated with
her right wrist, arm, and shoulder, for which she continued to
see the company doctor on a regular basis.
Though appellant’s
pain and discomfort continued, she experienced no significant
changes in her condition until June 1998, when she felt as
though her shoulder was “going out” while using a paint gun at
work.
In October 1998, appellant began seeing Dr. Walter
Downey, who diagnosed her with bursitis of the right shoulder
and advised her to engage in only light duty activities at work.
Although appellant was in constant pain, she continued to work
until June 2000, when she developed severe headaches and neck
pain in addition to her other symptoms.
Based upon the advice
of yet another doctor, appellant took a period of leave from
work.
She returned in October 2000, but because of her
increasing bouts with pain, she permanently ceased working for
appellee on October 11, 2000.
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Appellant continued to see various physicians
including Dr. John Gilbert, a neurosurgeon, who examined her in
August 2000.
Based on this examination and the results of a
prior MRI, Gilbert diagnosed appellant as having cervical
strain, aggravation of cervical kyophosis, cervical nerve root
injury syndrome, cervical muscle spasms, numbness, tingling and
neck pain.
Gilbert also concluded that appellant’s condition
resulted from her employment with appellee, and he assigned her
a 22% impairment rating.
Appellant filed her application for resolution of
injury claim on June 6, 2001.
Although the ALJ initially
awarded appellant temporary total benefits upon finding that she
“suffers from permanent impairment as a result of her repetitive
work activities,” the board partially vacated and remanded that
decision with directions that the ALJ determine the date of
appellant’s manifestation of disability.
The ALJ subsequently
found that appellant’s disability manifested itself in June
2000.
Once again, however, the board reversed the ALJ, finding
instead that appellant’s disability manifested itself in 1998,
with the result that it was substantially time-barred.
This
appeal followed.
There is no dispute that appellant’s injuries amount
to a compensable work-related disability if her claim was filed
within the applicable two-year statute of limitations provided
-3-
by KRS 342.185.
In dealing with a work-related disability that
has arisen as a result of cumulative trauma, a determination of
the manifestation of disability date is critical.
Manifestation
of disability is defined as the “manifestation of physically
and/or occupationally disabling symptoms that lead a worker to
learn that she has sustained a work-related injury.”
Holbrook
v. Lexmark International Group, Inc., Ky., 65 S.W.3d 908, 911
(2001) (citing Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96
(1999)).
See also Special Fund v. Clark, Ky., 998 S.W.2d 487,
490 (1999).
“Thus, the notice and limitations provisions for a
gradual injury are triggered when the worker becomes aware of a
gradual injury and knows that it was caused by work.”
Holbrook,
65 S.W.3d at 911.
Appellant admits that any claim pertaining to her
right wrist, arm, and shoulder is barred by the statute of
limitations, as it has been more than two years since her
injuries to those extremities became apparent and were
acknowledged by her as being work related.
However, appellant
argues that the statute of limitations does not bar her claim
relating to her cervical injuries, because she was unaware of
any injury to her cervical area until June of 2000, when she
began experiencing new symptoms which included intense headaches
and severe neck pain.
-4-
We first note that on review, an ALJ’s findings will
not be disturbed unless the board determines that they were
clearly erroneous after concluding that the evidence was so
overwhelming that it compelled a different result.
Eck Miller
Transportation Corporation v. Wagers, Ky. App., 833 S.W.2d 854,
858 (1992).
KRS 342.285(2) mandates that the “board shall not
substitute its judgment for that of the administrative law judge
as to the weight of evidence on questions of fact.”
Here, the board reversed the ALJ’s opinion and order
because it concluded that the ALJ utilized the wrong standard to
determine the manifestation of disability date.
Based on its
own application of the correct standard as set forth in Alcan,
supra, the board found that appellant’s disability became
manifest no later than 1998 because at that time she was fully
aware that the injuries to her right upper extremities were
work-related.
We disagree.
It is clear from the ALJ’s opinion and order dated
August 2, 2002, that the ALJ was fully aware of the correct
standard.
The ALJ cited Alcan, as well as Holbrook, which
recently added further clarification to the method for
determining the date upon which a gradual disability becomes
manifest.
The ALJ specifically stated that
[t]he Supreme Court refined the definition
of “manifestation” in [Holbrook] wherein it
stated that with a “gradual” injury notice
-5-
and limitations are triggered when (1) the
worker becomes aware of a gradual injury and
(2) the worker knows that it was caused by
work.
Using this standard, the ALJ based his findings upon substantial
evidence which was presented by appellant to prove the
timeliness of her claim for compensation of her cervical
injuries.
More specifically, the record reflects that appellant
did not complain to her doctors about neck pain until 2000, and
she was not diagnosed with a gradual work-related cervical
injury until August 2000.
Prior to that time, appellant’s only
diagnosis was chronic bursitis, which was benign in comparison
to the later cervical injury.
Simply stated, the record
reflects that appellant believed that she suffered from chronic
bursitis of her arm, wrist and shoulder caused by work.
There
is, however, no evidence that either she or her many doctors had
any earlier indication that she was suffering from a progressive
work-related cervical injury.
Certainly, appellant was not
required to engage in self-diagnosis.
Hill v. Sextet Mining
Corporation, Ky., 65 S.W.3d 503, 507 (2001).
Therefore,
substantial evidence supported the ALJ’s conclusion that
although appellant knew of the injuries to her right upper
extremities, she had no reason to know that she had suffered a
cervical injury until she began experiencing new and different
symptoms in June 2000.
-6-
As we believe that the ALJ used the correct standard
in reaching his findings, and that those findings were supported
by substantial evidence, the board’s decision is reversed and
this matter is remanded with directions that the board reinstate
the opinion and order of the ALJ.
ALL CONCUR.
BRIEF FOR APPELLANT:
McKinnley Morgan
Hyden, Kentucky
BRIEF FOR APPELLEE, Mid-South
Electronics, Inc.:
Scott C. Marks
Bowling Green, Kentucky
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