LEXMARK v. OREDA BURNAM, HON. J. KEVIN KING, ALJ, AND WORKERS' COMPENSATION BOARD
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RENDERED:
October 3, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000875-WC
LEXMARK
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-00669
v.
OREDA BURNAM,
HON. J. KEVIN KING, ALJ, AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
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BEFORE:
BAKER, COMBS, AND SCHRODER, JUDGES.
BAKER, JUDGE.
Lexmark seeks review of a November 18, 2002,
order of the Workers’ Compensation Board (Board), affirming the
Administrative Law Judge’s (ALJ) decision of March 26, 2003,
awarding workers’ compensation benefits to the appellee, Oreda
Burnam.
We affirm.
The standard of review where the party with the burden
of proof was successful before the ALJ is whether substantial
evidence supported the ALJ’s conclusion.
Whittaker v. Rowland,
Ky., 998 S.W.2d 479, 481 (1999).
We further note that the
fact-finder, not the reviewing court, has sole discretion to
determine the quality, character, and substance of the evidence.
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
Burnam filed her workers’ compensation claim on May
13, 2002, based on a repetitive injury sustained while working
for Lexmark.
Kentucky Revised Statute (KRS) 342.185 states that
a claimant must file her claim within two years of the date of
injury.
The ALJ concluded that the statute of limitations began
to run on Burnam’s injury in June 2000.
Lexmark contends that
the Board erred by affirming the ALJ’s conclusion.
Burnam, who was hired at Lexmark in 1994, suffered
from 1995 to the present from various problems with her right
shoulder, right elbow, right forearm, right hand, right wrist
and left wrist.
The ALJ determined that her injury did not
manifest until a Dr. Gregory Snider diagnosed her with carpal
tunnel syndrome in June of 2000 and restricted the use of her
right hand.
Lexmark, however, maintains that the date of the
manifestation occurred on or prior to June 1999, when Dr. Snider
advised Burnam to avoid assembly work.
We are persuaded by the Board’s reasoning that the
statute of limitations on Burnam’s injury did not begin to run
until June 2000.
The Board stated:
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The date for the clocking of the statute of
limitations begins when the disabling injury
becomes manifest. Randall Co. v. Penland,
Ky. App., 770 S.W.2d 687 (1989). In Alcan
Foil [Products v. Huff, Ky., 2 S.W.3d 96
(1999)] . . . , the Kentucky Supreme Court
held the meaning of the phrase
‘manifestation of disability’ refers to the
physical symptoms that lead a worker to
discover that a work related ‘injury’ has
been sustained.
Board Opinion at 13.
Further, we agree with the Board and the ALJ
concerning Burnam’s understanding of Dr. Snider’s admonition in
1999 to quit assembly work.
The evidence suggests that Burnam
thought Dr. Snider told her to quit assembly work because of her
obesity, not because of some work-related injury.
While
Burnam’s testimony does evidence that she suspected her pain, at
least in part, was a result of her work at Lexmark, a worker is
not expected to self-diagnose.
Ky., 65 S.W.3d 908 (2001).
Hill v. Sextet Mining Corp.,
There was substantial evidence to
support the ALJ’s conclusion that Burnam did not know her injury
was caused by work until she was diagnosed with carpal tunnel
syndrome in June 2000.
Finally, Lexmark contends that the ALJ erred by not
making a determination as to whether Burnam’s condition had
worsened since May 13, 2000, the date she filed her claim.
Lexmark argues that if Burnam was aware that she had sustained a
work-related gradual injury prior to May 13, 2000, her claim is
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limited to any demonstrable worsening of the condition from May
14, 2000 until May 13, 2002.
998 S.W.2d 487 (1999).
See Special Fund v. Clark, Ky.,
Since we hold that Burnam was not aware
of her injury until after May 13, 2000, this issue is moot.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jo Alice Van Nagell
Clark & Ward
Lexington, Kentucky
L. Davis Bussey
Lexington, Kentucky
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