JANET SUE PATTON v. SQUARE D COMPANY; HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: MARCH 19, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-001956-WC
JANET SUE PATTON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-99333
SQUARE D COMPANY; HON. LLOYD R. EDENS,
ADMINISTRATIVE LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: JOHNSON, KNOPF, AND McANULTY, JUDGES.
McANULTY, JUDGE.
Janet Sue Patton petitions for review of an
opinion of the Workers’ Compensation Board that affirmed a
decision by the Administrative Law Judge awarding her permanent
partial disability benefits for injuries to her neck and left
shoulder based on an 18% functional impairment rating and a
permanent occupational disability rating of 27%, but denying any
benefits associated with a lower back condition because of the
two-year limitations period under Kentucky Revised Statutes
(KRS) 342.185.
We affirm.
In her petition for review, Patton argues that the ALJ
and Board erred in failing to award her permanent total
occupational disability benefits.
She contends that she
developed cumulative trauma to her lower back that manifested
itself at the earliest in 1998 and the statutory limitations
period was tolled by the payment of temporary total disability
benefits.
Alternatively, Patton maintains that the ALJ should
have considered her lower back condition as work-related,
combined it with her left shoulder and cervical injuries, and
found her permanently and totally disabled as a result of the
combination of all her injuries.
The duty of this Court is to correct the Board only
where it has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice.
Western Baptist Hospital
v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992); Whittaker v.
Rowland, Ky., 998 S.W.2d 479, 482 (1999).
After reviewing the
record, the law, and the arguments of counsel, we have concluded
that this Court could not improve on the well-written opinion of
the Board.
Inasmuch as we believe the Board adequately
addressed the issues, did not overlook or misconstrue
2
controlling precedent, and properly assessed the evidence, we
adopt the Board’s opinion as our own.
BEFORE: LOVAN, Chairman, STANLEY and
GARDNER, Members.
STANLEY, Member. Janet Sue Patton
("Patton") seeks review from a decision
rendered March 6, 2003, by Hon. Lloyd R.
Edens, Administrative Law Judge ("ALJ"),
awarding her benefits as a result of
injuries to her neck and shoulder sustained
on September 7, 1999, but dismissing her
claim for a low back injury on grounds of
limitations. On appeal, Patton argues she
is permanently and totally disabled as a
result of a low back condition that
developed over the course of her 26-year
employment with Square D Company ("Square
D"), in combination with the shoulder and
neck injuries found compensable by the ALJ.
Though Patton presents multiple, alternative
arguments in her brief before this Board,
her appeal essentially revolves around one
key point. Patton believes the judicial
bodies interpreting the Kentucky Workers’
Compensation Act have misinterpreted the
provisions put in place by the state
Legislature to compensate injured workers
for the effects of cumulative trauma in the
work place. We find no merit in these
various arguments and, accordingly, we
affirm.
Patton was born November 15, 1946, and
is a resident of Clay City, Powell County,
Kentucky. She completed school through the
ninth grade. She entered the employ of
Square D on May 7, 1973, as a press
operator. Patton testified that this was a
physically demanding job in which she would
operate half-ton and one-ton presses,
including setting up the die and hand
stacking the massive parts as they came off
the press.
3
On October 13, 1994, Patton reported
to the first aid office at Square D that she
was experiencing low back pain associated
with the physical demands of her work. A
Form 113 was completed to allow Patton to
receive medical treatment under Square D’s
workers’ compensation coverage. Though she
did not have any lost time from work at that
point, Patton explained that low back pain
limited her productivity by approximately
20%. Patton was sure the low back pain was
due to the heavy demands of her work, though
she denied seeking any medical treatment at
that time.
Patton first sought treatment for her
low back pain in 1998 from Dr. C.C. Smith, a
chiropractor. Patton saw Dr. Smith
frequently in the latter part of 1998,
sometimes as often as twice a week.
Treatment in Dr. Smith’s office consisted of
heat application, ultrasound, and trials of
various spinal manipulation tables. These
modalities provided only temporary relief.
Dr. Smith’s treatment was covered through
Patton’s major medical carrier and she was
required to make a co-payment with each
visit. Patton remained under Dr. Smith’s
care for approximately three to four months.
Dr. Smith subsequently referred Patton
to a neurologist, Dr. Christa Muckenhausen,
in Pikeville. Patton first treated with Dr.
Muckenhausen on March 24, 1999. Dr.
Muckenhausen recorded a host of physical
complaints, including neck pain radiating
into both shoulders and arms and low back
pain radiating into both legs. Patton
advised Dr. Muckenhausen that she had a
longstanding history of progressive pain,
which she apparently associated with her job
at Square D. Dr. Muckenhausen recorded the
physical demands of Patton's employment in
some detail. She also noted that, five to
six years before, Patton had been seen at
Clark County Hospital in Winchester and
advised she had a bulging disc in her back.
4
Around that same time, Patton was operating
a 1,000-pound press, which she did by
herself for four years. Dr. Muckenhausen
diagnosed chronic, diffuse osteoarthritis
involving the large joints, including the
shoulders, hips, and knees. She also
suspected rotator cuff impingement syndrome
due to “overuse working in heavy industry.”
Dr. Muckenhausen recommended a neurosurgical
consultation and a pain clinic assessment.
Patton began treating with a
neurosurgeon, Dr. John Gilbert, on April 19,
1999. Though his office notes were not
filed into evidence, Dr. Gilbert completed a
Form 107 dated October 8, 2001, indicating
he had seen Patton on numerous occasions for
complaints of pain in her neck, shoulder and
back. Dr. Gilbert made reference to a May
12, 2001, MRI showing disc protrusions at
C5-6 and C6-7 and degenerative disc disease
at L4-5 and L5-S1. Dr. Gilbert did not
perform surgery, however. Dr. Gilbert
diagnosed chronic cervical and lumbar
strains and nerve root injury, as well as
muscle spasm and aggravation of degenerative
disc disease. He assessed a 30% permanent
impairment rating, though he failed to
specify the conditions to which this rating
related. He recommended that Patton perform
no lifting over 20 pounds and no bending,
stooping, crawling, crouching, or operating
machinery. He also indicated that Patton
was not able to sit, stand, or walk more
than 30 minutes at a time.
Patton underwent a pain management
assessment by Dr. James Templin on May 11,
1999. Dr. Templin noted complaints of
chronic neck pain with radiation into the
right shoulder, arm, and hand, together with
low back pain with radiation into the right
hip and leg. Patton attributed these
symptoms to what Dr. Templin described as a
“work-related accident.” Dr. Templin
recorded the following specifics:
5
At the time of the accident, Ms.
Hughes [now Patton] was an employee
of Square D where she works as a
machine operator. She said she has
worked at Square D for some 25
years. Approximately nine years
ago, she bid into what was
considered a hard manual labor
position. She was running a 1000
ton press. Ms. Hughes’ husband had
died and she was very concerned over
her earning ability. She believes
positioning herself running this
equipment would enhance her earning
capabilities. While running the
machine, she is required to change
the dye [sic] and clamp the dye
[sic] into the appropriate position.
They would change the dye [sic]
approximately three times a day.
She is also required to handle each
metal box produced, i.e. that is
removing the finished product and
stacking same. The products weighed
anywhere from one pound to 25
pounds. Ms. Hughes said while she
was operating this machine, she was
pulling on a large bar attempting to
clamp the dye [sic] into place when
she felt a pulling pain in the lower
back. She reported the injury but
continued to work. She did not seek
medical attention. Ms. Hughes said
she was sure if she had seen a
physician she would have been taken
off work. She wanted to avoid this
since lost work was an important
element in the company in
determining advancement. Ms. Hughes
said, ‘Unfortunately, this back pain
slowly but progressively worsened.’
She continued to work until last
year at which time the pain had
reached the point where she felt she
needed to seek medical attention.
6
Patton also informed Dr. Templin that
she was missing approximately one day of
work per month due to her pain condition.
She expressed uncertainty as to how much
longer she would be able to continue
working, though she hoped to reach her
regular retirement in three years. At the
time of Dr. Templin’s evaluation, Patton was
operating a 500-pound press, producing
electrical boxes that weighed between one
and 25 pounds each. The machine produced
anywhere between 3,000 and 10,000 parts per
eight-hour shift, which Patton had to hand
stack. She was also required to set up the
dies at least three times per shift, which
involved utilizing two motor trucks and a
large, heavy wrench to bolt the dies into
place.
Dr. Templin diagnosed degenerative
disc disease, herniations, and chronic pain
syndrome in both the cervical and lumbar
spines, as well as chronic right shoulder
pain syndrome. He recommended EMG/NCV
studies to further evaluate the significance
of the multiple protrusions and bulges seen
on the cervical and lumbar MRI scans. The
electrodiagnostic studies performed on June
30, 1999, revealed no evidence of cervical
or lumbar radiculopathy. There was evidence
of moderate carpal tunnel syndrome on the
right side. On August 10, 1999, Dr. Templin
released Patton to return as needed. He
recommended that she pursue a home exercise
program and maintain a diet for weight
reduction. He also recommended that she
take extra strength Tylenol as needed for
pain control. Dr. Templin noted that Patton
expressed a continued desire to work until
she qualified for her regular retirement
benefits.
On September 7, 1999, Patton was
performing the regular duties of her job and
setting up a press when the 2 x 4 she was
using broke and caused her to fall
backwards. She had an immediate onset of
7
pain in her left shoulder and upper back and
neck areas. Patton was seen by Dr. James
Ritterbusch, who noted full and painless
range of motion of the cervical spine but
limited range of active motion of the left
shoulder. Suspecting rotator cuff
pathology, Dr. Ritterbusch ordered an MRI.
The MRI was conducted on September 27, 1999,
and showed a supraspinatus tear on the left
side. Dr. Ritterbusch recommended surgery.
Patton returned to work with her left
arm in a sling and sought a second opinion
from Dr. David Caborn, a sports medicine
specialist at the Kentucky Clinic. Dr.
Caborn saw Patton on November 3, 1999, and
diagnosed questionable AC joint arthritis in
addition to the rotator cuff tear seen on
MRI. In a follow-up office note of November
29, 1999, Dr. Caborn indicated that the bone
scan of Patton’s left shoulder showed
increased uptake at the AC and glenohumeral
joints. He recommended an AC joint
resection in addition to a rotator cuff
repair of the left shoulder.
Patton took off work on November 29,
1999, and has not returned to her employment
at Square D since. She underwent surgery on
her left shoulder on December 14, 1999,
which provided some limited relief and
improved range of motion. Patton continued
to have pain with external rotation,
however, as well as tenderness in her
shoulder, back, and neck.
In January of 2000, Patton was
referred to Dr. Paul Brooks for evaluation
of her neck and back pain. She was
eventually returned to Dr. Gilbert, who
apparently recommended cervical epidural
blocks and repeat MRI scanning. With a
repeat MRI scan showing protrusions at C5-6
and C6-7, Dr. Gilbert recommended surgery.
Patton did not submit to surgery on her
cervical spine, though she did undergo an
arthroscopy of the left shoulder on October
8
31, 2000, which showed her rotator cuff to
be intact.
Following the second surgery, Patton
underwent physical therapy, which she
testified helped tremendously.
Unfortunately, her condition never improved
to the point that she was able to return to
work. She drew temporary total disability
benefits through April 7, 2002. She was
denied early retirement benefits from Square
D, but applied for and is receiving Social
Security disability benefits.
Patton filed an Application for
Resolution of Injury Claim with the
Department of Workers’ Claims on April 15,
2002. At the time of her deposition on
August 10, 2002, Patton was still under the
care of Dr. Gilbert, who was prescribing her
pain medication. In addition to the records
and reports of Drs. Muckenhausen, Templin,
Gilbert, and Caborn, medical evidence
presented for the ALJ’s consideration
consisted of Forms 107 of Dr. O. M. Patrick,
Dr. Gregory Gleis, and Dr. Daniel Primm.
Dr. Patrick evaluated Patton on June
15, 2002, at the request of her attorney.
Patton reported to Dr. Patrick that she
injured her “neck, lower back and left
shoulder” in the work-related accident on
September 7, 1999. She advised Dr. Patrick
that she had experienced back pain before,
but had never been treated for it. Dr.
Patrick diagnosed a left rotator cuff tear,
shoulder impingement, and AC joint
arthritis; a herniated disc at C5-6; and
herniated discs at L3-4, L4-5, and L5-S1.
It was Dr. Patrick's opinion that Patton had
pre-existing degenerative changes that had
been aroused and brought into disabling
reality by the work injury at issue. He
assessed a 4% impairment due to the left
shoulder injury, a 10% lumbar impairment due
to disc herniations at three levels, and a
6% impairment to the cervical spine for the
9
herniation at C5-6. Dr. Patrick recommended
a broad range of restrictions that would
preclude Patton from returning to the type
of work performed at the time of injury.
Dr. Gleis evaluated Patton on May 30,
2001, at the request of Square D. Patton
complained of constant pain and reduced
range of motion in her left shoulder and
neck, as well as constant and severe pain in
her low back radiating down her right
posterior leg to her toes. Dr. Gleis
assessed an impairment rating for Patton’s
left shoulder of 9%, based on loss of range
of motion and left distal clavicle
resection. He assessed a 9% rating for
impairment of Patton’s cervical spine, which
he diagnosed as degenerative disc disease
aroused by the work-related injury of
September 7, 1999. He did not recommend
surgery for Patton’s cervical spine, as he
found no evidence on clinical examination of
cervical radiculopathy and also noted that
Patton reported no improvement with epidural
blocks.
With respect to Patton’s lumbar
spine, Dr. Gleis diagnosed low back pain
with degenerative disc disease and rightsided sciatica. He did not feel this
condition was in any way work-related and,
therefore, assessed no permanent impairment
as a result thereof. He recommended
restrictions related solely to Patton’s neck
and shoulder injuries.
Dr. Primm evaluated Patton on August
9, 2002, at the request of Square D. Dr.
Primm took a history of an onset of neck and
left shoulder pain following the work injury
of September 7, 1999. Patton advised that,
prior to the work injury, she had been
treated for chronic low back pain, which she
had experienced since 1994. Dr. Primm
indicated he did not examine Patton’s lumbar
spine because she did not relate her chronic
low back pain to the work-related injury of
10
September 7, 1999, which he believed was
further confirmed by her medical records.
Dr. Primm assessed a 0-5% impairment rating
for Patton’s cervical spine and a 2%
impairment rating due to loss of range of
motion of the left shoulder. He recommended
that she return to light duty work with
regular lifting of no more than 10-15 pounds
and occasional maximum lifting of 25 pounds.
He also recommended that she avoid constant
reaching or working with her arms above
shoulder level.
In addition to the medical reports
summarized above, the parties presented
evidence related to a psychiatric condition
alleged by Patton to have arisen out of her
work injury. The ALJ was not persuaded that
Patton had sustained any permanent
psychiatric impairment, however, and
dismissed that portion of her claim. The
ALJ’s determination in that regard is not at
issue in this appeal and, therefore, we will
forego a summary of the psychiatric proof.
Finally, Patton filed the report of
her vocational expert, Dr. Ralph Crystal,
who conducted an assessment on July 31,
2002. It was Dr. Crystal’s opinion that
Patton did not retain the ability to return
to the type of work she performed at Square
D. He felt that, prior to her work injury,
Patton had access to approximately 35% of
the jobs in the economy. If limited to
sedentary and light duty work, as would be
suggested by the restrictions of Drs.
Gilbert, Patrick, and Gleis, Patton would
qualify for less than 5% of the jobs in the
labor market. If he were to take the
restrictions recommended by Dr. Prince as
accurate, Dr. Crystal would have to conclude
that Patton is totally disabled from all
work. Dr. Crystal indicated that Patton
would have difficulty finding a job without
the assistance of a rehabilitation
professional. Overall, he provided a rather
11
bleak outlook for Patton's future
employability.
The opinions of Dr. Crystal
notwithstanding, it was the ALJ’s
determination that Patton is not permanently
and totally disabled. He issued an award of
permanent partial disability benefits based
upon an 18% permanent impairment rating, the
combined value of a 9% functional impairment
related to Patton’s cervical spine condition
and a 9% functional impairment related to
her left shoulder injury. The ALJ did not
award benefits for Patton’s low back
condition. On this issue, the ALJ held as
follows:
The first issue for
determination is limitations for
the low back condition. KRS
342.185(1) requires that an
application for adjustment of
claim be filed within two years of
the date of accident or suspension
of income payments, whichever is
later. The Plaintiff has alleged
that her low back condition is due
to cumulative trauma. In Alcan
Foil Products v. Huff, Ky., 2
S.W.3d 96 (1999), the Court
essentially held that the
manifestation date for the purpose
of calculating the running of
statute of limitations in a
cumulative trauma claim is the
date upon which the claimant has a
physically disabling injury and
knows that it is caused by work.
In Special Fund v. Clark, Ky., 998
S.W.2d 487 (1999), the Court held
that where a claim is not filed
until more than two years after
the claimant discovers he or she
has sustained an injury which is
caused by work, ‘. . . KRS 342.185
would operate to prohibit
compensation for whatever
12
occupational disability is
attributable to trauma incurred
more than two years preceding the
filing of the claim.’
On October 9, 1994, the
Plaintiff reported low back pain,
which she considered work-related,
as set forth in Exhibit 1 to her
deposition. Ms. Patton stated
that she had continuing back pain
following that date. She
testified that she ultimately saw
Dr. Smith in 1998 and Dr.
Muckenhausen in 1999. The
Plaintiff reported her injury on
October 9, 1994 and identified it
as work-related at that time. She
continued to experience pain after
that date and, therefore, I find
the manifestation date was October
9, 1994. Pursuant to the
aforementioned statute, it was
necessary for the Plaintiff’s
claim to be filed on or before
October 9, 1996. The Plaintiff’s
claim was filed on April 15, 2002.
In accordance with Special Fund v.
Clark, id., the Plaintiff would be
entitled to benefits for any
additional injury attributable to
work-related trauma occurring
within two years of the filing of
the claim. In this instance, the
period would be from April 15,
2000 until April 15, 2002;
however, the Plaintiff testified
that she last worked for the
Defendant/Employer on November 29,
1999. Therefore, her claim is
barred by KRS 342.185.
While, the Plaintiff
ultimately received temporary
total disability benefits
beginning November 28, 1999, the
payment began in excess of two
13
years following the manifestation
and, thus, beyond the statute of
limitations. Therefore, it would
not toll the statute or extent
[sic] it. Lawson v. Walmart
Stores, Inc., Ky. App., 56 S.W.3d
417 (2001). Additionally, the
proof in the claim would indicate
that the Plaintiff received
temporary total disability
benefits at that time due to her
cervical and left shoulder
injuries and not her lumbar
condition. In view of the
aforementioned manifestation date
of October 9, 1994, the fact that
the Plaintiff stopped working at
the Plaintiff's facility in excess
of two years prior to the filing
of her claim, I find her claim for
low back injury is barred by the
statute of limitations. Having
made that determination, the
Plaintiff shall be entitled to
benefits based on her left
shoulder and cervical injuries.
It is from the above language that Patton now
appeals.
On appeal, Patton presents several
alternative theories for the compensability
of her low back claim, though they each
involve the same basic finding of fact and
its necessary outcome. Essentially, Patton
is displeased with the ALJ’s finding that
her low back injury became manifest as of
October 9, 1994, more than two years prior
to the filing of her application.
Unfortunately for Patton, there is
substantial evidence to support this finding
by the ALJ. Moreover, the law, as set out
in the statute and applied by this Board and
the courts of this Commonwealth, obligate
the ALJ to dismiss a claim under this set of
facts.
14
Patton argues first that the evidence
establishes she developed degenerative disc
disease as a result of her employment and
that it was aroused into disabling reality
by the work-related incident of September 7,
1999. We find no evidence in the record to
support Patton’s contention that her work
was the cause of her degenerative disc
disease. Moreover, while the reports of
Drs. Gilbert and Patrick might have
supported a finding by the ALJ that a
portion of Patton’s low back impairment was
due to the work-related arousal of a preexisting, dormant condition on that date,
the evidence with regard to that theory was
conflicting, and such a finding was not
compelled thereby.
As Patton had the burden of proof and
risk of nonpersuasion with respect to the
threshold issue of causation, the question
before us is whether the evidence compelled
a result contrary to that reached by the
ALJ. Wolf Creek Collieries v. Crum, Ky.
App., 673 S.W.2d 735 (1984). Compelling
evidence is defined as evidence so
overwhelming that no reasonable person could
reach the same conclusion as the ALJ. Reo
Mechanical v. Barnes, Ky. App., 691 S.W.2d
224 (1985). It is not sufficient for Patton
merely to show there is some evidence that
would support a contrary conclusion. McCloud
v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46
(1974). As long as the ALJ’s opinion is
supported by any evidence of substance, it
cannot be said the evidence compels a
contrary result. Special Fund v. Francis,
Ky., 708 S.W.2d 641 (1986).
Patton’s commendably candid testimony
was that she had been experiencing low back
pain as early as October of 1994, and that
the problem had continued to plague her in
the years following that first report. She
further conceded that she was sure the
problem was work-related from the outset,
and described in detail the physical demands
15
of her work to which she attributed her low
back pain. Indeed, Patton had sufficient
conviction in the work-relatedness of her
condition to report the matter to Square D
and secure a Form 113 for purposes of
workers’ compensation coverage of her
medical treatment on October 13, 1994.
There is also evidence establishing that
Patton sought chiropractic treatment for her
low back pain in late 1998; sought the
services of a neurologist in March of 1999;
was seen on referral by a neurosurgeon in
April of 1999; and, was treated by a pain
management specialist in May of 1999. It is
clear from the office notes generated by
these various providers that Patton’s
complaints were associated with and
attributed to her work for Square D at that
time. Unfortunately, Patton did not file
her application for benefits until April of
2002, well over two years later.
The Supreme Court of Kentucky and the
Kentucky Court of Appeals have long
recognized the unusual nature of cumulative
trauma claims and the complexity such
conditions present in resolving the
preliminary date for the clocking of the
statute of limitations. Prior to 1999, it
was held that limitations began to run on a
cumulative trauma claim when the disabling
reality of the work injury became manifest.
Randall Co. v. Pendland, Ky. App., 770
S.W.2d 687 (1989). This longstanding
“manifestation of disability” standard was
effectively transformed into the seminal
Kentucky Supreme Court case of Alcan Foil
Products v. Huff, Ky., 2 S.W.3d 96 (1999).
In Alcan, supra, the court held that the
onset of “occupational disability” no longer
has any bearing on determining the date from
which the period of limitations begins to
run or on determining an injured worker's
obligation to give notice. In making this
determination, the court expressly stated as
follows:
16
In Pendland, the worker became
aware of her injury when she
experienced disabling symptoms of
pain; thus, the manifestation of
physical and occupational
disability occurred at the same
time. The question remains,
therefore, 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’ contained in
KRS 342.0011(1) refers to any workrelated 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. We also note that a
worker’s ability to perform his
usual occupation is not dispositive
of whether he has sustained an
17
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.
Since Alcan, supra, the law has been
that where a worker discovers that a
physically disabling injury has been
sustained, becomes aware that the injury is
caused by work, and fails to file a claim
within two years of that date, he will not
be protected by the tolling of the statute
of limitations. The Supreme Court
reaffirmed its position in Special Fund v.
Clark, Ky., 998 S.W.2d 487 (1999), holding
that the two-year statute of limitations
established in KRS 342.185 begins to run in
claims involving work-related cumulative
trauma when the worker discovers (1) the
fact that an injury has occurred, and (2)
the fact that it was caused by work.
The next declaration on the
limitations issue of significant weight in
the case sub judice was the Supreme Court’s
holding in Hill v. Sextet Mining, Ky., 65
S.W.3d 503 (2001). In Hill, supra, the
Court assigned special importance to the
date on which a claimant first acquires
knowledge that his work-related cumulative
trauma injury is permanent. Hill, supra,
involved a cumulative trauma injury claim
where the injured worker held a personal
belief for several years that a cervical
condition that had gradually developed over
time was in fact work-related. With regard
to notice and limitations, the Court held as
follows:
18
Implicit in the finding of a
gradual injury was a finding that
no one instance of workplace
trauma, including those
specifically alleged and those of
which the employer was notified,
caused an injury of appreciable
proportion. Instead, the ALJ
concluded that the harmful change
that gave rise to the claimant’s
permanent disability occurred
gradually and resulted, at least
to a significant extent, from the
effect of work-related wear and
tear during the course of his coal
mine employment. Medical causation
is a matter for the medical
experts and, therefore, the
claimant cannot be expected to
have self-diagnosed the cause of
the harmful change to his cervical
spine as being a gradual injury
versus a specific traumatic event.
He was not required to give notice
that he had sustained a workrelated gradual injury to his
spine until he was informed of
that fact. See Alcan Foil
Products v. Huff, Ky., 2 S.W.3d 96
(1999); Special Fund v. Clark,
Ky., 998 S.W.2d 487 (1999).
It is clear that the claimant
was aware of symptoms in his
cervical spine and associated the
periodic flare-up of symptoms with
his work long before being
evaluated by Dr. Gaw, and he also
sought medical treatment after
some specific incidents of
cervical trauma. Furthermore, it
is clear that the physicians who
treated the claimant’s symptoms
over the years had encouraged him
to quit working in the mines and
had told him that the work was too
19
stressful. Nonetheless, there is
no indication that any of them
ever informed him of his workrelated gradual injury, i.e., that
his work was gradually causing
harmful changes to his spine that
were permanent. Under those
circumstances, we are not
persuaded that the claimant was
required to self-diagnose the
cause of the cervical pain that
contributed to his inability to
work after February 11, 1998, as
being such an injury.
Hill, supra, at 5-6.
Although we believe Hill, supra, as
an extension of Alcan, supra, comprises the
general directive regarding how a claimant
typically must learn of the work-related
nature of a gradual injury before the clock
begins to run on notice and limitations, we
do not believe Hill, supra, is intended as
an absolute bright line rule for each and
every situation. Rather, depending on the
facts of an individual claim, there can be
exceptions. We believe the Supreme Court’s
decision in Evita Deramus v. S & S Produce,
et al., 2000-SC-1051-WC (rendered September
27, 2001 and ordered not to be published),
is representative of one such exception.
In Deramus, supra, the claimant began
experiencing symptoms due to repetitive
trauma at work in December 1995 or January
1996. Sometime in April 1996, she
complained to her supervisor of her
symptoms, but did not relate those problems
to her activities at work. Nevertheless,
her supervisor repeatedly advised her to
seek medical treatment. The claimant failed
to do so until June 1996, at which time a
physician first informed her that her
problems were caused by work. When crossexamined at the final hearing, the claimant
admitted she had attributed her symptoms to
20
her work activities all along. Based upon
these facts, the Supreme Court determined
that the claimant’s “manifestation of
disability” occurred earlier than the date
her personal credence regarding the workrelated cause of her condition was medically
confirmed. In so ruling, the Supreme Court
specifically stated as follows:
As the finder of fact, the ALJ is
authorized to determine from the
facts of a particular case the date
upon which the manifestation of
disability occurred. We have never
determined, as a matter of law,
that the manifestation of
disability must occur when a worker
first seeks medical treatment for
symptoms of a gradual injury.
Likewise, we have not required a
worker to self-diagnose a workrelated repetitive motion injury as
being the cause of disabling
symptoms simply because the
symptoms occur at work.
Nonetheless, where: 1.) work
requires constant repetitive
motions; 2.) while working, the
worker begins to experience
disabling symptoms in the portions
of her body that perform those
motions; 3.) the symptoms continue
even after she goes home for the
day; and 4.) they become
increasingly disabling over time,
it becomes apparent, even to a lay
person, that the work is likely to
have caused the injury.
Slip opinion at pp. 6-7.
At first glance, the divergence of
the holdings in Hill, supra, and Deramus,
supra, may appear conflicting, given the
similarities in the facts of each case. We
do not think so. Rather, we believe these
two cases, when read together, specify a
21
design by the Supreme Court to assign wideranging discretion to the ALJ, as the factfinder in cumulative trauma cases, in
determining the appropriate manifestation of
disability date given the facts of the
individual case, both as a matter of law and
equity. In the case sub judice, the ALJ
determined that Patton was aware that her
symptoms were associated with the strenuous
and repetitive nature of her work activities
at Square D as early as October of 1994 and
that her symptoms were ongoing and gradually
worsening over time, findings that would
support a dismissal under a Deramus
analysis.
Moreover, the evidence establishes
that Patton sought medical treatment and was
advised by Dr. Muckenhausen of the workrelated nature of her condition no later
than March of 1999, and then was so advised
again by Dr. Templin in May 1999. These
findings would equally support a dismissal
under Hill, supra.
While we appreciate Patton’s
disappointment, we would remind the parties
that this Board is not empowered to rewrite
the laws enacted by the Legislature and
interpreted by the Courts of Justice. In
recent years, and specifically during the
2000 regular session, the General Assembly
had before it a provision to modify the
Kentucky Revised Statutes that would have
begun the clocking of the statute of
limitations in cumulative trauma claims in a
manner similar to the clocking that now
exists in occupational disease claims.
However, that provision did not become law.
Moreover, we note that, even had the ALJ
determined that Patton’s disability did not
become manifest until she ceased working for
Square D on November 29, 1999, she still did
not file her application until more than two
years beyond that date.
22
The payment of temporary total
disability (“TTD”) benefits also does not
serve to salvage Patton’s claim in this
instance. As noted by the ALJ, TTD benefits
were not initiated until more than two years
after the 1994 date of manifestation and,
therefore, those payments would not serve to
toll the running of the statute. Lawson v.
Wal-Mart Stores, Inc., Ky. App., 56 S.W.3d
417 (2001).
Moreover, the ALJ found that the TTD
benefits initiated on November 28, 1999,
were paid in reference to Patton’s workrelated injury of September 7, 1999, a
finding supported by Patton’s testimony and
the medical records in evidence. Because
the ALJ determined that the work-related
injury on that date involved Patton’s left
shoulder and neck only, the benefits paid as
a result of that injury would not serve to
extend the time for Patton’s filing of a low
back claim.
Finally, Patton argues that, although
her low back claim is time-barred, it should
nonetheless have been considered in the
ALJ’s determination of extent and duration.
She submits that the evidence presents a
compelling case for permanent total
disability when her low back condition is
considered in combination with her cervical
and shoulder injuries.
In support of this argument, Patton
relies on Kern’s Bakery v. Tackett, Ky.
App., 964 S.W.2d 815 (1998) and TeledyneWirz v. Willhite, Ky. App., 710 S.W.2d 858
(1986).
In Teledyne-Wirz, supra, the Court of
Appeals affirmed the Workers’ Compensation
Board’s conclusion that Willhite was 100%
occupationally disabled, 50% of which was
the result of a prior, non-compensable
occupational disability. The employer and
the Special Fund were determined to be
23
liable for one-half of a lifetime award and
the remaining one-half of the disability
that existed prior to the injury went
uncompensated. On appeal, the Special Fund
and the employer argued that benefits should
be limited to 425 weeks since the injury in
question only resulted in a partial
disability. The Court ultimately determined
that the prior injury, though noncompensable, should nonetheless be
considered in the fact-finder’s
determination of whether the employee is
totally disabled, for purposes of computing
the duration of any award. The key factor,
of course, is whether the employee is found
to be totally disabled or only partially
disabled. Id. at 859. The holding in
Teledyne-Wirz, supra, is not applicable in
those instances where the fact-finder
determines that the claimant is only
partially disabled.
The Legislature statutorily overruled
Teledyne-Wirz, supra, as part of the 1994
amendments to the Act to the extent the
holding therein permitted the fact-finder to
consider pre-existing disability from non
work-related causes in determining the
extent and duration of the claimant’s
disability. With respect to disability
attributable to prior work-related causes,
however, Teledyne-Wirz, supra, remains
viable to this day. This is true even where
the prior work-related disability is noncompensable. Kern’s Bakery v. Tackett,
supra.
In the instant case, the ALJ properly
analyzed the evidence according to the
factors set out in Osborne v. Johnson, Ky.,
432 S.W.2d 800 (1968) and Ira A. Watson
Department Store v. Hamilton, Ky., 34 S.W.3d
48 (2000), and determined that Patton
remains capable of performing some type of
work on a regular and sustained basis. In
this analysis, the ALJ relied in part on the
report of Dr. Ralph Crystal, Patton’s
24
vocational expert. Dr. Crystal’s opinions
reflect the totality of Patton’s complaints
and the medical restrictions placed on her,
including those related to her low back
condition. Although the overall tenor of
Dr. Crystal’s report is that he considers
Patton’s chances of re-employment to be
modest, he nonetheless was able to identify
several jobs that she is mentally and
physically capable of performing in her
current state. While vocational expert
testimony does not take precedence over
other testimony of record, it nonetheless
constitutes substantial evidence. See Eaton
Axle Corp. v. Nally, Ky., 688 S.W.2d 334
(1985). As the determination of the ALJ
that Patton is only partially disabled is
supported by substantial evidence, we are
compelled to affirm the decision of the ALJ.
Special Fund v. Francis, Ky. 708 S.W.2d 641
(1986).
Accordingly, decision rendered March
6, 2003, by Hon. Lloyd R. Edens,
Administrative Law Judge, is hereby
AFFIRMED.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
McKinnley Morgan
Morgan, Madden, Brashear &
Collins
Hyden, Kentucky
BRIEF FOR APPELLEE SQUARE D
COMPANY:
Bennett Clark
Hoskins Law Offices PLLC
Lexington, Kentucky
25
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