WAL-MART v. STEPHEN PETERS; and HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
FEBRUARY 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002047-WC
WAL-MART
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-01410
STEPHEN PETERS; and
HON. SHEILA C. LOWTHER,
CHIEF ADMINISTRATIVE LAW JUDGE; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Appellant Wal-Mart has petitioned for
review of an opinion of the Workers’ Compensation Board (Board)
entered on September 3, 2004, which affirmed a decision of the
Chief Administrative Law Judge (CALJ) rendered on April 2, 2004,
that awarded permanent partial disability benefits to Stephen
1
Senior Judge John D. Miller sitting a Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Peters (Peters) for a cumulative trauma injury to his back.
We
affirm.
Peters, born June 7, 1965, worked as an order filler
at the Wal-Mart Grocery Distribution Center in London, Kentucky
from 1997 to 1998 and again from January 3, 2000, through
September 15, 2001.
week.
He worked three eleven-hour shifts per
His position required retrieving boxes of product from a
warehouse, loading the boxes onto pallets, and transporting the
boxes to a loading dock by power lift.
The job required
constant and repetitive lifting of boxes weighing between
twenty-five and seventy pounds.
In December, 2000, Peters was filling an order when he
felt some back pain.
As the pain was not severe, he thought he
had pulled a muscle.
He did not seek medical treatment and the
paid subsided.
By July, 2001, he had pain in his hip that
radiated down his leg.
medical attention.
Because of this pain, Peters sought
Medication did not relieve the symptoms.
Peters was referred to specialists.
After diagnosis, Peters was
told on July 26, 2001, that the pain was work related.
Peters
thereafter notified his supervisors, eventually taking a leave
of absence in anticipation of surgery.
Peters underwent back
surgeries in October, 2001, and February, 2002.
He was unable
to return to work at Wal-Mart due to there being no positions
fitting his medical restrictions.
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A brief stint as a truck
driver followed but that ended due to reoccurrence of symptoms
from prolonged sitting.
Peters filed his workers’ compensation
claim on July 18, 2003.
At the time of the hearing he no longer
received medical treatment for his back but was symptomatic.
On April 2, 2004, the CALJ concluded that Peters’
“current back complaints are the result of a cumulative trauma
injury occurring in the course of his employment with Wal-Mart,”
and that his claim was timely filed, pursuant to Kentucky
Revised Statutes (KRS) 342.185, as it was filed within two years
after he first learned, after being seen by a doctor, that he
suffered from a work related cumulative trauma injury to his low
back.
On September 3, 2004, the Board affirmed the opinion
and award of the CALJ, concluding that:
The CALJ relied upon substantial evidence
contained in the record that Peters’
condition was medically caused by cumulative
trauma, that he was first informed by a
physician of that fact on July 26, 2001, and
he notified his supervisor shortly
thereafter. Peters’ claim is not deficient
for want of notice nor was it barred by the
statute of limitations.
This petition for review followed.
Before us, Wal-Mart claims that the Board erred in
affirming the CALJ’s decision that Peters suffered a cumulative
injury.
Wal-Mart alternatively argues that if Peters’ injury
was cumulative, his claim was barred by the statute of
3
limitations, contending that the manifestation date was
December, 2000, and not July 26, 2001.
Our standard of review of a decision of the Board “is
to correct the Board only where the the (sic) Court perceives
the Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing evidence so
flagrant as to cause great injustice.”
Western Baptist Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
For the reasons
that follow, we affirm the Board.
Wal-Mart first argues that the CALJ and the Board’s
findings that Peters suffered a cumulative trauma injury were
not supported by substantial evidence and thus erroneous.
Specifically, Wal-Mart contends that the CALJ and the Board
relied on the testimony of the medical experts and failed to
give deference to Peters’ testimony which, Wal-Mart asserts,
leads to the sole conclusion that there was a single traumatic
work event, not a cumulative injury.
Contrary to Wal-Mart’s
argument, the decision of the CALJ makes specific reference to
reliance on the testimony of Peters, Peters’ medical expert, and
Wal-Mart’s medical expert in a finding of cumulative trauma
injury, going as far as to indicate that even the conclusions of
Wal-Mart’s medical expert, concluding that Peters experienced an
insidious and gradual onset of symptoms, supports a finding of
cumulative trauma injury.
The decision of the Board likewise
4
relies on the above evidence which supported the decision of the
CALJ.
Our review of the evidence indicates that the conclusion
of the Board was supported by substantial evidence.
causation is a matter for the medical experts.
Mining, 65 S.W.3d 503, 507 (Ky. 2001).
Medical
Hill v. Sextet
As such, there was no
abuse of discretion.
Wal-Mart next argues alternatively that if the injury
was cumulative, that Peters’ claim was barred by the statute of
limitations and that the CALJ and the Board misapplied the
manifestation rule.
We disagree.
The CALJ’s conclusion relied
on Hill v. Sextet Mining Corporation, supra at 507, which held
that a worker is not required to self-diagnose his condition and
is not required to give notice of a gradual work related injury
until he is advised of that fact.
The Board relied on the
similar analysis in the later case of Brown-Forman Corporation
v. Upchurch, 127 S.W.3d 615, 620 (Ky. 2004).
The evidence
indicated that Peters believed he injured his back at work in
December, 2000, but that he did not report the injury until the
pain worsened and he was advised of the cumulative nature of the
condition and that the condition was determined to be work
related by a doctor on July 26, 2001, after which he notified
his supervisor.
The above cases indicate that, for statute of
limitations purposes, Peters did not have to report the injury
until so advised it was work related.
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Our review concludes,
therefore, that the Board did not overlook or misconstrue
controlling precedents.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
W. Bryan Hubbard
Jonathan D. Weber
Lexington, Kentucky
BRIEF FOR APPELLEE STEPHEN
PETERS:
McKinnley Morgan
London, Kentucky
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