RUDD EQUIPMENT COMPANY VS. COMPENSATION FLETCHER (EDWIN K.), ET AL.Annotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
RUDD EQUIPMENT COMPANY
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-92410
EDWIN K. FLETCHER;
HONORABLE ANDREW F. MANNO,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Rudd Equipment Company (“Rudd”) seeks review of a decision
of the Workers’ Compensation Board affirming an Administrative Law Judge’s
award of disability benefits to Rudd’s former employee, Edwin Fletcher, for a
cumulative trauma injury. We affirm.
Fletcher was born May 10, 1967, and he is a high school graduate.
Fletcher worked for Rudd from 1994 until October 2005, as a heavy equipment
mechanic. In December 2006, Fletcher filed an application for resolution of
hearing loss claim and an application for resolution of injury claim with the Office
of Workers’ Claims. In addition to hearing loss, Fletcher alleged cumulative
trauma to his cervical spine, shoulders, buttocks, and low back, carpel tunnel, and
an emotional component.
Fletcher testified at a hearing before the ALJ on July 17, 2007. The
ALJ rendered an opinion and award finding Fletcher suffered a cumulative trauma
injury to his cervical spine, but denying Fletcher’s remaining claims. Rudd filed a
petition for reconsideration, which was denied by the ALJ. Rudd thereafter
appealed to the Board alleging the ALJ erred in finding Fletcher gave Rudd due
and timely notice of his cumulative cervical injury. The Board affirmed the ALJ’s
opinion, and this petition for review followed.
Specifically at issue here is whether the ALJ correctly found that
Fletcher gave Rudd timely notice of his cumulative injury on October 24, 2005.
Rudd argues that Fletcher’s testimony conclusively proved he was aware that he
suffered a work-related gradual injury at least two years prior to October 2005.
Kentucky Revised Statutes (KRS) 342.185(1) requires a worker to
give his employer notice of an injury “as soon as practicable.” For cumulative
trauma injuries, the “rule of discovery” controls, and the employee must give
notice when he discovers “that an injury ha[s] been sustained.” Alcan Foil
Products v. Huff, 2 S.W.3d 96, 101 (Ky. 1999). In Hill v. Sextet Mining Corp., 65
S.W.3d 503, 507 (Ky. 2001), the Kentucky Supreme Court explained:
Medical causation is a matter for the medical experts and,
therefore, the claimant cannot be expected to have selfdiagnosed the cause of the harmful change to his cervical
spine as being a gradual injury versus a specific traumatic
event. [The claimant] was not required to give notice that
he had sustained a work-related gradual injury to his
spine until he was informed of that fact.
In the case at bar, the ALJ cited Hill, supra, in reaching his conclusion
that Fletcher had given Rudd timely notice. The ALJ stated:
Mr. Fletcher testified he first started noticing
symptoms two years before October 24, 2005. Mr.
Fletcher testified he first treated with Dr. Adams. He
testified that every doctor he has seen, including Dr.
Adams, told him his problems were related to work. He
indicated Dr. Hyden took him off work on October 24,
2005. At that point, he stated he told [Rudd] why he was
However, there is no specific evidence that Mr.
Fletcher was aware of his work-related cervical injury
prior to October of 2005, when Dr. Adams and Dr.
Hyden informed him of the cause of his cervical
condition. Therefore, this ALJ finds that Mr. Fletcher’s
cervical condition manifest[ed] as of October 24, 2005.
This ALJ finds that Mr. Fletcher gave timely notice to
[Rudd] upon notification of his work related condition by
Rudd opines the ALJ clearly failed to rely on Fletcher’s unrebutted
testimony that he had been told his symptoms were related to his work in 2003. In
our review, we are mindful that the ALJ’s decision favored Fletcher; consequently,
“his only burden on appeal is to show that there was some evidence of substance to
support the finding[.]” Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Despite Rudd’s argument to the contrary, the record in this case reveals evidence
sufficient to support the ALJ’s decision. Accordingly, the Board properly affirmed
the opinion and award of the ALJ.
In his deposition, Fletcher acknowledged that two years before giving
notice to Rudd, he saw his family physician, Dr. James Adams, with complaints of
pain all over his body. He admitted that, after explaining his job duties, the doctor
attributed Fletcher’s complaints to his work and wrote him a prescription for pain
medication. None of Dr. Adams’s medical records was introduced into evidence
as he had retired from practice by the time Fletcher began litigating this claim.
Rudd claims Fletcher’s testimony is conclusive on the issue of notice.
We disagree. A review of Fletcher’s testimony does not reveal that Dr. Adams
diagnosed a gradual injury. Rather, Fletcher’s testimony implies that he knew his
job exacerbated his pain, but he was unaware he suffered from an actual injury.
In support of its argument, Rudd expands the holding of Alcan, supra,
and its progeny, to apply where a physician informs a worker that his bodily aches
and pains are work-related. While a doctor need not use the technical language
“cumulative trauma injury” to inform the worker of a harmful change, Brummitt v.
Southeastern Kentucky Rehabilitation Industries, 156 S.W.3d 276, 279 (Ky. 2005),
Alcan, supra, still holds that the worker’s disability manifests when he learns that
an injury has been sustained. Alcan Foil Products, 2 S.W.3d at 101 (emphasis
added). Here, although Fletcher acknowledged that Dr. Adams attributed his
complaints to his employment, Fletcher was “not required to self-diagnose the
cause of a harmful change as being a work-related gradual injury for the purpose of
giving notice.” American Printing House for the Blind v. Brown, 142 S.W.3d 145,
148 (Ky. 2004) (citing Hill, 65 S.W.3d at 507).
Rudd also complains that, while the ALJ failed to rely on Fletcher’s
testimony regarding his treatment with Dr. Adams, the ALJ arbitrarily relied on
Fletcher’s testimony as to the manifestation date of the injury. Fletcher testified
that Dr. Alan Hyden took him off work on October 24, 2005, and Fletcher then
gave Rudd notice that he had suffered a work-related injury. We are not persuaded
that the ALJ erred.
The ALJ “has the authority to determine the quality, character and
substance of the evidence[,]” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d
418, 419 (Ky. 1985), and he is free “to believe part of the evidence and disbelieve
other parts of the evidence . . . [.]” Caudill v. Maloney's Discount Stores, 560
S.W.2d 15, 16 (Ky. 1977). Here, was within the ALJ’s discretion to conclude that,
when Fletcher treated with Dr. Adams, he did not know he had sustained a “workrelated gradual injury; i.e., that his work was gradually causing harmful changes to
his spine that were permanent.” Hill, 65 S.W.3d at 507. Despite Rudd’s argument
to the contrary, the ALJ was free to conclude Fletcher was not apprised of his
injury until Dr. Hyden took him off work in October 2005, thereby making
Fletcher’s notice to Rudd timely. Consequently, the Board correctly affirmed the
opinion and award of the ALJ.
For the reasons stated herein, the opinion of the Workers’
Compensation Board is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sarah K. McGuire
John Earl Hunt