OLIVIA ANNE STEWART V. UNIFIRST CORPORATION, ET AL.
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RENDERED : February 22, 2007
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,Suprmr (Tourf of
2006-SC-0396-WC
OLIVIA ANNE STEWART
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-2094-WC
AND
2005-CA-002279
WORKERS' COMPENSATION NO . 03-83231
UNIFIRST CORPORATION, ET AL .
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Convinced that it was unclear the Administrative Law Judge (ALJ) correctly
understood the evidence regarding the notice requirement, the Workers' Compensation
Board vacated the claimant's award and remanded for further consideration of the
matter. The Court of Appeals determined, however, that the parties stipulated to the
date of the alleged work-related injury, that they were bound by the stipulation, and that
the claimant could not have given notice under KRS 342.185 to an individual that the
employer no longer employed on that date . Therefore, the court reversed and directed
the ALJ to dismiss the claim . We affirm.
The claimant's application for benefits alleged that her neck and shoulders, back,
and both hands began to hurt on January 10, 2002, when using a three-prong hook to
dislodge a bundle that was jammed in a chute . It alleged that she reported the incident
to Dan Smith, her employer's general manager, and to Cheryl Younger, the human
relations manager, that same day and that she underwent surgery for the neck injury in
February, 2002, and March, 2003. It also alleged that she reported carpal tunnel
syndrome after the diagnosis in June, 2003.
It is undisputed that the claimant first sought medical treatment for her alleged
injury on January 29, 2002, when medical records indicate that she saw Dr. Buchanan,
her primary care physician, for a "recheck ." After noting her responses to various
questions concerning her physical condition, his treatment notes state:
She has had a problem recently . She has had pain in her
left anterior shoulder sometimes in her chest radiating down
her left arm . She says it is very severe. It aches all day and
interferes with her sleep at night. . . . She has noticed some
numbness and tingling in her left hand and fingers .
About two weeks after seeing Dr. Buchanan, the claimant requested non-workrelated personal medical leave/short term disability leave to undergo surgery. An
employment form signed by the claimant and by Dr. Eggers, her neurosurgeon,
indicated that a C5/6 disc herniation commenced on January 18, 2002, and that surgery
was prescribed . Another form requested leave from February 20, 2002, until about
April 1, 2002, and was approved by Dan Smith. Dr. Eggers released the claimant to
return to work without restrictions on March 25, 2002. She was terminated as of April
26, 2002, for failure to comply with/enforce the tardy policy and for changing records
without authorization . There was no evidence that she missed any time between her
return to work and her termination .
Nowhere did Dr. Buchanan's or Dr. Eggers' treatment notes mention the workrelated incidents that were described in the claim or indicate that the complaints were
work-related . Dr. Shah diagnosed severe bilateral carpal tunnel syndrome on June 12,
2003, noting a history of numbness in the hands and the prior neck surgeries . The
claimant filed an application for benefits on September 29, 2003 . On October 23, 2003,
Dr. Bilkey performed an independent medical evaluation . Based on a history given by
the claimant, he determined that the surgeries were performed to treat the effects of a
January 10, 2002, injury to her neck at work. He also determined that the carpal tunnel
syndrome was due to repetitive motions performed her work.
The employer denied the claim, asserting that the alleged injury did not arise out
of and in the course of the employment and that the claimant failed to give due and
timely notice. The employer explained that the claimant took short-term disability when
she underwent surgery in February, 2002 . She later returned to work without
restrictions and did not report a work-related injury to her supervisor or human
resources until March 14, 2003, which was nearly a year after her termination . Shortly
thereafter, she filed a wrongful termination suit against the employer. At no time before
filing her claim did she report work-related carpal tunnel syndrome .
As noted by the ALJ, the parties stipulated to various matters at the Benefit
Review Conference (BRC). Among other things, they stipulated, "The plaintiff allegedly
suffered a work related injury on January 10, 2002." As pertinent to this appeal, they
also agreed to limit the contested issues to whether the claimant proved an injury as
defined by the Act, whether any injury was caused by her work, and whether she gave
adequate notice . The contested issues did not include the date of injury.
At the hearing, the claimant testified that she was uncertain of the date but that
the neck and shoulder injury occurred early in January, 2002 . She testified several
times over the course of the civil suit and workers' compensation proceedings. Her
testimonies contain several different dates for the incident and several different
versions of how soon after the incident she saw Dr. Buchanan ; however, she was
steadfast in asserting that the incident occurred on a day when she was filling in as
supervisor for Brenda Leslie, who was off work. She explained at the hearing that she
went to Brenda's area to pull down garments from a chute . When using a pole to do
so, she heard her neck pop and told a co-worker who was standing next to her. As she
was walking towards her own area "to get something to take," she picked up a case
from the floor to put it on the top shelf and her neck popped again . She stated that she
told Karen Bowling, who worked in her area, and then went to inform Cheryl Younger,
the human resources manager. She found Cheryl outside, smoking with Dan Smith
and Steve Sutton . Cheryl advised her to see Margie Matthis, a human resources
assistant, to "fill out a Workers' Comp paper." She stated that Margie had her "fill outsign a piece of paper." She stated that she called Dr. Buchanan, but sometime later
Margie told her that she'd be fired if she took compensation, so she cancelled the
appointment . She also made and cancelled another appointment . When her pain
became worse, she kept an appointment for January 29, 2002. She stated that she did
not tell Dr. Buchanan that her symptoms began with the work-related incidents because
she was afraid of being fired . For the same reason, she requested short-term disability
leave rather than temporary total disability when she underwent surgery.
Karen Bowling continued to work for the employer when she was deposed in the
claimant's wrongful termination suit. She also testified at the workers' compensation
hearing, recalling that the claimant had informed her of the injury and that she had
advised the claimant to fill out a report. She did not witness the incident or have
personal knowledge that the claimant reported it.
Cheryl Younger testified that she knew for certain that the claimant reported a
work-related injury, when Younger was human resources director. She was "not
absolutely certain whether it was December or January," but it was shortly before she
left the company. She also stated that the company discouraged workers'
compensation claims and that those individuals with work-related absences and
restrictions lost their jobs when they returned to work. She stated that she knew of 1520 such instances . Ms. Younger acknowledged that she was discharged involuntarily
and had testified against the employer in other litigation .
Dan Smith worked elsewhere when deposed but had been the defendantemployer's general manager of distribution in January, 2002 . The company later
terminated his employment. He testified that company policy required all work-related
injuries to be reported immediately to the worker's supervisor . An injured supervisor
would report to him. He would fill out an accident report, and then Ms . Matthis would
complete the accident investigation and inform the workers' compensation carrier . Mr.
Smith stated that the claimant never reported a work-related injury to him or to anyone
else in his presence. He approved her short-term disability application but would not
have done so had he known that she was injured at work. He was aware of a
longstanding injury to her neck, shoulder, and maybe her back. It dated to before he
was a general manager, and he did not know when or how it occurred .
Mr. Smith acknowledged that he terminated the claimant's employment based on
information that she had falsified company records. He also acknowledged that he had
written a letter after the termination, offering his highest recommendation regarding her
performance, work ethic, and personal ethics . Asked whether he presently agreed with
the letter, he responded, "Honestly, no." He explained that to his knowledge the
company had handled her case properly with regard to short-term disability and that
she had evidently stated something to the contrary. He considered that to be
dishonest .
Roy Steven Sutton, a general manager, disagreed with Ms. Younger's statement
that the company discourages the reporting of workplace injuries. He explained that
company policy requires them to be reported immediately . He stated that the claimant
never reported an injury to him .
Margaret Matthis, a human resources assistant since 1999, corroborated Mr.
Sutton's testimony regarding company policy. She stated that she did not prepare
accident reports . An injured worker's immediate supervisor would complete a report
and give it to her, after which she would process the workers' compensation claim. She
also completed paperwork for short-term disability requests . She stated that in
February, 2002, the claimant informed her that she needed surgery but did not indicate
that it was for a work-related injury.
Bethany Johnson, presently the employer's human resources manager, testified
that the claimant contacted her on March 14, 2003, and informed her that she had
sustained a work-related injury while working for the company . She stated that she had
undergone surgery while employed, that she needed further surgery, and that she
wished to file a workers' compensation claim . Ms . Johnson stated that she completed
an accident report at that time and submitted it to the workers' compensation carrier .
She also stated that the claimant received her full salary for the entire time that she was
on short-term disability .
The employer submitted employment records concerning Cheryl Younger and
Brenda Leslie. They indicated that Ms. Younger was terminated as being unsuited for
her job and last worked on January 8, 2002 . A time sheet that was signed by Ms.
Leslie indicated that she missed work January 1, 2002, (holiday) and January 11, 2002,
(sick) .
Among the arguments raised in its brief to the ALJ, the employer asserted that
the parties were bound by the stipulation that the date of the alleged injury was January
10, 2002. After pointing to numerous inconsistencies in the claimant's testimonies in
the civil suit and her claim, the employer asserted that it was impossible for the accident
and notice to have occurred as she alleged . Brenda Leslie's payroll records indicated
that she was absent only on January 11, 2002, which was after the stipulated date, and
Cheryl Younger no longer worked for the company after January 8, 2002 .
After summarizing the evidence, the ALJ noted that the parties had aggressively
but professionally litigated the issues and produced "an abundance of conflicting
evidence." Acknowledging that all of the witnesses appeared to be credible, the ALJ
found the testimonies of the claimant and Ms. Younger to be most persuasive . The ALJ
noted that there were discrepancies regarding the date of the neck and shoulder injury
but determined that the claimant sustained a work-related injury and notified her
supervisors as soon as practicable . The ALJ found the injury to be totally disabling and
dismissed the carpal tunnel claim for lack of notice .
Among other things, the employer's petition for reconsideration noted that the
ALJ erred in stating that "there is some discrepancy as to the date of this injury"
because the parties were bound by their stipulation regarding the date . It asserted
again that the claimant's version of the events could not have occurred on January 10,
2002, because the evidence of record indicated that Brenda Leslie was not absent on
that day and that Cheryl Younger had already been terminated . Therefore, the finding
in the claimant's favor was not supported by substantial evidence and was so
unreasonable as to be erroneous as a matter of law.
The ALJ denied that portion of the petition, stating as follows:
First, defendant points out that the parties entered into an
agreed stipulation that the "plaintiff alleges a work related
.injury on January 10, 2002 ." According to defendant's
payroll records, plaintiffs last day of work was January 8,
2002 .
Plaintiff correctly points out that although the BRC
stipulations included the plaintiff alleged a work-related injury
on January 10, 2002, the evidence submitted by the parties
indicated confusion on the issue . Even defendant's
witnesses testified that they believed plaintiff reported an
injury after January 8, 2002, which was reportedly her last
day of work. This ALJ, noting the discrepancy between the
evidence and the stipulation, arrived at a decision consistent
with the evidence.
803 KAR 25 :010, provides, in pertinent part, as follows :
Section 13. Benefit Review Conferences .
(13) If at the conclusion of the benefit review conference the
parties have not reached agreement on all the issues, the
administrative law judge shall:
(a) Prepare a summary stipulation of all contested and
uncontested issues which shall be signed by representatives
of the parties and by the administrative law judge; and
(b) Schedule a final hearing .
(14) Only contested issues shall be the subject of further
proceedings.
Section 16 . Stipulation of Facts .
(1) Refusal to stipulate facts which are not genuinely in issue
shall warrant imposition of sanctions as established in
Section 24 of this administrative regulation . An assertion that
a party has not had sufficient opportunity to ascertain
relevant facts shall not be considered "good cause" in the
absence of due diligence.
(2) Upon cause shown, a party may be relieved of a
stipulation if the motion for relief is filed at least ten (10) days
prior to the date of the hearing, or as soon as practicable
after discovery that the stipulation was erroneous.
(3) Upon granting relief from a stipulation, the administrative
law judge may grant a continuance of the hearing and
additional proof time.
Under the regulations, agreements contained in a signed BRC memorandum are the
equivalent of a contract from which a party may not be released without a showing of
cause .
The claimant had the burden of proving every element of her claim, including the
date of her work-related injury . KRS 342.185 and KRS 342.190 required her to prove
that she notified the employer of her work-related accident and resulting injury "as soon
as practicable ." The parties stipulated that, "The plaintiff allegedly suffered a work
related injury on January 10, 2002." They listed her allegations that she sustained an
injury and that the injury was work-related as being contested, but they did not include
the alleged date of injury among the contested issues. Therefore, the legal effect of the
stipulation was to establish the date of the alleged work-related injury . Because neither
party moved to be released from the stipulation, they were bound by it. It relieved the
claimant of the burden to prove the actual date of her injury and enabled the employer
to base its defense on the agreed-upon date . Although the ALJ was free to judge the
credibility of witnesses and to weigh conflicting evidence, the ALJ was not free to
disregard the date to which they agreed . Had the claimant made the required showing
of cause and been relieved from the stipulation, she would have been required to prove
the date of her injury .
This is not a case such as Osborne v. Pepsi-Cola , 816 S .W .2d 643 (Ky. 1991), in
which a party submitted evidence regarding a stipulated issue, listed the issue as being
contested in his brief, and failed to mention the stipulation in his petition for
reconsideration yet complained on appeal that the ALJ failed to enforce the stipulation .
The claimant's testimonies regarding the date were inconsistent, but the employer .did
not submit evidence that the alleged injury occurred on a date other than stipulated. Its
position was that no work-related injury occurred . Moreover, it sought to enforce the
stipulation in both its post-hearing brief to the ALJ and its petition for reconsideration .
For the claimant's version of events to be possible, the accident had to have
occurred on a day when Cheryl Younger was present and Brenda Leslie was absent.
Although the ALJ was free to conclude that testimony regarding Ms. Leslie's absence
on a given date was more persuasive than the documentary evidence, it is undisputed
that Cheryl Younger no longer worked for the employer on January 10, 2002. Under
the circumstances, testimony by the claimant and Ms. Younger cannot constitute
substantial evidence that she gave timely notice of a January 10, 2002, injury.
The decision of the Court of Appeals is affirmed .
Lambert, C.J ., Cunningham, McAnulty, Minton, Noble and Scott, JJ., concur.
Schroder, J., not sitting .
COUNSEL FOR APPELLANT,
OLIVIA ANNE STEWART :
JEANIE OWEN MILLER
214 WEST THIRD STREET
P .O. BOX 712
OWENSBORO, KY 42302-0712
COUNSEL FOR APPELLEE,
UNIFIRST CORPORATION :
KRISTI PRUTOW CIRIGNANO
TODD CLARKE BARSUMIAN
KAHN, DEES, DONOVAN & KAHN, LLP
801 MAIN STREET
SUITE 305
P .O. BOX 3646
EVANSVILLE, IN 47735-3646
JOHN BICKEL
THACKER, BICKEL, HODSKINS & THACKER, LLP
209 WEST FOURTH STREET
OWENSBORO, KY 42301
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