ECKART ALUMINUM V. DUSTIN CARKUFF, ET AL.
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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RENDERED : OCTOBER 29, 2009
NOT TO BE PUBLISHED
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2009-SC-000068-WC
ECKART ALUMINUM
V.
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2008-CA-001235-WC
WORKERS' COMPENSATION BOARD NO . 05-96404
DUSTIN CARKUFF;
HONORABLE JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) found the claimant's application for
benefits for a 2005 injury to be timely because he filed it within two years after
the payment of temporary total disability (TTD) benefits that related to the
effects of the 2005 injury rather than an incident that occurred in 2006 . The
Workers' Compensation Board and the Court of Appeals affirmed. Appealing,
the employer asserts that the ALJ erred by failing to find that a work-related
accident occurred in 2006 and that subsequent TTD benefits related to an
injury caused by that accident.
We affirm . The evidence did not compel a finding that TTD paid in 2006
related to the effects of a January 5, 2006, accident or injury. Substantial
evidence indicated, instead, that it related to the injury caused by the 2005
accident. Thus, it tolled the period for filing a claim for the 2005 injury.
The claimant began working for the defendant-employer in 2004 as a
process operator, work that required him to move 55-gallon drums of
aluminum powder . He was injured on January 31, 2005, while attempting to
prevent a drum from falling. Although he caught it, he fell to the ground with
his legs splayed in opposite directions . He felt immediate pain in the groin and
right lower abdomen and sought treatment in the emergency room . Dr.
Stephens diagnosed a right inguinal hernia ., which she repaired surgically .'
The claimant received voluntary TTD benefits from February 1, 2005,
through June 12, 2005, after which he received a letter from the Office of
Workers' Claims informing him that he had two years from June 12, 2005, in
which to file a workers' compensation claim. Although he returned to work on
June 20, 2005, he testified subsequently that he experienced constant pain in
the location of the injury but kept working in order to feed his family and retain
medical insurance for a daughter with special needs. He stated that he used
all of the pain medication that had been prescribed but sought no additional
medical treatment for the injury between May 23, 2005, and January 18, 2006.
On January 5, 2006, the claimant felt a sharp pain "in the exact same
spot" as the previous hernia when bending down to load a mill. He reported
P
the incident to his employer and sought medical treatment. Dr. Nunnelley
1
The claimant underwent surgery to repair a non-work-related right inguinal hernia
in 2002 . It is not at issue presently.
noted on January 18, 2006, that the claimant complained of pain in his groin,
"which was injured -on January 31, 2005 ." He also noted that the claimant felt
the pattern of symptoms was worsening; that he had been working regular
duty; that the pain was located in the right inguinal region ; and that lifting,
pushing, or pulling exacerbated the symptoms. Physical examination revealed
evidence of edema in the right inguinal area but no evidence of a hernia . Dr.
Nunnelley diagnosed a groin strain .
Dr . Stephens noted on February 2, 2006, that the claimant's clinical
symptoms were consistent with either a muscle strain or recurrent hernia .
After conservative therapy failed to improve his condition, Dr. Stephens
performed a diagnostic laparoscopy on February 27, 2006 . It revealed no
herniation, but Dr. Stephens did find and remove some scar tissue from the
previous surgery.
Dr. Peters, a pain management specialist, saw the claimant on referral
from Dr. Stephens in April 2006. He diagnosed post-hernia pain with
ilioinguinal irritation, which he treated with injections . He also prescribed
Cymbalta for the relief of neuropathic pain .
The employer paid TTD benefits from the February 27, 2006, surgery
through May 10, 2006, after which the Office of Workers' Claims informed the
claimant of the applicable two-year limitations period . The claimant returned
to work without restrictions in May 2006. After being placed back on
restrictions in July 2006, he quit working and began to receive short-term
disability benefits .
KRS 342 .185(1) requires a claim for an occupational injury to be filed
within two years after the "date of accident" or within two years following the
payment of voluntary income benefits, whichever is later. Filed on July 3,
2007, the claimant's application for workers' compensation benefits alleged a
January 31, 2005, injury. He argued that he did not suffer a new injury in
2006 and also that TTD paid in 2006 related to the effects of the 2005 injury,
tolling the period of limitations that otherwise would have expired on June 20,
2007. The employer argued that the claimant sustained two distinct accidents
and injuries, one in 2005 and one in 2006 ; that he received TTD for each of
them; and that the statute of limitations barred a claim for the 2005 injury.
"Accident" and "injury" are legal terms of art as used in Chapter 342 .
They continue to be distinguishable under the post-1996 Workers'
Compensation Act. As used in KRS 342 .185[1], a work-related "accident" is a
traumatic event that arises out of and in the course of employment . KRS
342 .0011(1) defines "injury" as :
[A]ny work-related traumatic event . . . that arises out of and in the
course of employment which is the proximate cause producing a
harmful change in the human organism evidenced by objective
medical findings . . . .
In other words, a work-related accident that proximately causes a harmful
change in the human organism is an injury. Except when a gradual injury is
involved, the limitations period for an injury claim runs for two years from the
date of accident or the termination of TTD, whichever occurs last.2
Workers' compensation benefits are paid for the effects of work-related
injuries . Whether an~ accident occurred on January 5, 2006, is immaterial
unless it caused an injury and also accounted for the TTD benefits paid in
2006. As the ALJ recognized, this claim turns on the issue of medical
causation, i.e . , whether the effects of the 2005 accident or of bending over at
work on January 5, 2006, proximately caused the period of TTD following the
February 2006 surgery. Three physicians offered opinions regarding
causation .
Dr. Peters attributed the claimant's ongoing symptoms to a nerve
problem that originated with the 2005 injury. He addressed causation in a
November 1, 2007, report stating as follows:
I understand there is a problem with the timeline with
regards to this patient's injuries . This patient had an injury
at work in 2005 . He had an attempt at treating that pain
with a repair of an inguinal hernia. An inguinal hernia was
repaired but did not improve his pain . He subsequently did
strain the same area again in early 2006, but it was the
same problem that he had beforehand . The surgical area
was re-explored . There was re-sectioned some scar tissue
but no new hernia was identified . I believe all of this
patient's problems started with his injury in 2005 . The
subsequent injuries and re-explorations were a continuation
of that single identical problem.
2 See Special Fund v. Clark, 998 S.W .2d 487 (Ky. 1999) ; Alcan Foil Products v. Huff, 2
S.W.3d 96 (Ky. 1999) ; Coslow v. General Electric Company, 877 S.W.2d 611 (Ky.
1994) .
In a supplemental report dated November 14, 2007, Dr. Peters stated:
"This patient was off work between February and May 2006 as a direct result of
his January 2005 work injury."
Dr. Sparrow evaluated the claimant in September 2007 . He received a
history of the January 2005 injury and subsequent hernia repair. Although he
noted that the severe pain continued and that Dr. Stephens performed a
second laparoscopy in 2006, he failed to mention the January 2006 incident at
work. He opined that the claimant's pain did not relate to the hernia but to
nerve damage that occurred in the 2005 accident.
Dr. Sheridan, an orthopedic surgeon, evaluated the claimant in January
2007 for the employer . He noted a history of the January 2005 injury and
surgery for a right inguinal hernia . as well as a history of severe right groin
pain at work on January 5, 2006, and the subsequent laparoscopic surgery. In
his opinion, a work-related injury on January 5, 2006, aggravated the
previously-repaired hernia . The claimant reached maximum medical
improvement on July 1, 2006, and required no further medical treatment.
KRS 342 .285 designates the ALJ as the finder of fact in workers'
compensation claims, which gives an ALJ the sole discretion to determine the
quality, character, and substance of evidence; to weigh conflicting evidence;
and to pick and choose the parts of the evidence to rely upon.3 The claimant
offered prima facie evidence that TTD paid in 2006 related to the effects of the
3 Paramount Foods, Inc. v. Burkhardt , 695 S.W.2d 418 (Ky. 1985); Caudill v.
Maloney's Discount Stores , 560 S .W.2d 15, 16 (Ky. 1977) .
2005 accident . As the party raising a limitations defense, the employer had the
burden to prove that TTD paid in 2006 related to the effects of a January 5,
2006, accident and resulting injury. Having failed to meet that burden, its
burden on appeal is to show that_rthe favorable evidence was so overwhelming
as to compel a favorable ffndingg 4 The record contains no such evidence.
Met with substantial contrary evidence, the mere fact that symptoms
occurred while bending over at work on January 5, 2006, did not compel a
finding that subsequently-paid TTD compensated the effects of an injury that
occurred on that date. Nor did Dr . Sheridan's testimony attributing the
claimant's symptoms in 2006 to a work-related aggravation of the previouslyrepaired hernia, Dr. Nunnelley's diagnosis of a groin strain in January 2006, or
selected portions of Dr. Peters' testimony compel such a finding.
The claimant testified that he continued to experience severe groin pain
after returning to work in 2005 and that his co-workers performed heavy lifting
for him thereafter. He related his symptoms to the 2005 injury when seeking
treatment from Dr. Nunnelly shortly after the 2006 incident. Drs . Peters and
Sparrow attributed the pain to nerve damage produced by the 2005 accident .
The diagnostic laparoscopy that Dr. Stephens performed on February 27, 2006,
revealed no hernia but did reveal scar tissue from the 2005 procedure, some of
which she removed . The claimant received TTD while recovering from the
surgery. Although Dr. Peters did not see the claimant until April 2006, he had
knowledge of the other physicians' findings when stating that the claimant
4 Special Fund v. Francis, 708 S .W.2d 641, 643 (Ky. 1986) .
missed work from February 27, 2006, through May 10, 2006, as a direct result
of the 2005 injury. Thus, nothing required the ALJ to disregard the opinion.
The ALJ did not err by failing to dismiss this claim. Even if bending at
work on January 5, 2006, aggravated the claimant's symptoms temporarily,.
substantial evidence indicated that TTD he received after the February 27,
2006, surgery related to the effects of the 2005 accident and resulting injury.
Thus, it tolled the period of limitations for filing a claim for the injury. The
claimant's application for benefits was timely because he filed it within two
years after the final TTD payment.
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT,
ECKART ALUMINUM :
Lyn Douglas Powers
Fulton & Devlin
2000 Warrington Way
Suite 165
Louisville, KY 40222
COUNSEL FOR APPELLEE,
DUSTIN CARKUFF:
Neil Steven Weiner
The Landward House
1387 South Fourth Street
Louisville, KY 40208
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