Opinion
No. 2003-CA-001241-WC.
October 1, 2004.
Petition for review of a Decision of The Workers' Compensation Board, Action No. WC-01-88960.
Steven D. Goodrum, Clark Ward, Lexington, Kentucky, Brief for Appellant.
Wayne C. Daub, Louisville, Kentucky, Brief for Appellee.
Before: McANULTY, MINTON, and SCHRODER, Judges.
OPINION
Dana Corporation (Dana) petitions this Court for review of a decision of the Workers' Compensation Board (Board) affirming an opinion of the Administrative Law Judge (ALJ), awarding Beverly Love (Love) permanent total disability benefits. Dana presents two questions on appeal. The issues to be resolved are (1) whether Love timely filed her application for benefits regarding her low back/lower extremity injuries, and (2) whether the ALJ's decision awarding permanent total disability was against statutory and case law. We affirm.
Love was born June 30, 1950, and has a high school education, with no specialized or vocational training. In 1972, she was employed by American Chain and Cable in the shipping department where she did sedentary work with no lifting involved, but regular use of her hands and arms. A year later, she was employed by Tyson Bearing as an inspector, which required her to use her arms and hands for long periods of time. She left Tyson in 1975 and was a homemaker for the following 14 years. In 1989, she was then employed making material patterns at Hand-Markers. This employment also required constant use of her hands and arms. She was employed with Arby's in 1990, for three-months, as a sandwich maker. This job required her to stand for long periods of time. Then, in September 1992, Love was employed with Dana, the appellee in this case. When she began working at Dana, she was employed as a riveter, putting pads on brake shoes. Love described this job as requiring her to lift 45-50 pounds repetitively, as many as 40-50 times per hour. She worked as a riveter for six years. After that, she operated a welding machine. According to her testimony, this job required her to constantly lift 15-pound items approximately 500 times per hour. As both a riveter and welding machine operator, Love often worked overtime. In August 1999, while employed as a welding machine operator, Love first noticed her low back and leg problems.
In October 1999, Love sought treatment from Dr. Barret Lessenberry for lower body pains (leg, hip and lower back). It was also around this time that Love bid off her job as a welding machine operator to a different job as a de-burr operator. Love testified she did this because the former job required constant bending and she thought the new job would physically help her out more. She did not, however, inform anyone at work of her pain. When she first sought treatment from Dr. Lessenberry, he gave her treatment for what he diagnosed to be a pinched nerve. This treatment consisted of pain and anti-inflammatory medication. He did not express to Love an opinion of causation at that time. He continued to treat her, when on February 8, 2000, he performed an MRI and found disk bulging at L4-5 and L5-S1 with facet changes at both levels. Dr. Lessenberry then ordered Love to complete six days of physical therapy by Dr. Reddy. The physical therapy required Love to miss work those six days. According to Love's testimony, neither doctor informed her what was causing her back problems at that time. Then in September 2000, Love was transferred to the brake assembly line. At that time, Love's problems intensified because of the physical demands of that job. She testified that despite continuing treatment with her physicians and being taken off work for a period of time again, she had never been informed that her pain was work-related. She also testified that she did not inform anyone at Dana of her problems because she thought she would just get used to the physical demands of this new job. Dr. Lessenberry then saw Love again on March 29, 2001, when she came into his office with low back pain again. Love claims this is when Dr. Lessenberry informed her that her low back problems might be work-related.
In October 2000, Love then began to experience pain in her neck and arms. She sought treatment from Dr. Wolff on April 11, 2001, when her pain increased. Dr. Wolff placed her on lifting restrictions. Love claims Dr. Wolff stated her neck pain could be work-related at this April 2001 visit. By May 23, 2001, Dr. Wolff diagnosed Love with thoracic outlet compression that was work-related and increased her restrictions. Dr. Wolff concluded by August, 2001, that the restrictions were permanent. Dr. Wolff did not, however, make any assessment regarding functional impairment.
Love had also been treated by Dr. Reddy, for various ailments including high blood pressure and anxiety. Dr. Reddy also treated Love for a bulging disc in her lumbar spine, but there are no records as to Dr. Reddy addressing causation or functional impairment. Dr. Reddy referred Love to Dr. Majd on July 13, 2001. He diagnosed Love with having intractable neck pain with radiation into her shoulders. Then Love met again with Dr. Majd in October, 2001, where she complained of pain between her shoulder blades, headaches, arm pain, and numbness in her left fingers. On July 30, 2001, Dr. Majd documented Love's MRI which showed posterior hypertrophic changes at C4-5 and C5-6 with slight compression of the thecal sac and cord on the left at these levels. Another MRI, performed on December 27, 2001, showed mild hypertrophic changes, mild L4-5 disc bulging, acquired central spinal stenosis at L4-5 level due to disc bulging and facet hypertrophy, and a mild L5-S1 disc bulging with annular tear.
An independent medical evaluation of Love was performed by Dr. Best on June 17, 2002. Dr. Best diagnosed Love as suffering from degenerative disc disease of the cervical and lumbar spine. He assessed Love as suffering from a DRE Cervical Category II, resulting in a 5-8% impairment to the whole person and a DRE Lumbar Category II, resulting in an additional 5-8% impairment to the whole person. Dr. Best, however, did not find a causal relationship between Love's conditions and alleged injuries on March 29, 2001, and April 11, 2001, that occurred at Dana. It appears that Dr. Best was under the impression that only two acute episodes of injuries had occurred, instead of a cumulative trauma. The only restrictions he recommended was that she be limited to medium duty work and no lifting greater than 10-15 pounds infrequently above shoulder level.
Another independent medical evaluation was performed on Love on August 16, 2002, by Dr. Bilkey. He diagnosed Love as suffering from lumbar strain, thoracic outlet syndrome, and degenerative disc disease of the cervical and lumbar spine. He related this diagnosis to her work and her small build. He found that Love suffered from a DRE Lumbar Category II impairment, resulting in a 5% whole person impairment rating. He assessed her with an additional 3% whole person impairment due to her cervical condition and thoracic outlet compression. Dr. Bilkey gave her restrictions that included avoiding work activities above light duty work, not to lift anything over 10 pounds, and to avoid repetitive bending, twisting, and upper extremity work. Love has not returned to any form of work since she left her job with Dana in August 2001.
As stated above, one of the issues in this appeal is whether Love filed her claim with regards to her low back/lower extremity within the statute of limitations. The ALJ concluded as follows:
[W]hen did the Plaintiff become reasonably apprised that her symptoms in general were work-related? It is clear from the credible testimony of the Plaintiff, as well as the testimony of Dr. Wolff; the Plaintiff was not diagnosed with work-related cervical and upper extremity problems consisting [sic] thoracic outlet compression until Dr. Wolff saw her in April 2001.
In regard to her lumbar condition, the Plaintiff testified that while she began noticing symptoms in August of 1999, it was not until March of 2001, after being advised by Dr. Lessenberry, that her back condition was work-related. . . .
Therefore, the [ALJ] is persuaded the Plaintiff did not become aware of a gradual injury to her lumbar spine and know it was caused by work until March of 2001 when Dr. Lessenberry placed her on permanent restrictions as a result of the same. The [ALJ] is further persuaded that the Plaintiff did not become aware of a gradual injury to her cervical spine and upper extremity and know it was caused by work until being seen by Dr. Thomas Wolf [sic] in April 2001 and advised of the same.
. . . [O]nce being advised her conditions were work related, [Plaintiff] gave notice to the Employer. The Form 101 . . . was filed . . . on April 22, 2002, well within two years of March 2001 and April 2001, the time the Plaintiff became aware of her lumbar and cervical conditions were work related.
Our standard of review of a decision of the Workers' Compensation Board comes from the Kentucky Supreme Court in Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992). The Court stated "[t]he function of further review of the WCB in the Court of Appeals 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." Id. The claimant in a workers' compensation action has the burden of proving every element in his claim. Snawder v. Stice, Ky.App., 576 S.W.2d 276, 279 (1979). Here, Love was successful before the ALJ and the Board. Thus, the question here is whether there was substantial evidence to support the ALJ's findings. Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736 (1984). "Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Resources and Environmental Protection Cabinet, Ky. App. 891 S.W.2d 406, 409 (1994), citing Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972). As the fact finder, the ALJ has the sole authority to assess and evaluate the "quality, character, and substance of the evidence". Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993); See also Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985). Thus, the ALJ may reject any testimony and rely on the evidence as he sees fit, regardless of what witness is bringing in the evidence and whether it is or is not from the party's total proof. Hall's Hardwood Floor Co. v. Stapleton, Ky.App., 16 S.W.3d 327 (2000). Simply showing evidence contrary to the ALJ's decision will not be a basis to require a reversal on appeal. Whittaker v. Rowland, Ky., 998 S.W.2d 479, 482 (1999), citing McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
Dana first argues that Love failed to timely file her application for benefits in regards to her low back/lower extremity problems. Specifically, Dana claims there is overwhelming evidence which shows Love was aware of her low back and lower extremity problems in February 2000, and that should have been the date from which the statute of limitations should have run, not the March 2001 date.
An injury is defined as "any work-related traumatic event or series of traumatic events, including cumulative trauma, arising 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." Ky. Rev. Stat. (KRS) 342.0011(1). Cumulative trauma claims present a very difficult task when trying to assess when the statute of limitations began to run. KRS 342.185 requires the claimant to give notice to the employer of the accident as soon as practicable and file the claim within two years after the date of the accident. This time, however, does not begin to run until the "worker discovers the existence of a work-related gradual injury." Special Fund v. Clark, Ky., 998 S.W.2d 487, 490 (1999). This means, the two year period does not begin to run until the worker knows he has an injury and that this injury was caused by his work. Id. (Emphasis added). Our Supreme Court also held in Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96, 101 (1999) that the statute of limitations begins to run once the worker realizes he has sustained a work-related injury. However, a claimant is not expected to self-diagnose the cause of the injury to his body because medical causation is a matter for the medical experts, not a lay person. Hill v. Sextet Mining Corporation, Ky., 65 S.W.3d 503, 507 (2001).
Dana argues that since Love was taken off work for 6 days in February, 2000, by Drs. Lessenberry and Reddy, Love was aware at that time that her injuries were caused by her work. Dana also relies on the testimony of Love where she states that "taking parts off the line and bending over and putting them in a box" was bothering her physically. Dana claims, since Love testified there were no other activities which could have caused her lower back/lower extremity problems, Love had to have known her problems were work-related at a sooner date, specifically February, 2000. The ALJ and the Board found that Love's mere suspicions that her pain was exacerbated while working was not enough to trigger the statute of limitations at that time. Following the Court's ruling in Hill, it was not enough that Love may have had a suspicion. As the Board stated, Love "was under no duty to self-diagnose the cause of the harmful changes to her lumbar spine." Although Love may have been receiving treatment for the injuries earlier, this does not necessarily support the conclusion that she was also aware that these injuries were caused by her job. One can be diagnosed with an injury and think their job is only exacerbating the injury, not actually causing it. There was substantial proof, based on Love's testimony and the medical records, for the ALJ and the Board to determine that Love was not aware that her lower back/lower extremity injuries were work-related until notified by Dr. Lessenberry on March 29, 2001.
Next, Dana claims the ALJ's decision awarding Love permanent total disability violates KRS 342.730 and case law. Specifically, Dana claims there was no showing whether Love had a complete inability to perform any type of work, not just the work she had been performing.
For an employee to be awarded permanent total disability, it must be shown that the employee "has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury. . . ." KRS 342.0011(11)(c). The ALJ has to weigh the evidence in order to decide whether the claimant has the ability to "earn an income by providing services on a regular and sustained basis in a competitive economy." Ira A. Watson Dept. Store v. Hamilton, Ky., 34 S.W.3d 48, 51 (2000).
Since the ALJ determined that Love satisfied her burden of proof, the issue here is whether substantial evidence supported the ALJ's decision. Id. at 52, citing American Beauty Homes v. Louisville Jefferson County Planning Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964). The ALJ concluded as follows:
The Plaintiff has presented very credible testimony. The testimony concerning her lack of academic ability is unchallenged. The Plaintiff is very limited in her intellectual, academic, and vocational abilities. Further, the Administrative Law Judge [sic] found the Plaintiff to be quite credible and believable when she testified she could not perform any of the type [sic] of work at present she has performed in the past. Therefore, when applying Plaintiff's medical and vocational situations to the principles announced by the Supreme Court in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), the Administrative Law Judge finds the Plaintiff is totally permanently occupationally disabled and has been so since August 15, 2001.
There is medical testimony which shows, due to her cumulative trauma injuries, she has permanent medical impairment and will always be restricted in her physical capabilities. She can no longer lift anything weighing more than 5-10 pounds, and she is to refrain from repetitive bending, twisting and repetitive upper extremity work. Love also testified that she continues to have severe pain in her neck, back, upper and lower extremities. She also testified to her inability to sit, stand or walk for long periods of time. According to Love, at her deposition, she did not think she could handle going back to work because of the pain in her neck, arms and hands. "A worker's testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured." Watson, 34 S.W.3d at 52, citing Hush v. Abrams, Ky., 584 S.W.2d 48 (1979). Dana argues that an employee must show that she is unable to perform any type of work as a result of a work injury, citing to the use of the word "any" in KRS 342.0011(11)(c) and in Watson, supra. However, Watson also points out that "[t]he definition of `work' clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled." Id., citing Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). Clearly, there was substantial evidence for the ALJ to determine that Love could not return to the work she had performed with Dana, or even any type of sedentary work since that would still require her to either sit, stand or use her arms and hands. The ALJ did not have to find that Love was "homebound". Based on Love's testimony, her limited high school education with no special training, and the medical evidence, the ALJ had substantial evidence to determine Love suffered a permanent total occupational disability.
Since the Board did not misconstrue controlling statutes or precedent and there is substantial evidence to support the award, the opinion of the Workers' Compensation Board is affirmed.
All Concur.