Opinion
NO. 2014-CA-001006-WC
02-13-2015
FRESENIUS MEDICAL CARE HOLDINGS APPELLANT v. GENEVIEVE NOBLE; HON. JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: F. Allon Bailey Patrick J. Murphy, II Lexington, Kentucky BRIEF FOR APPELLEE, GENEVIEVE NOBLE: Stephanie N. Wolfinbarger Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION COMMISSION
ACTION NO. WC-11-88476
OPINION
AFFIRMING
BEFORE: D. LAMBERT, J. LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Fresenius Medical Care Holdings (Fresenius Medical) petitions this Court to review an Opinion of the Workers' Compensation Board entered May 23, 2014, which vacated in part, and remanded an opinion of the Administrative Law Judge (ALJ) dismissing in part Genevieve Noble's claim for workers' compensation benefits. We affirm.
Noble started her employment with Fresenius Medical in 2004 as a dialysis nurse. Her job duties required her to lift 40 to 50 pounds, push a dialysis machine weighing 300 pounds on rollers, and manually manipulate patients. Noble alleged that she sustained ongoing and progressive injuries to her spine on March 8, 2010, April 26, 2011, and August 9, 2011.
Consequently, Noble filed a claim for workers' compensation benefits alleging, inter alios, "work-related cumulative trauma for which she was referred to Dr. Elmer Dunbar on March 8, 2010." It was uncontroverted that Noble reported the March 8, 2010, injury in February/March 2011. By opinion rendered November 18, 2013, the ALJ concluded:
The only issues on appeal relate to the alleged cumulative trauma injury that manifested on March 8, 2010.
15. No proceeding for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof . . . KRS 342.185.
16. An employee has the burden of proof and the risk of non-persuasion to convince the trier of fact of every element of his worker's [sic] compensation claim. (Citation omitted.)
17. [Noble] testified that she asked her supervisor how to go about filing a worker's [sic] compensation claim if she did not have a specific injury. This is the only indication of the giving of notice on the part of [Noble] for this particular injury and it took place approximately one year after the injury date according to [Noble]. The ALJ finds that this does not constitute the
giving of notice to the employer as soon as practicable after the happening of the injury.Noble then sought review with the Board. On May 23, 2014, the Board vacated in part and remanded. The Board held that the ALJ failed to make essential findings of fact upon whether Noble suffered a cumulative trauma injury, and, if so, the date of manifestation of the cumulative trauma injury. This review follows.
18. The ALJ therefore concludes based upon the evidence available, that [Noble] has failed to establish that notice was properly given with regard to the March 8, 2010, injury.
19. The Employer is relieved from liability of the contested expenses regarding the March 8, 2010, injury.
To begin, our review in a workers' compensation case is limited. We reverse the Board's opinion only where "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." W. Baptist Hosp. v. Kelly , 827 S.W.2d 685, 687-88 (Ky. 1992).
KRS 342.185(1) requires a claimant to give notice of an injury to the employer "as soon as practicable after the happening thereof." A cumulative trauma injury is a "gradual, work-related injury as opposed to a single traumatic event." Manalapan Mining Company, Inc. v. Lunsford, 204 S.W.3d 601, 604 (Ky. 2006). With a cumulative trauma injury, the claimant must give notice of the injury by the date of manifestation thereof. Special Fund v. Clark, 998 S.W.2d 487 (Ky. 1999). And, the date of manifestation of a cumulative trauma injury generally occurs when a physician informs the claimant that she has sustained a cumulative work-related injury. Manalapan Mining Co., 204 S.W.3d 601; Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001).
In this case, we agree with the Board that the ALJ committed error by not making a specific finding as to whether Noble suffered a work-related cumulative trauma injury in order to then adjudicate whether notice was timely:
[W]e believe the matter must be remanded to the ALJ for additional findings. The ALJ failed to make a specific finding as to whether Noble sustained a cumulative trauma injury. Thus, the ALJ must first determine whether Noble sustained a work-related cumulative trauma injury prior to resolving the issue of due and timely notice of the work injury. The findings of fact and conclusions of law contained in the numerical paragraphs 17, 18, and 19 as set out herein are insufficient and do not adequately address the issue of whether Noble sustained a cumulative trauma injury and the law concerning the obligation to provide notice of a cumulative trauma injury. On remand, should the ALJ determine a cumulative trauma injury occurred, he must also make a finding as to the date of manifestation of the cumulative trauma injury. After determining the date of manifestation, the ALJ must then decide whether notice was timely.Accordingly, we believe the Board properly vacated and remanded for specific findings of fact upon the cumulative trauma injury and manifestation thereof. See W. Baptist Hosp., 827 S.W.2d 685.
For the foregoing reasons, we affirm the Opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: F. Allon Bailey
Patrick J. Murphy, II
Lexington, Kentucky
BRIEF FOR APPELLEE,
GENEVIEVE NOBLE:
Stephanie N. Wolfinbarger
Louisville, Kentucky