Opinion
NO. 2012-CA-001045-WC
01-11-2013
KENAMERICAN RESOURCES, INC. APPELLANT v. BILLY G. WARREN; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
A. Stuart Bennett Lexington, Kentucky A.V. Conway, II Hartford, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00609
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO, AND THOMPSON, JUDGES. CLAYTON, JUDGE: KenAmerican Resources, Inc. (hereinafter "KenAmerican") appeals from the May 15, 2012, opinion of the Workers' Compensation Board ("Board"), which affirmed the December 1, 2011, opinion and award of the Administrative Law Judge (hereinafter "ALJ"), which resolved the benefits claim of Billy G. Warren. Because we find no error with the Board's order, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Warren started working as an underground coal miner in April 1977 at Peabody Coal Company. After working approximately twenty (20) years for several different companies as a coal miner, he began his employment with KenAmerican in January 1997. While there, he worked as a "supply" man between forty-five (45) and fifty-four (54) hours per week. Warren operated a diesel scoop that required him to keep his head lowered in order not to touch the mine ceiling. Furthermore, his work required repetitive bending, stooping, and heavy lifting. Evidence, which was not contradicted, was presented that because of the requirements of his job on a daily basis, Warren hit his head on the mine ceiling.
Over time, Warren began to experience pain in his neck. This pain, however, was not disabling. In 2007, he sought medical care. After an office visit with a family practitioner, he was prescribed pain medication (Lortab). Despite prescribing the medication, the physician did not suggest or recommend that Warren stop work or seek other employment. Warren stated that he occasionally took the pain medication but continued to work full time.
Warren last worked for KenAmerican on April 26, 2009. Warren experienced not only neck pain but also pain and numbness in his lower back, legs, elbow, and hands. Although ultimately this was the last day of Warren's employment, at that time, he hoped to return to the mine. He wanted to continue the employment notwithstanding the physical problems in his cervical neck, lumbar back, and upper extremities.
Warren sought medical treatment and went to see Dr. Steven R. Mills, who had Warren get a cervical and lumbar MRI. Following the MRI, Dr. Mills referred him to Dr. William Schwank, a neurosurgeon. He also sought treatment from Dr. Darby Cole, a family practitioner.
Dr. Schwank diagnosed Warren with spondylosis of the cervical and lumbar spine, secondary to degenerative disease. Moreover, he concluded that Warren had left ulnar nerve entrapment in the elbow and bilateral carpal tunnel syndrome. Dr. Schwank concluded that Warren had a five percent (5%) whole body impairment from the cervical neck injuries and a four percent (4%) whole body impairment as a result of injuries in his lumbar back. Consequently, as a result of this diagnosis, the doctor believed that Warren could only bend, stoop, squat, crawl, climb, and stand with lifting on a very limited basis. Further, the doctor concluded that because of the severity of the ulnar nerve damage and the carpal tunnel syndrome in both hands, Warren required surgery.
Dr. Schwank testified that Warren's repetitive hitting of his head on the mine ceiling and his other job duties were substantial contributing factors in causing Warren's neck injury. Additionally, the doctor opined that the cumulative work-related trauma was a substantial contributing factor in causing the injuries to his lumbar back, ulnar nerve entrapment, and carpal tunnel syndrome in elbow and wrists. Dr. Schwank's ultimate conclusion was that Warren could not return to his previous employment in the underground mines.
Dr. Cole, Warren's primary care physician since July 2009, said that Warren complained of ongoing problems in his cervical neck and lumbar back with bilateral arm pain and numbness. Dr. Cole opined that Warren's history of cumulative trauma both in striking his head on the mine ceiling and the repetitive bending, stooping, and lifting, were each substantial contributing factors in causing Warren's injuries to the cervical neck and lumbar back. In addition, Dr. Cole judged that Warren's repetitive use of his hands, wrists, and forearms plus the continuous jarring and shaking of his upper extremities were substantial contributing factors in the development of his carpal tunnel syndrome. Based on his examination and treatment of Warren, Dr. Cole decided that Warren was not capable of doing manual labor, and therefore, not suitable for gainful employment.
After the evaluations, as a result of cumulative trauma, Warren claimed that he was permanently and totally disabled. He informed KenAmerican about the injuries and his intent to file a workers' compensation claim. On April 21, 2011, about two (2) years after his last day of work, Warren filed an application for resolution of a claim against KenAmerican. KenAmerican contested the claim.
After Warren filed his claim, KenAmerican requested that he be seen by Dr. Michael M. Best. Dr. Best examined Warren on July 27, 2011. Dr. Best concluded that Warren had significant symptom magnifications and nonphysiological complaints, which he observed had not been noted by the other treating physicians, that he was at maximum medical improvement, and that he did not have active impairment prior to the injury. Dr. Best concluded that Warren should be placed on restriction and that he no longer has the physical capability to perform his previous job.
The ALJ held a hearing about the claim on December 1, 2011. The agreed upon issues were whether benefits under Kentucky Revised Statutes (KRS) 342.730 should be awarded, work relatedness or causation, notice, unpaid or contested medical bills, temporary total disability ("TTD") benefits, and the statute of limitations. Before the ALJ, KenAmerican argued that Warren's claim was barred because he failed to give notice in a timely manner, that he did not establish that his complaints were causally related to his work history, and that he failed to prove that he was permanently and totally disabled.
The ALJ, in a December 1, 2011, opinion and award, found that Warren had given notice in a timely manner, proved a causal condition between his complaints and work history, and that he was permanently and totally disabled. As a consequence, she awarded him permanent total disability ("PTD") and medical benefits.
In the opinion, however, the ALJ did not address apportionment of liability. KenAmerican maintained that it had introduced the issue that if benefits were awarded, KenAmerican should only be responsible for a portion of the liability. Warren responded to this assertion by claiming that that apportionment of liability, in any form, was not an issue. In the petition for reconsideration, KenAmerican renewed its claims that Warren's notice was not timely and that it should only be responsible for a portion of the liability. The ALJ denied KenAmerican's petition for reconsideration n December 29, 2011.
KenAmerican then appealed the ALJ's order to the Board, which affirmed the ALJ on the issue of notice. With regards to the argument that KenAmerican should only be responsible for a proportionate share of the liability, the Board stated that this issue was not properly preserved and that it had no merit. KenAmerican now appeals from the Board's decision.
On appeal, KenAmerican reasserts its argument that Warren's claim is barred in its entirety because it was not timely and that because the trauma was cumulative, KenAmerican should only be assessed a proportionate amount of the liability for the benefits. Warren counters that he gave timely notice. Additionally, he argues that no legal basis exists to only assess KenAmerican a proportionate amount of the liability.
STANDARD OF REVIEW
The Board's review of the ALJ's decision is limited to a determination of whether the findings of the ALJ are so unreasonable, given the evidence presented, that they must be reversed as a matter of law. Ira A. Watson Depart. Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). Neither the Board nor an appellate court, may usurp the ALJ's role as fact-finder. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Therefore, our task as an appellate court in reviewing the Board's decision is to correct the Board only where it "has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
ANALYSIS
1. Notice
Timely notice must be given by a claimant seeking workers' compensation benefits. KRS 342.185. A determination of whether the notice was timely is a matter of fact based upon the circumstances of the case. Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 816 (Ky. 1968). Specifically, KRS 342.185 mandates that a claim for workers' compensation benefits must be filed within two (2) years from the date of injury. See Alcan Foil Products, A Div. of Alcan Aluminum Corp. v. Huff, 2 S.W.3d 96 (Ky. 1999).
Next, we address the definition of injury. Pursuant to KRS 342.0011(1), "'[i]njury' means 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." Undoubtedly, notice becomes more complex in situations where the injury is cumulative or occurs over time.
Given the nature of the injuries, the question is was Warren's notice timely. Warren claims that based on the date he was last able to work, April 26, 2009, filing his notice letter on July 8, 2009, was well within the two (2) year time period for notice found in KRS 342.285(1). In cases where an injury was the result of many "mini-traumas," the date for notice has been discerned as when the "disabling reality of the injuries becomes manifest." Randall Co./Randall Div. of Textron, Inc. v. Pendland, 770 S.W.2d 687, 688 (Ky. App. 1988). Moreover, where there is a gradual worsening of a condition, "the notice requirement is not triggered until a physician informs the worker that the cause of the condition is work-related." General Elec. Co. v. Turpen, 245 S.W.3d 781, 784 (Ky. App. 2006). Further guidance about injuries occurring gradually from a series of traumatic events or from multi-traumas was provided by our Supreme Court, when it held that the date of injury for purposes of KRS 342.185 occurs when the worker knows that he has suffered an injury, and he knows that the injury was work-related. See Alcan Foil Products, 2 S.W.3d 96; Special Fund v. Clark, 998 S.W.2d 487 (Ky. 1999).
In the case at hand, Warren sustained a variety of injuries resulting from the cumulative trauma of hitting his head on the mine ceiling and the repetitive actions associated with his position. All the injuries contributed to his total disability, which included injuries to his cervical neck, lumbar back, and upper extremities. After he stopped working for the company in April 2009, the diagnoses for these injuries, including ulnar nerve entrapment and bilateral carpal tunnel syndrome, were confirmed by specific medical testing.
While KenAmerican asserts that Warren knew in 2007 and should have provided notice then, it has provided no evidence, other than this assertion, to establish that Warren had knowledge about his injury or its work-relatedness prior to his last day of work in April 2009 and diagnoses by physicians. The medical treatment that Warren received in 2007 for neck pain, although attributed to hitting his head on the mine ceiling, was pain medication. But KenAmerican has provided no evidence that the treating physician or Warren thought that it was a disabling injury or work-related condition, or that he change jobs or stop working in the mines, much less that he had sustained a permanent injury or disability. Indeed, KenAmerican cites Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001), for the proposition that a worker is not required to self-diagnose a harmful change as being a work-related gradual injury that requires notice on the part of the worker. As pointed out by the Board in its opinion, the language of this case controls situations involving injuries like Warren's case.
Thus, KenAmerican is mistaken when it asserts that merely because Warren saw doctors for neck pain in 2007, he should have given notice. In 2007, not only did the physician not suggest that Warren was disabled but also Warren did not think he was unable to work in 2007. See Alcan Foil Products; 2 S.W.3d 96; Special Fund, 998 S.W.2d 487. Keeping in mind that the ALJ is the fact-finder, it was she who had the opportunity to observe and hear Warren's testimony about what he knew and when he knew it. Warren learned after his last day of work, in 2009, that his injuries were permanently disabling. Accordingly, we concur with the Board's decision to affirm the ALJ's decision that Warren's notice was timely and appropriate.
2. Proportionate liability
The second major argument by KenAmerican is that liability for Warren's claim should be assessed on a proportionate basis. But, as highlighted by the Board, the September 9, 2011, benefit review conference ("BRC") order indicated that the contested issues were benefits per KRS 342.730, work-relatedness/causation, notice, unpaid or contested medical expenses, TTD, and statute of limitations. KenAmerican did not indicate that "exclusion for pre-existing disability/impairment" was a contested issue. Then, at the hearing, the parties confirmed that the contested issues were the ones listed in the BRC order.
KenAmerican maintains that it was not necessary for them to preserve "exclusion for pre-existing disability/impairment" as a contested issue because Warren did not indicate that he had such impairment, but rather, KenAmerican contends that because Warren included "work-relatedness" and "causation" as issues, the issue of proportionate liability is preserved.
Liability assessed on a proportionate basis, however, is not an issue involving causation but falls under the category of exclusion for pre-existing disability/impairment. Hence, in order to preserve the issue for appeal, it should have been listed as a contested issue in the BRC order. The administrative regulations governing workers' compensation proceedings state as follows:
(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.803 Kentucky Administrative Regulations (KAR) 25:010, Sections (13) and (14). Thus, under the administrative regulations the parties in a workers' compensation matter shall determine the contested issues at a benefit review conference and that "[o]nly contested issues shall be the subject of further proceedings."
Since KenAmerican did not proffer proportionate liability as a contested issue, it waived its right to make such an argument in its brief to the ALJ, its petition for reconsideration to the Board on appeal and now to us. Moreover, as aptly observed by the Board, assuming for the purpose of argument, that KenAmerican could assert such an argument, the argument has no merit. The argument that it should only be assessed thirty-nine percent (39%) of the liability is not supported by any medical evidence but is only an assessment by KenAmerican's counsel of its liability.
In sum, we have carefully reviewed the record in this case pursuant to the standards set out in Western Baptist Hosp., 827 S.W.2d 685, and have determined that the Board did not overlook or misconstrue controlling statutes or precedent, or committed an error in assessing the evidence.
CONCLUSION
For these reasons, the respective decisions of the ALJ and Workers' Compensation Board are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: A. Stuart Bennett
Lexington, Kentucky
BRIEF FOR APPELLEE: A.V. Conway, II
Hartford, Kentucky