Opinion
2013-SC-000338-WC
08-21-2014
CONSOL OF KENTUCKY, INC. APPELLANT v. RICKY ALLEN SPARKS; HONORABLE EDWARD D. HAYS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
COUNSEL FOR APPELLANT, CONSOL OF KENTUCKY, INC.: A. Stuart Bennett COUNSEL FOR APPELLEE, RICKY ALLEN SPARKS: Sherry Brashear
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED ON APPEAL FROM COURT OF APPEALS
CASE NO. 2011 -CA-002187-WC
WORKERS' COMPENSATION NO. 10-00773
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Consol of Kentucky, Inc., appeals from a Court of Appeals decision which held that Appellee, Ricky Allen Sparks, timely filed his workers' compensation claim. Consol argues that the Administrative Law Judge ("ALJ") erred by finding Sparks's claim was not barred by the notice and statute of limitations requirements set forth in KRS 342.185 and 342.270 respectively. For the reasons set forth below, we affirm the Court of Appeals.
Sparks worked as an underground coal miner for approximately thirty-five years. He began his employment with Consol in 1996. At Consol he worked as a scoop operator or mobile bridge operator. His work in low coal areas required him to kneel for a majority of the time with his neck bent to one side. To move around, Sparks had to either crawl or duck-walk. Sparks frequently lifted items weighing between fifty and 125 pounds.
Sometime in 2000 or 2001, Sparks noticed increased intensity of the aches and pains which he generally associated with manual labor. His symptoms worsened over time until pain began to interfere with his ability to work.
Sparks first consulted with a doctor, Dr. Katherine Gish, in 2006, complaining of pain in his low back, knees, right shoulder, and right elbow. She ordered imaging studies which showed that Sparks's knees were normal, but, that there were moderate degenerative changes in his lumbar spine and osteoarthritis in his right shoulder. Dr. Gish believed that Sparks's pain was a result of working in low coal mines and prescribed him medications for inflammation and pain. She did not diagnose Sparks with a specific work-related permanent injury. Sparks received treatment from Dr. Gish until 2008.
On March 23, 2009, Sparks sought treatment from Dr. Van Breeding. He again complained of pain in his back, neck, and knees. A MRI and studies performed on Sparks revealed a complex meniscal tear and degenerative changes of the left knee, bulging and spurs narrowing the foramin at L5-S1, and a left S1 radiculopathy. Sparks was referred to an orthopedic surgeon and began a course of steroid injections. He underwent an arthroscopic debridement of his left knee in March 2010.
Due to continued pain, Sparks stopped working at Consol on December 31, 2009. On June 21, 2010, Sparks was examined by Dr. Robert C. Hoskins. Dr. Hoskins, via a report dated July 1, 2010, diagnosed Sparks with:
a lumbosacral sprain/strain; bilateral S1 radiculopathies; L4-L5 and L5-S1 annular disc bulging and foraminal stenosis; L5 spondylosis; history of left knee medial meniscus tear; left knee arthroscopic surgery with probable partial medial meniscectomy in March 2010; post-operative weakness of the left knee with 2 centimeters of thigh atrophy; left knee medial compartment and patellofemoral compartment osteoarthritis; right knee patellofemoral osteoarthritis; cervical sprain/strain; and right shoulder calcific tendonitis and AC joint osteoarthritis.Dr. Hoskins believed that these impairments were work-related and the result of cumulative trauma and repetitive strain associated with Sparks's long-term employment in the coal mining industry. He assigned a 26% whole person impairment based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition. Dr. Hoskins placed restrictions on Sparks's activities and believed Sparks did not retain the physical capacity to return to the type of work he performed at the time of his injury. Sparks received the results from Dr. Hoskins sometime before July 8, 2010.
Based on Dr. Hoskins's diagnosis, Sparks gave notice to Consol of his intent to file a workers' compensation claim on July 8, 2010. He filed a Form 101 Claim for Benefits on July 12, 2010. Consol contested the claim arguing that it should be dismissed as untimely because it believed that Dr. Gish's comments put Sparks on notice that his injuries were work-related. Thus pursuant to KRS 342.185, Consol believed Sparks should have provided notice of his injury in 2006. Consol also argued that Dr. Gish's comments began the running of the two-year statute of limitations to file a claim per KRS 342.270. It does not argue that Sparks's visit to Dr. Van Breeding required him to provide notice of his injury
After reviewing the relevant evidence, the ALJ declined to dismiss Sparks's claim. He did not believe that Dr. Gish's diagnosis was sufficient to trigger the notice requirements of KRS 342.185 because her comments were general in nature and did not constitute a clear medical opinion. Instead the ALJ found that Sparks was first informed that he had a work-related permanent injury when he learned of Dr. Hoskins's diagnosis in July 2010. He found Sparks's claim was timely filed based on the date of Dr. Hoskins's report, July 1, 2010. The ALJ ultimately held that Sparks was permanently and totally disabled and awarded him permanent total disability benefits. Consol filed a petition for reconsideration which was denied. The Workers' Compensation Board and Court of Appeals affirmed. This appeal follows.
Consol again argues that Sparks's claim was barred by the notice and statute of limitations requirements set forth in KRS 342.185 and 342.270 respectfully. KRS 342.185 states in pertinent part that, ". . . no proceeding under this chapter 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 342.270 provides that a workers' compensation claim must be filed within two years after the injury causing accident.
Since Sparks successfully persuaded the ALJ that his claim was timely filed, Consol must prove that the ALJ's decision was not supported by substantial evidence of probative value. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Substantial evidence is defined as evidence of relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). A review of the record in this matter shows that the ALJ's opinion, award, and order is supported by substantial evidence.
Consol points to the following portions of Sparks's deposition testimony to support its argument that Dr. Gish informed him that his injuries were work-related:
Q: You knew that you were just kind of getting worn out, worn down, from working in that low coal, right?
Sparks: Right. I mean, I knew that the aches and pains were there but they were getting - I don't know, it seemed like they were getting worse and worse and I wanted to know why. I have been in the mines my whole life. Arthritis is one thing but when you start feeling tingling and burning and you don't have the response out of your legs or your arms or back and stuff that you normally have, and I didn't think [Dr. Gish] was doing anything to actually find out.
Q: Did you [and Dr. Gish] have any conversations where she said, you know, 'You are hurting all over because you work as a coal miner'? Did you all talk about that?
Sparks: Well, yes, basically I said, 'I'm starting to hurt all over' and I said, 'I'm having a burning sensation in my neck, they're going down in my shoulders. My legs are bothering me, my knees are bothering me, and my feet are bothering me.' And all I got was Ibuprofen and Naproxen for inflammation and I said, 'They're not
doing no good. I'm still hurting. I want to find out exactly what the problem is.' So I went to Doctor Breeding.
Q: Did she tell you that you were hurting all over because you were working in that low coal?
Sparks: Basically, basically.
Q: Basically . . .
Sparks: Yes.
Q: She did?
Sparks: Yes, basically 'You're in low coal and you're going to feel aches and pains,' but I've worked in low coal before and I didn't have these aches and pains that I was having then.
. . .
Sparks: Basically, because she said in low coal - 'Well, in low coal you are crawling in the dampness and it's causing aches and pains, you know, so that could be causing it.'
. . .
Q: But isn't it true that you and Dr. Gish had a conversation about why you were hurting in your neck and your back and your knees and didn't she tell you, you're working in low coal and you're going to feel aches and pains. Didn't she tell you that you were hurting because you were working in low coal?
Sparks: She said, you're in a mines [sic] in a low and damp [sic] and it would be natural to have aches and pains being in that position.
Q: So you had that conversation with Dr. Gish?
Sparks: Yeah.
In reviewing the deposition testimony, it is clear that Dr. Gish attributed Sparks's aches and pains to working in low coal. But, Dr. Gish never diagnosed Sparks with an actual permanent work-related injury. Accordingly, Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001) is dispositive in this matter. Hill held that it was not until a doctor actually "diagnosed a gradual work-related injury" that the clock began to determine if a claim was timely filed. Id. at 507. Applying that standard, Hill stated:
[i]t is clear that the claimant was aware of symptoms in his cervical spine and associated the periodic flare-up of symptoms with his work long before being evaluated by Dr. Gaw, and he also sought medical treatment after some specific incidents of cervical trauma. Furthermore, it is clear that the physicians who treated the claimant's symptoms over the years had encouraged him to quit working in the mines and had told him that the work was too stressful. Nonetheless, there is no indication that any of them ever informed him of his work-related gradual injury, i.e., that his work was gradually causing harmful changes to his spine that were permanent. Under those circumstances, we are not persuaded that the claimant was required to self-diagnose the cause of the cervical pain that contributed to his inability to work . . .Id. Thus, the claimant in Hill was found to have filed a timely claim for workers' compensation. See also General Elec. Co. v. Turpen, 245 S.W.3d 781, 784 (Ky. App. 2006) (holding that the notice requirement is not triggered until a "physician informs the worker that the cause of the condition is work-related").
Here, the evidence indicates that Sparks was first informed that he suffered from a permanent impairment caused by his employment when he consulted with Dr. Hoskins in 2010. Sparks did not have to self-diagnose a work-related injury before he received that report. We agree with the ALJ's conclusion that Dr. Gish's statements were too general in nature to constitute a medical diagnosis of a work-related injury. She attributed Sparks's pains to working in low coal but did not tell him it was causing permanent harmful changes to his spine and knees. Thus, substantial evidence supports the conclusion that Sparks provided timely notice and timely filed his workers' compensation claim in July 2010.
For the reasons set forth above, we affirm the decision of the Court of Appeals.
All sitting. All concur. COUNSEL FOR APPELLANT,
CONSOL OF KENTUCKY, INC.:
A. Stuart Bennett COUNSEL FOR APPELLEE,
RICKY ALLEN SPARKS:
Sherry Brashear