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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: December 5, 2014
CLAIM NO. 201200800
DAVID ALLEN STEPHENS PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
VIRGINIA FUEL CORPORATION
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. David Stephens (“Stephens”) appeals
from the July 8, 2014 Amended Order on Remand issued by Hon. Jonathan R.
Weatherby, Administrative Law Judge (“ALJ”).
The ALJ dismissed Stephens’ claim against Respondent, Virginia Fuel
Corporation (“Virginia Fuel”). On
appeal, Stephens argues the ALJ erred in determining the date of manifestation
of his cumulative trauma injury and in apportioning liability. For the foregoing reasons, we affirm.
Stephens worked for
Virginia Fuel from August 2011 to January 28, 2012 as a mechanic and
repairman. Prior to this position, he
worked for thirteen years as a surface mine mechanic. During his employment with Virginia Fuel, he
worked 75% of the time in Kentucky, and 25% in Virginia. On January 28, 2012, he was laid off. However, he briefly returned to work from June
3, 2012 to June 13, 2012, working exclusively in Virginia. Stephens stated he returned to work for
Virginia Fuel, though records indicated he was actually employed by A&G
Coal Corporation.
Stephens initially
alleged cumulative trauma injuries to his right shoulder and both hands
occurring on June 13, 2012, while working in Virginia for Virginia Fuel. He later amended the claim to allege an
alternative date of injury of January 28, 2012, which was his last date of
employment with Virginia Fuel.
Stephens testified he
had experienced pain and numbness in his hands, elbows and shoulders for five
years. He confirmed these symptoms
predated his employment with Virginia Fuel.
He first sought treatment with Dr. Steven Morgan on November 10,
2009. Dr. Morgan diagnosed carpal tunnel
syndrome about three months thereafter, and referred Stephens to Dr. Margaret
Napolitano. On a patient questionnaire
dated February 22, 2010, he indicated his symptoms began six months earlier.
Dr. Robert Hoskins
performed an independent medical examination on June 4, 2012. He diagnosed carpal tunnel syndrome, and
noted a history of symptoms since 2009.
He assessed a 22% whole person impairment rating pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment, 5th
Edition and placed Stephens at maximum medical improvement (“MMI”) on October
26, 2010.
In an opinion rendered
January 28, 2013, the ALJ dismissed the claim entirely, finding a lack of
jurisdiction because Stephens last worked for Virginia Fuel in Virginia. Stephens appealed. This Board vacated the ALJ’s opinion,
remanding for reconsideration of the jurisdiction issue and to reconsider
Stephen’s cumulative trauma claim.
In a subsequent October
21, 2013 Order and Award on Remand, the ALJ reconsidered the cumulative trauma
claim under the alternative injury date of January 28, 2012. The ALJ acknowledged evidence of a
pre-existing, active impairment prior to Stephens’ employment with Virginia
Fuel. However, the ALJ determined there
could be no carve-out because of the cumulative nature of the injury. Further, the ALJ found a compensable
bilateral shoulder injury.
Following denial of its
petition for reconsideration, Virginia Fuel appealed. This Board again vacated the ALJ’s opinion
and remanded for two determinations.
First, we directed the ALJ to determine what percentage of Stephens’
impairment was caused by his employment with Virginia Fuel, and apportion
liability accordingly. Further, we
instructed the ALJ to determine which portion of the shoulder injury was caused
by Stephens’ employment with Virginia Fuel.
In an Amended Order on
Remand dated July 8, 2014, the ALJ determined Stephens’ cumulative trauma
injuries to his upper extremities, including carpal tunnel syndrome and
shoulder injury, existed as of November 10, 2009. Relying on Dr. Hoskins’ report, he further
concluded Stephens had reached MMI by October, 2010. Because this period predated Stephens’
employment with Virginia Fuel, and because the ALJ determined he suffered no
further trauma while employed there, no benefits were awarded. The claim against Virginia Fuel was
dismissed.
Stephens now appeals,
raising two issues for review. He first
argues the ALJ erred in determining his date of manifestation of his cumulative
trauma injury. He also argues the ALJ
erred in dismissing his claim based upon apportionment of liability.
The ALJ determined
Stephens’ date of manifestation is November 10, 2009. Stephens argues the date must be June 4, 2012,
when Dr. Hoskins diagnosed carpal tunnel syndrome and informed him it
was a work-related condition. We disagree.
Stephens points to case
law which explains that a cumulative trauma injury “manifests” for purposes of
notice and statute of limitations when the injury is diagnosed and a
physician informs the claimant the injury is work-related. See
e.g. Alcan Foil Products v. Huff, 2 S.W.3d 96, 101 (Ky. 1999). However, the date the symptoms of a cumulative injury arise governs when an employer’s
liability begins. This date is not one
and the same as the date when a work-related injury manifests itself for
purposes of notice and statute of limitations.
The Supreme Court explained the distinction in American Printing
House for the Blind ex rel Mutual Ins. Corp. of
America v. Brown, 142 S.W.3d 145, 148 (Ky. 2004):
Under the version of KRS 342.0011(1) that pertains to this claim, an injury is a
work-related traumatic event that causes a harmful change in the human
organism. KRS 342.185 provides a period of
limitations for a work-related injury that runs for two years after the date of
the accident that causes it. In Alcan Foil Products v. Huff, supra at 99 and 101, we noted that “the entitlement to workers' compensation
benefits stems from the fact that an occupational injury has been sustained”
and that it “begins when a work-related injury is sustained, regardless of
whether it is occupationally disabling.” Nonetheless, because gradual injuries
often occur imperceptibly, we reaffirmed the principle that a rule of discovery
governs the notice and limitations requirements for such injuries. We
determined that the obligation to give notice and the period of limitations for
a gradual injury are triggered by a worker's knowledge of the harmful change
and its cause rather than by the specific incidents of trauma that caused it. Nothing in Alcan indicated that liability for an injury begins when the
notice and limitations requirements are triggered. (Emphasis added).
In this case, the pertinent question is when the symptoms of
Stephens’ injury arose in order to determine which employment caused the
injury. The ALJ determined his symptoms arose
on November 10, 2009. This factual
conclusion is well-supported by the record.
Stephens first sought treatment with Dr. Morgan on this date, and
complained of pain and numbness in his upper extremities. On his patient questionnaire to Dr.
Napolitano dated February 22, 2010, Stephens indicated his symptoms began about
six months prior. This proof constitutes
the requisite substantial evidence to support the ALJ’s determination of the
manifestation date of Stephens’ injury for purposes of determining when the
impairment arose. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
Stephens next argues
the ALJ erred in dismissing his claim against Virginia Fuel based upon
apportionment of liability. Essentially,
he argues there should be no apportionment in cumulative trauma cases; rather,
the entirety of the liability should be placed on the employment which last
contributes to the overall impairment rating.
He reasons that, if workers are required to apportion liability between
employments that contribute to their impairment, it would effectively bar
recovery for impairment due to cumulative trauma occurring more than two years
from the date a disability manifested. He further contends this Board’s reliance on Southern
Kentucky Concrete Contractors, Inc. v. Campbell, 662 S.W.2d 221 (Ky. App.
1983) is misplaced because existing law at the time required the Special Fund
to be liable for the percentage of disability due to the arousal of dormant,
non-disabling conditions brought into disabling reality by subsequent
compensable injury or occupational disease.
What Stephens
overlooks, is the ALJ determined “no portion” of his cumulative trauma injuries
may be attributed to the period of employment from August 2011 to January 28,
2012. Stephens has not specifically
challenged this factual finding as unsupported by the record, and did not file
a petition for reconsideration of the ALJ’s July 8, 2014 Order. However, to be sure, we note Dr. Hoskins
placed Stephens at MMI as of October 26, 2010, ten months before his employment
with Virginia Fuel commenced.
Furthermore, Stephens testified his symptoms began in 2009. Dr. Hoskins did not apportion any portion of
Stephens’ impairment rating specifically to his employment with Virginia
Fuel. At the final hearing, Stephens
provided somewhat equivocal testimony regarding his condition while working at
Virginia Fuel. He stated his symptoms
would appear “quicker”, but also stated the symptoms would subside when he was
not working. In short, we believe, based
on the totality of the evidence, the ALJ could reasonably conclude Stephens’
condition and impairment rating did not worsen during his six-month employment
with Virginia Fuel. Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). Again, this factual conclusion has not been
specifically challenged on appeal.
Having determined
Stephens’ brief employment with Virginia Fuel did not worsen his condition or
increase his impairment, the ALJ properly dismissed the claim. Campbell,
662 S.W.2d at 222. Stephens is correct
that Campbell was decided at a time when the Special Fund bore statutory
liability. However, the underlying
principle – that the “last” employer does not bear the entire liability for a
cumulative trauma injury – has not been derogated. In fact, the Kentucky Supreme Court
specifically affirmed the Court of Appeals’ reasoning in O.K. Precision Tool
& Die Co. v. Wells, 678 S.W.2d 397 (Ky. 1984), based not only on KRS
342.120 but also on public policy considerations. “The legislature intended to encourage the
employment of persons having health problems which could affect the degree of
disability in the event of subsequent injury.”
Id. at 400. Our appellate
courts have continued to rely on Campbell, and its reasoning, in cases
since the Special Fund’s liability was removed.
See CDR Operations, Inc. v.
Hale, 2014 WL 355788 (Ky. App. 2014)(“The Board’s reasoning was correct as
a matter of law under Campbell, which stands of the proposition that
liability should be apportioned to the employer based upon the percentage of
disability attributable to the work performed by the employee while in the
employ of that company.”). Under the
facts of this case, as determined by the ALJ, the claim against Virginia Fuel
was properly dismissed.
For the foregoing
reasons, the July 8, 2014 Amended Order on Remand of Hon. Jonathan Weatherby, Administrative Law Judge is hereby AFFIRMED.
ALVEY,
CHAIRMAN, CONCURS.
STIVERS, MEMBER, CONCURS IN RESULT
ONLY.
COUNSEL
FOR PETITIONER:
HON SHERRY BRASHEAR
PO BOX 1626
HARLAN, KY 40831
COUNSEL
FOR RESPONDENT:
HON H. BRETT STONECIPHER
300 E. MAIN ST. STE 400
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON. JONATHAN R. WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
