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April 11, 2014 201300455

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 11, 2014

 

 

CLAIM NO. 201300455

 

 

GLENN WOMBLES                                  PETITIONER

 

 

 

VS.         APPEAL FROM HON. STEVEN G. BOLTON,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

PERRY COUNTY COAL, INC.

and HON. STEVEN G. BOLTON,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.    Glenn Wombles (“Wombles”) seeks review of the opinion and order rendered October 28, 2013 by Hon. Steven G. Bolton, Administrative Law Judge (“ALJ”) dismissing his claim for failing to give timely notice of his alleged cumulative trauma injury to Perry County Coal, Inc. (“Perry County”) pursuant to KRS 342.185(1).  Wombles also seeks review of the December 11, 2013 order denying his petition for reconsideration. 

          On appeal, Wombles argues the evidence compels a finding no physician had unambiguously diagnosed a low back injury due to work-related cumulative trauma until he was evaluated by Dr. Robert Hoskins on March 6, 2013 and therefore the ALJ’s determination of untimely notice should be reversed.  We disagree and find substantial evidence supports the ALJ’s dismissal for lack of due and timely notice, and no contrary result is compelled.  

          The August 27, 2013 benefit review conference order and memorandum reflect Perry County did not pay Wombles temporary total disability benefits or medical expenses at any time.  It also reflects notice as one of several contested issues.   

          Wombles filed a Form 101 on March 25, 2013, alleging he sustained “cumulative trauma performing my job that caused injury to my lumbar spine” while working as an underground coal miner, which manifested on May 10, 2012.  Wombles notified Perry County of his alleged cumulative trauma injury in a certified letter dated March 19, 2013.  In support of the Form 101, Wombles submitted Dr. Hoskins’ March 7, 2013 report.  Dr. Hoskins diagnosed a lumbosacral sprain/strain; bilateral lumbar radiculitis; L5-S1 central disc herniation with inferior extrusion, spinal stenosis and degenerative disc disease; L5 spondylolysis; and multilevel lumbar degenerative disc disease.  He further opined Wombles’ injuries are “secondary to cumulative trauma and repetitive strain encountered over his many years of work in the coal-mining industry. . .”  Dr. Hoskins assessed an 8% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment.  He determined Wombles does not retain the physical capacity to return to his former job and assigned various restrictions.  Wombles also submitted a March 8, 2013 and August 23, 2013 addendum by Dr. Hoskins.   

          Wombles testified by deposition on August 12, 2013 and at the final hearing held August 27, 2013.  Wombles was born on September 26, 1967 and resides in Manchester, Kentucky.  He completed the eighth grade and does not have a GED.  Wombles has a commercial driver’s license and is a certified mine foreman.  His work history consists entirely of carpet installation, truck driving and coal mining.  He worked as a roof bolter in the coal mining industry from 1989 to 1997.  He then was self-employed as an over-the-road truck driver from 1997 to 2007. 

          Wombles began working for Perry County in 2007, initially operating a bridge carrier.  He eventually operated a ram car before becoming a section boss.  Wombles testified at length regarding the job requirements and physical demands of each position held.  He sought the position as section boss because the low back pain caused by operating a ram car was too great.  He mistakenly believed working as a section boss would be easier on his back.  However, due to inadequate staffing, Wombles continued to perform physically demanding tasks as a section boss.  Wombles testified he quit working for Perry County on May 10, 2012 due to his low back pain, but admitted his physician had not restricted him from work.  

          A couple of months after he quit Perry County, Wombles returned to over-the-road truck driving, but only on a part-time basis.  Wombles stated truck driving is easier than coal mining because it only requires sitting and driving.  However, he still experiences back pain which limits the amount of time he can drive.  Wombles currently experiences low back pain radiating into both legs, low back muscle spasms, and numbness in his legs.  He is unsure whether he will be able to continue to drive a truck due to his symptoms. 

          Wombles testified he first experienced back pain in 2009 when he operated a bridge carrier for Perry County.  He stated the pain radiated into both legs and was so severe he sought medical treatment in early 2010 with Dr. Neeraj Mahboob.  Dr. Mahboob ordered x-rays and an MRI, and prescribed medication.  Wombles eventually switched treating physicians in late 2012, and now sees Dr. Robert Hoskins on a monthly basis who prescribes medication.  At both the deposition and hearing, Wombles insisted he never experienced back pain or symptoms prior to 2009 and likewise denied ever seeking treatment for any back condition prior to 2010.  Wombles denied the following statement found in a January 2, 2010 note of Dr. Mahboob:  “Patient complaining of low back pain.  Injured ten years ago in mines.  Never W/U.”    

          Wombles quit Perry County while working as section boss in May 2012 due to the severity of his back pain.  He admitted he did not inform anyone with Perry County he was quitting due to his back condition, but simply provided his two weeks notice.  He explained “if I had told them that I was hurt in my back and I had back problems and filled out an accident report I was afraid that they would finally have found a reason to get rid of me, they would have fired me or something, so I just didn’t tell them . . .”  However, Wombles alluded to a previous incident where he told his superintendent he could not perform a certain task by himself because “my back hurts too bad.”  Wombles stated the superintendent “didn’t pay it no attention and I went on . . . it didn’t go no farther than that.”  There was no testimony regarding the time frame of this incident.     

          At his deposition, Wombles testified as follows regarding when he was first told by a physician his back condition was due to his work:

Q:  When was the first time, if ever, that any doctor related your back pain to your work?

 

A:   Probably 2010 when I went down there.  I’m guessing now, I don’t really know.  When I went down there in 2010 for my back they asked me if I needed to do some kind of something saying that it was hurt working.  I told them not to tell them because I was afraid they’d fire me so I don’t know if they put it in their records or what they done down there at Mahboob’s but I told them to try to keep it between us, you know.

 

Q:  So you thought your back was hurting because of your work at the time?

 

A:  Well, that’s when it started hurting, was in 2009, just gradually started hurting.  It wasn’t nothing all at once, it just started hurting gradually and it just led up, you know, to where it is now.

 

          At the hearing, Wombles testified as follows: 

Q:  Now, in that first record, he references . . . that you were injured 10 years ago in the mines?

 

A:  That’s - - that’s not true.  In fact, when I went down there, he told me, he said, “Do you want to do a report - - workers report from work?”  And I said, “No, because I - - I don’t want to be fired from my job, because that’s what” - - I’ve been there, worked in the mines long enough to (sic) if you get hurt in the coal mines, you hurt your back or something, they will find some way to get rid of you, lay you off or fire you or something for some reason or another.  It’s happened so many times in the past.  And I told them not to say nothing about anything and just keep it between us.

 

Q:  Well, let me get this clear.  What I think you’re saying is that Dr. Mahboob asked you if he - - if you wanted him to give you some type of work slip related to Perry County Coal and you said, no, let’s not mention it?

 

A:  No, he asked me if wanted - - do I need - - does he need to make a report and put me off on light duty for Perry County Coal or something like that, saying I got hurt there.  And I said, “I don’t want to tell them that I’m hurting in my back, because they’ll fire me.  I’m afraid I’ll lose my job.”

 

Q:  Did he ever tell you that your back pain was caused by your work in coal mining?

 

A:  Yes, it seems like he did. 

    

          Perry County filed the treatment records of Dr. Mahboob from Medical Associates of Southeast Kentucky which reflect Wombles treated at his office on fifteen occasions from January 2, 2010 through November 21, 2011.  Of those visits, Wombles treated with Dr. Mahboob on four occasions, with the remaining visits conducted by either Karen Cheek or Josie Bollig, APRNs.  The records reflect Wombles continually complained of low back pain which was regularly treated with medication. 

          Wombles first saw Dr. Mahboob on January 2, 2010, with complaints of low back pain and a sore throat.  Dr. Mahboob noted Wombles was “injured 10 years ago in mines never w/u.”  He diagnosed “LBp, chronic exac” and prescribed medication.  On January 16, 2010, Dr. Mahboob noted Wombles continued to experience low back pain radiating into his leg despite medication and ordered an MRI.  He diagnosed “LBP, exac on chronic?” and “RLE lumbar radiculopathy,” and prescribed medication.  A January 25, 2010 lumbar MRI demonstrated degenerative disc disease and disc herniation with moderate spinal canal narrowing at L5-S1.  On January 11, 2011, Josie Bollig noted Wombles is “asking about disability and how to get it for back, states worried because back has been hurting more lately and he believes it to be worse.  Hurts the most in am and when sitting, as he moves and walks he feels better.”  Thereafter, Wombles continued to treat with Dr. Wombles, Josie Bollig or Karen Cheek until November 21, 2012 and was treated with prescription medication.  The record reflects several diagnoses regarding Wombles low back including: chronic low back pain, lumbar radiculopathy, lumbago, “degeneration IV disc site uns,” “spinal stenos lumbar wo neur claud,” “uns thoracic/lumb neuritis/radicul,” and other symptoms referable to the back. 

          Perry County also filed the February 2, 2010 record from the Lake Cumberland Neurosurgical Clinic reflecting Wombles was referred there by Dr. Mahboob.  After a review of the MRI, epidural steroid injections were recommended, which he declined.  Perry County also filed the treatment records of Dr. Hoskins, reflecting he began treating Wombles on November 26, 2012 for back pain, and he regularly prescribed prescription medication.  

          In the October 28, 2013, opinion and order, the ALJ summarized Wombles’ deposition and hearing testimony, particularly those parts cited above.  He also summarized the medical evidence, including the treatment records of Dr. Mahboob.  The ALJ ultimately dismissed the claim in its entirety, finding Wombles failed to give notice of his alleged cumulative injury as soon as practicable after the happening thereof pursuant to KRS 342.185.

          The ALJ determined Wombles was advised by Dr. Mahboob from the inception of treatment on January 2, 2010 his low back condition was work-related.  He noted Dr. Mahboob offered to write an off-work slip which he declined.  The ALJ also noted Wombles provided no notice to the employer of the work-related low back condition until the Form 101 was filed on March 25, 2013, long after he was notified his condition was work-related, and over ten months after he ceased working there.  In the findings of fact and conclusions of law, the ALJ stated as follows:

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

 

1.  Facts as stipulated herein above.

 

2.   The Plaintiff knew on or about January 2, 2010 that he had sustained work related cumulative injury to his back through the opinion of his treating physician. Robinson v. Ms. Smith Bakeries, 2003-CA-002050-WC; Hill v. Sextet Mining, 65 S.W.3d 503 (Ky. 2002), Brown-Foreman Corporation v. Upchurch, 127 S.W.3d 615 (Ky. 2004).

 

3.  The Plaintiff failed to give notice of his alleged cumulative injury as soon as practicable after the happening thereof. KRS 342.185.

 

4.  The Defendant employer has been misled to its injury on the face of the record in that if an award were made, it would bear interest at 12% that the employer might not have incurred had it known of the claim, the employer was denied the opportunity to make timely investigation of Plaintiff’s claim, and the employer has had to expend money to defend the claim, when it may have been able to settle same had it been timely placed on notice of the alleged work related injury. KRS 342.200.

 

 

Wombles filed a petition for reconsideration, asserting essentially the same argument he now makes on appeal.  The petition was summarily denied by the ALJ on December 11, 2013. 

          On appeal, Wombles argues the ALJ erred in determining he failed to provide due and timely notice of his injury to Perry County.  Wombles asserts no physician definitely and unambiguously diagnosed a work-related cumulative trauma injury until he was evaluated by Dr. Hoskins on March 6, 2013.  Wombles argues his testimony regarding what Dr. Mahboob told him in 2010 is ambiguous at best.   Wombles also points out he was only treated by Dr. Mahboob on four occasions, and no mention of causation or work-relatedness is made in the fifteen treatment notes from January 2, 2010 through November 21, 2011. 

     Wombles also argues the ALJ erroneously placed emphasis on his own opinion his back symptoms were due to work since he is not a physician or medical expert, and cannot be expected to self-diagnose the cause of his problems.  The fact Wombles surmised his symptoms were work-related does not trigger the notice requirement.  Wombles likewise argues his testimony regarding what Dr. Mahboob told him does not create an inference “the physicians clearly told Plaintiff they agreed with him.”  Wombles argues pursuant to Hill v. Sextet Mining Corporation, 65 S.W.3d 503 (2006), Dr. Mahboob’s alleged comments were not sufficient to trigger the notice requirements of KRS 342.185(1) since the records do not reflect a work-related cumulative trauma diagnosis.

          Wombles, as the claimant in a workers’ compensation claim, bore the burden of proving each of the essential elements of his cause of action before the ALJ, including due and timely notice.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was unsuccessful in his burden, the question on appeal is whether the evidence is so overwhelming, upon consideration of the record as a whole, as to compel a finding in his favor.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Compelling evidence is defined as evidence which is so overwhelming no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  We find no contrary result is compelled.

          The ALJ, as fact-finder, is the sole judge of the weight and inferences to be drawn from the evidence and determines the quality, character, and substance of the evidence.  See Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence.  See Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  Where the evidence is conflicting, the ALJ may choose whom or what to believe.  Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).  Although an opposing party may note evidence supporting a conclusion contrary to the ALJ’s decision, such evidence is not an adequate basis for reversal on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).

          Notice is a factual determination which must be determined by the ALJ based on the evidence.  KRS 342.185(1) requires notice of an accident to be given to the employer as soon as practicable after the accident.  Implicit in the finding of a gradual injury is a finding no single instance of workplace trauma caused an injury of appreciable proportion.  Hill v. Sextet Mining Corp., supra.  For that reason, in cumulative trauma claims, the date triggering the obligation to give notice is the “manifestation of disability,” which is the date a worker first learns he has sustained a gradual injury and knows it is due to his work.  Alcan Foil Products v. Huff, 2 S.W.3d 96 (Ky. 1999).  In an unbroken line of cases from Hill v. Sextet Mining Corp., supra, forward, our Appellate Courts have determined, in claims involving cumulative trauma, a worker is not required to give notice until first informed by a physician the condition is work-related.  An employee is not prohibited from giving notice of a gradual injury at an earlier date if he suspects the associated symptoms are the product of work activities.  American Printing House for the Blind v. Brown, 142 S.W.3d 145 (Ky. 2004).   

     Here, Wombles alleged a cumulative trauma injury manifesting on May 10, 2012, the day he quit working for Perry County, in the Form 101 filed on March 25, 2013.  The form also indicates he provided notice of his injury to Perry County via certified letter dated March 19, 2013, approximately two weeks following Dr. Hoskins’ March 7, 2013 report.  The question before this Board is whether the notice requirement pursuant to KRS 342.185(1) was triggered at any time prior to Dr. Hoskins’ evaluation and report in March 2013.  We find substantial evidence in the record supports a finding it was triggered at an earlier date, i.e., Wombles knew on or about January 2, 2010 he had sustained work-related cumulative injury to his back through the opinion of his treating physician.

     Prior to Dr. Hoskins’ March 2013 evaluation, it is undisputed Wombles received treatment for his low back pain after January 2, 2010, continuing throughout the remainder of his employment with Perry County and after he quit in May 2012.  We acknowledge Dr. Mahboob’s treatment records do not reflect a diagnosis of a gradual work-related injury.  However, our review must necessarily include Wombles’ deposition and hearing testimony regarding the conversations he held with Dr. Mahboob in January 2010.       

          The medical records documenting continued treatment for low back pain subsequent to January 2010, coupled with Wombles’ testimony, constitute substantial evidence supporting the ALJ’s determination he knew on or about January 2, 2010 he had sustained a work-related cumulative injury to his back through the opinion of his treating physician.  The medical records establish Wombles began seeking medical treatment for low back symptoms on January 2, 2010 while he was employed by Perry County.  Those records also indicate in January 2011, Wombles inquired about “disability” regarding his back since he believed his symptoms were worsening. 

          Wombles admitted at the hearing and his deposition Dr. Mahboob advised him his back condition was work-related.  At his deposition, Wombles replied “probably 2010 when I went down there” when asked when the first time any doctor related his back pain to his work.  Likewise, at the hearing, Wombles replied “Yes, it seems like he did” when asked whether Dr. Mahboob advised him his back pain was caused by his work in coal mining.  Wombles testified at both the hearing and deposition Dr. Mahboob or his colleagues asked if he needed a work slip saying he injured his back while working and he declined specifically requesting them “to try to keep it between us” and “not to say nothing about anything and just keep it between us.”  Wombles stated on several occasions he did not want his work to know of his back condition due to his fear of being fired.

          Therefore, the medical records and Wombles’ own testimony constitute substantial evidence supporting a finding his alleged cumulative trauma disability manifested on or about January 2, 2010, triggering his obligation to provide notice as soon as practicable in accordance to Hill v. Sextet Mining Corp., supra, and Alcan Foil Products v. Huff, supra.  We likewise find the ALJ committed no error in concluding Wombles did not provide notice as soon as practicable since Perry County was not notified of the injury until March 2013.  Wombles continued working for over two years for Perry County without notifying them of his injury, and waited nearly an additional year after he quit work to provide notice through either filing the Form 101 or sending the certified letter.   

          Accordingly, the opinion and order rendered October 28, 2013 and the December 11, 2013 order denying Wombles’ petition for reconsideration by Hon. Steven G. Bolton, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

 

HON SHERRY BRASHEAR

PO BOX 1626

HARLAN, KY 40831

 

COUNSEL FOR RESPONDENT:

 

HON SARAH M MCGUIRE

PO BOX 351

PIKEVILLE, KY 41502

 

ADMINISTRATIVE LAW JUDGE:

 

HON STEVEN G BOLTON

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601