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
*
* * * * *
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