Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: June 27, 2014
CLAIM NOS. 201397272 & 201300941
BOBBY BISHOP PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
TECO COAL CORPORATION
and HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Bobby Bishop appeals from
the January 21, 2014 Opinion, Award and Order and the February 21, 2014 Order
on Reconsideration rendered by Hon. John B. Coleman, Administrative Law Judge
(“ALJ”). In the Opinion, Award and
Order, the ALJ awarded permanent partial disability benefits and medical
benefits for Bishop’s left knee injury, but dismissed his cumulative trauma
injury claim. The dismissal was
reaffirmed by the Order on Reconsideration.
Bishop now appeals, arguing the ALJ erred in dismissing his cumulative
trauma claim as barred by the statute of repose. Neither party has appealed the ALJ’s award
with respect to the knee injury. For the
reasons set forth herein, we affirm.
Bishop has worked in the coal mining
industry, primarily as a heavy equipment operator, for over twenty-six
years. He began working for the
Respondent, Teco Coal Corporation (“Teco”), in 2000. His job as a heavy equipment operator was
strenuous and involved heavy lifting, frequent climbing, and continuous
vibration.
Bishop’s cumulative trauma claim
alleged an injury to his cervical spine.
He could not recall exactly when he began to experience neck pain, but
testified he sought treatment with Dr. Thad Manning in October, 2009. He underwent fusion surgery, performed by Dr.
Leon Ravvin, in December, 2009. Bishop
was off work until February 18, 2010.
Though he continued to have pain and stiffness in his neck after
surgery, he returned to work. He
continued to work until June 20, 2013, when he was laid off, although Bishop
believed he would have been physically unable to continue working much
longer.
Dr. Manning’s records indicate Bishop
first complained of neck pain on November 4, 2009. A cervical MRI dated November 17, 2009
revealed a left paracentral disc herniation and moderate to severe canal
stenosis, as well as multilevel degenerative changes. Bishop was referred to Dr. Ravvin for
surgery, but returned to Dr. Manning on March 26, 2010 with continued
complaints of neck pain. Dr. Manning’s
office notes document complaints of neck pain from 2011 through August 12,
2013.
Dr. David Muffly performed an
independent medical evaluation (“IME”) which consisted of a physical
examination and medical records review.
He noted a cervical disc herniation requiring cervical fusion related to
cumulative trauma associated with a thirteen-year history of heavy equipment
operation. He assessed a 25% impairment
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”) for the cervical spine condition,
which he opined was related to Bishop’s work activities as a heavy equipment
operator.
Dr. John Vaughn also performed an
IME. He diagnosed a herniated cervical disc,
status post-fusion. He opined Bishop’s
neck condition was most likely caused by normal aging, but did not believe his
work from the time of the fusion surgery in 2009 to the end of his employment
in 2013 caused any additional injury. To
support this conclusion, he pointed to the lack of objective permanent change
in the neck condition since 2009. Dr.
Vaughn also assessed a 25% whole person impairment pursuant to the AMA Guides,
adding his impairment rating would have been the same at the time Bishop
reached maximum medical improvement following surgery.
Relying on Dr. Muffly’s opinion, the
ALJ first concluded Bishop suffered a work-related injury to his cervical
spine. However, he was also convinced by
Dr. Vaughn that “the entirety of the … impairment of 25% resulted from the
fusion surgery of 2009 with no additional impairment caused by his subsequent
employment with [Teco].” The ALJ then
concluded Bishop’s claim was barred by the statute of repose found at KRS
342.185(1), reasoning:
[T]he evidence clearly shows [Bishop] experienced
temporary total and permanent partial disability with his fusion surgery in
December 2009. The entirety of the 25%
impairment which he continues to have, came into existence at that time. He believed the condition to be related to
his work, but did not pursue a medical opinion at that time. Since the work
activities which produced the impairment and disability occurred prior to
December 2009 and the work activities following that time failed to lead to
additional impairment or disability, {Bishop’s] claim expired by virtue of the
statute of repose before his period of limitations began to run pursuant to Manalapan
Mining Co., Inc. v. Lunsford, 204 S.W.3d 601 (Ky. 2006). Additionally, since [Bishop] did not incur
any additional impairment for the condition during the two years prior to the
filing of his claim he simply does not have a cervical impairment on which an
award of benefits can be based pursuant to Kentucky Family Prac. v. Leach,
237 S.W.3d 530 (Ky. 2007).
Bishop filed a petition for
reconsideration, which was denied. In the
one-page petition, he asserted the ALJ misinterpreted Kentucky case law and
requested him “to reconsider his position and consider the neck injury as a
cumulative trauma claim that is not barred by the statute of repose.” In the Order denying the petition, the ALJ
restated the relevant facts and reaffirmed his reasoning with respect to the
statute of repose.
On appeal, Bishop does not directly
contest the reasoning underlying the ALJ’s application of the statute of
repose. Instead, he argues the statute
of repose was not preserved as an issue for determination, and was therefore
waived by Teco. Alternatively, he
believes Teco is barred by the doctrine of equitable estoppel from asserting a
statute of repose defense.
We disagree with Bishop that the statute
of repose was not preserved as an issue for determination. The Benefit Review Conference (“BRC”) Order
lists “statute of limitations” with respect to the cervical injury as a
contested issue. The applicable
provision, KRS 342.185, has been interpreted as both a statute of limitations
and a statute of repose. Manalapan
Mining Company, Inc. v. Lunsford, 204 S.W.3d 601, 605 (Ky. 2006). Furthermore, Bishop discussed the issue in
his brief before the ALJ, citing a prior Board opinion in Richard Dunn v.
Bledsoe Coal Corporation, 2012-00156 (March 29, 2013). In Dunn, a factually similar case, KRS
342.185 operated as a statute of repose to bar the claim. Clearly, even if not considered preserved by
the BRC Order, the issue was tried by consent of both parties. We are convinced the issue was properly
before the ALJ.
Turning to the issue of equitable
estoppel, we do not believe this issue has been properly preserved for
appellate review. In his brief to this
Board, Bishop points to conversations with a claims adjuster at HealthSmart
Casualty Claim Solutions, Teco’s insurance carrier, as evidence the company
insisted his neck condition was not work-related. Records indicate Bishop spoke with the
adjuster prior to his surgery, and expressed his belief his neck pain may relate
to a 2008 workers’ compensation claim for a low back injury, although he also
indicated it could be due to the vibrations incident to operating heavy
equipment. The adjuster instructed
Bishop to use his private health insurance for his neck and shoulder condition
because the 2008 claim involved only a low back injury.
The ALJ summarized the records submitted
from HealthSmart in the January 21, 2014 Opinion and Order. Despite this evidence being on the record,
Bishop did not identify equitable estoppel as a contested issue at the BRC or
raise it in his brief to the ALJ. Nor
did Bishop request further findings of fact concerning equitable estoppel in
his petition for reconsideration. See Halls Hardwood Floor Co. v.
Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000) (a petition for
reconsideration must be filed in order to preserve an issue for further
appellate review). As such, Bishop may
not raise the issue of equitable estoppel for the first time in his brief to
this Board.
For the foregoing reasons, the January 21,
2014 Opinion, Award and Order and the February 21, 2014 Order on
Reconsideration rendered by Hon. John B. Coleman, Administrative Law Judge are
hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON RANDY G CLARK
POB 1529
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON SARAH MCGUIRE
P O BOX 351
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B COLEMAN
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601