*/
Workers’
Compensation Board
OPINION ENTERED: February
10, 2017
CLAIM NO. 201401458
DWIGHT ISAAC PETITIONER
VS. APPEAL
FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE
LAW JUDGE
ENTERPRISE
MINING CO. LLC.
HON.
JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Dwight
Isaac (“Isaac”) appeals from the June 14, 2016 Order rendered by Hon. Jane Rice
Williams, Administrative Law Judge (“ALJ”), dismissing his claim for benefits
against Enterprise Mining Co. LLC (“Enterprise Mining”). Isaac argues the ALJ erred in determining the
date his cumulative trauma injuries manifested.
For the reasons set forth herein, we affirm.
Isaac worked as a heavy equipment
operator for Enterprise Mining from 2005 through July 23, 2012. He left work for non-work-related cardiac
problems in July 2012, and was released to return to work in October 2012. However, during this period, Enterprise
Mining conducted mass layoffs and Isaac never returned to work there. Instead, on October 28, 2012, he began
working for Pine Branch Mining as an excavator operator. He worked for Pine Branch Mining until
February 6, 2015.
On July 18, 2014, Isaac filed a Form
101 against Enterprise Mining, alleging cumulative trauma injuries to his back
and neck. Among other medical records
which are not pertinent to this appeal, he attached the report of a lumbar MRI that
was performed on June 26, 2012, which revealed spinal stenosis and neural
foraminal narrowing at L1-2, L2-3, L3-4, L4-5 and L5-S1. Because he was working for Pine Branch Mining
at the time he filed his Form 101, Isaac requested the claim against Enterprise
Mining be placed in abeyance.
Isaac then filed an
injury and a hearing loss claim against Pine Branch Mining (Claim Number
2014-02185) on December 12, 2014.
Enterprise Mining was not joined in this claim. Isaac alleged cumulative trauma injuries to
his back and neck, and attached the report of Dr. Robert Hoskins. Dr. Hoskins evaluated Isaac on September 24,
2014. He diagnosed a cervical sprain and
radiculitis, cephalgia, compression deformities at T8 and T9, thoracolumbar spondylosis,
lumbosacral sprain and radiculitis, multi-level spinal stenosis and
neuroforaminal stenosis at L2-3 and L4-5.
He opined Isaac suffered cumulative trauma over his work life as an
equipment operator, which caused these conditions.
The claim against Pine Branch Mining
was ultimately settled. In a settlement
agreement approved by Hon. Jeannie Owen Miller, Administrative Law Judge, it
was noted Isaac alleged, “occupationally related hearing loss and cumulative
trauma injuries to the lumbar spine, thoracic spine and cervical spine
manifesting on or about May 30, 2014 or February 6, 2015.” The agreement was approved July 17, 2015.
Meanwhile, the claim against
Enterprise Mining proceeded. At his
deposition on November 18, 2014, Isaac stated he was being treated for back
pain by his family doctor, Dr. Darian Ratliff. He stated that he discussed the cause of his
back conditions with Dr. Ratliff earlier in 2014, but was unable to provide a
specific date of this conversation.
Isaac further testified he began experiencing low back pain around May
2012. He visited Dr. Kevin Davis and was
sent for a MRI on June 26, 2012, while he was still working for Enterprise
Mining. Dr. Davis referred Isaac to Dr.
Phillip Tibbs. Isaac stated neither Dr.
Davis nor Dr. Tibbs ever discussed the cause of his back pain with him.
The ALJ ultimately dismissed Isaac’s
claim against Enterprise Mining. First,
she concluded KRS 342.270 requires only the joinder of all known claims against
a single employer; however, she noted 803 KAR 25:010 §2(3)(a) requires the
joinder of “all persons … against whole the ultimate right to relief pursuant
to KRS Chapter 342 may exist.”
Nonetheless, the ALJ concluded the regulation “cannot grant more than
has been created through the statute.”
Therefore, the ALJ reasoned that Isaac’s failure to join Enterprise
Mining in the action against Pine Branch Mining does not bar the proceedings
against Enterprise Mining.
The ALJ next determined the
manifestation date of Isaac’s alleged cumulative trauma injuries. She rejected Isaac’s contention that the
injuries manifested on June 26, 2012, the date of his lumbar MRI, because there
is no indication Dr. Tibbs or Dr. Davis informed him the conditions are
work-related. Instead, she concluded the
date of manifestation is September 24, 2014, the date of Dr. Hoskins’
report. Isaac was employed by Pine
Branch Mining on this date. Citing Hale
v. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015), the ALJ concluded Pine
Branch Mining is solely liable for Isaac’s cumulative trauma injuries because
it was his employer on the date of manifestation.
No petition for reconsideration was
filed. On appeal, Isaac argues the ALJ
erred in determining the date of manifestation.
We disagree.
In a cumulative trauma
injury claim, the date of manifestation for purposes of notice and statute of
limitations is the date the claimant is advised by a physician that he has an
injury and it is work-related. Consol
of Kentucky v. Goodgame, 479 S.W.3d 78, 82 (Ky. 2015). The ALJ determined the date of manifestation
of Isaac’s injury is the date of Dr. Hoskins’ report, noting it is the first
medical report to discuss causation.
Isaac also testified that, though he was treating with Dr. Tibbs and Dr.
Davis, neither physician informed him of the cause of his back pain. This proof constitutes the requisite
substantial evidence to support the ALJ’s determination of the date of
manifestation. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
Recently, the Kentucky Supreme Court
ruled that the employer on the date a cumulative trauma injury manifests is
liable for the entirety of the award, “Nothing in KRS Chapter 342 limits the
liability of the employer, in whose employ the date of manifestation occurred,
to the percentage of the claimant’s work-life spent there.” Hale v. CDR
Operations, Inc., 474 S.W.3d at 138 (Ky. 2015). Isaac was employed by Pine Branch Mining on
the date his condition manifested.
Therefore, it is solely liable for Isaac’s cumulative trauma injuries and
Enterprise Mining bears no responsibility.
Isaac responds that the Supreme
Court’s decision in Hale had not been rendered at the time he filed his
claims against Enterprise Mining and Pine Branch Mining, and therefore cannot
control the case. Even if Hale is
interpreted as creating a new rule of law, as opposed to merely interpreting
KRS Chapter 342 as it has existed since well before this claim was filed,
judicial decisions are given retroactive application unless the Court
specifically so limits. Branham v. Stewart, 307 S.W.3d 94 (Ky. 2010).
The Court in Hale did not limit the holding in that manner.
The employer on the date of
manifestation is solely liable for the entirety of a claimant’s cumulative
trauma injuries, despite the fact prior employment may have contributed to the
condition. Hale, id. In this claim, Pine Branch Mining was Isaac’s
last employer and therefore is solely liable.
The claim against Pine Branch Mining was settled for injuries to his
lumbar, thoracic and cervical spine, and he was compensated for this
injury. In this current claim against
Enterprise Mining, he cannot be again compensated for the same injuries to his
lumbar, thoracic and cervical spine. We
base our decision on these principles.
Because the parties did not specifically raise or brief the joinder
requirements of 803 KAR 25:010 §2(3)(a), we do not address this portion of the
ALJ’s opinion.
Accordingly, the June 14, 2016 Order
rendered by Hon. Jane Rice Williams, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON
GRETCHEN N GULLETT
128
SHOPPERS PATH
PRESTONSBURG,
KY 41653
COUNSEL FOR RESPONDENT:
HON
BONNIE HOSKINS
PO
BOX 24564
LEXINGTON,
KY 40524
ADMINISTRATIVE LAW JUDGE:
HON
JANE RICE WILLIAMS
PREVENTION
PARK
657
CHAMBERLIN AVENUE
FRANKFORT,
KY 40601
