EDITH PARSONS v. CUMBERLAND GAP PROVISIONS; HONORABLE JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 30, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000152-WC
EDITH PARSONS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-00554
CUMBERLAND GAP PROVISIONS;
HONORABLE JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, SCHRODER, AND TACKETT, JUDGES.
SCHRODER, JUDGE.
This is a petition for review from a decision
of the Workers’ Compensation Board (the Board) affirming a
ruling of the Administrative Law Judge (ALJ) that the statute of
limitations had run on a portion of the employee’s injury claim.
We reverse and remand.
Claimant Edith Parsons (Parsons) began working for
Cumberland Gap Provisions (Cumberland Gap), a pork-processing
plant, in 1979.
She has been continuously employed by
Cumberland Gap, except for a short time when she was a selfemployed tanning salon operator.
All of Parsons’ jobs for
Cumberland Gap involved high volume work that included lifting
and manipulating hams and repetitive use of knives.
Parsons filed a workers’ compensation claim on
April 24, 2001, alleging injuries to her back, right leg/knee,
neck, both shoulders, arms, and bilateral carpal tunnel syndrome
due to cumulative trauma.
On June 14, 2002, the ALJ entered an
opinion, finding that Parsons had a 14% impairment attributable
to the carpal tunnel syndrome.
The ALJ attributed all of
Parsons’ cumulative trauma condition to her employment with
Cumberland Gap.
However, the ALJ found that Parsons was aware
that she had sustained a work-related injury on May 28, 1996,
which was not tolled by her continued employment.
Therefore,
the ALJ determined that Parsons could only be compensated for
the occupational disability attributed to repetitive trauma to
her hands and wrist for the two-year period beginning April 24,
1999, forward.
Parsons was awarded the sum of $12.06 per week.
Parsons and Cumberland Gap filed cross petitions for
reconsideration.
The ALJ denied Parsons’ petition but granted
Cumberland Gap’s petition, and recalculated the award based on
the fact that Parsons was still employed by Cumberland Gap.
ALJ awarded Parsons $3.01 per week.
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The
Parsons appealed to the Board.
The Board affirmed the
opinion and award in an opinion rendered on December 21, 2002.
The Board believed there was substantial evidence to support the
ALJ’s finding that Parsons discovered an injury in 1996, which
was work related.
The evidence relied upon by the ALJ is as follows:
The Administrative Law Judge finds it
significant that plaintiff first developed
symptoms in both wrists and hands around
May 28, 1996 while trimming hams and she
testified in her deposition that her
symptoms have never gone away since that
time. Proof of plaintiff’s continued
symptoms comes from the April 9, 1998
medical record of Dr. Carlson who noted
plaintiff’s complaints of bilateral hand
pain. It is further noted that a first
report of injury was completed on May 30,
1996 alleging a date of an occurrence of
May 28, 1996.
The ALJ concluded:
It is apparent to the undersigned and the
undersigned so finds that the plaintiff was
aware that she had sustained a work-related
injury at that date both from a lay and
medical standpoint.
In denying the petition for reconsideration, the ALJ
stated:
The simple fact is that plaintiff filed a
first report of injury for her symptoms in
May of 1996 which is sufficient to the
undersigned to be convinced that plaintiff
understood her symptoms were related to her
work.
On review, the Board cited the following evidence in
support of the ALJ’s findings:
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Parson’s own testimony indicates her
condition did not improve but worsened
following the 1996 injury. The history
received by Dr. Carlson also notes a
worsening in her condition. Dr. Carlson
diagnosed carpal tunnel syndrome and told
Parsons of his diagnosis. Parsons had
sufficient knowledge of a work-related
injury as reflected by her reporting of the
injury in 1996.
The Board concluded as follows:
We believe the report from Dr. Carlson,
which formed part of the basis for the ALJ’s
conclusion, is substantial evidence to
establish Parsons was aware of a workrelated injury. In her testimony, Parsons
attempted to discredit Dr. Carlson’s opinion
since he had not performed EMG/NCV studies,
but she acknowledged Dr. Carlson had
conveyed the diagnosis of carpal tunnel
syndrome to her. Dr. Carlson based his
opinion on the physical examination which
revealed equivocal Tinnel’s and Phalen’s
signs that he apparently felt sufficient to
arrive at a diagnosis.
Parsons argues that, while she did have left hand and
wrist pain in 1996, no EMG studies were performed until
September 1999 and she was not advised until then that carpal
tunnel syndrome was a repetitive motion injury and was caused by
her employment.
Parsons did admit that Dr. Carlson told her of
the carpal tunnel syndrome but stated that he did not explain
what it was or that it was work related.
Parsons cites Hill v.
Sextet Mining Corp., Ky., 65 S.W.3d 503 (2001), for the
proposition that she was not required to self-diagnose.
We have
reviewed the record, especially the April 9, 1998, report of Dr.
Carlson to which the ALJ and Board referred.
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We agree with
Parsons that, based on the holding in Hill, she did not have
knowledge of a work-related injury until September 1999.
In Hill the Kentucky Supreme Court addressed the issue
of when a claimant has knowledge of a work-related injury
sufficient to trigger the running of the statute of limitations
in a cumulative injury claim.
In Hill, the claimant was aware
of symptoms and even associated the symptoms with his work long
before he was evaluated by a doctor.
The claimant even sought
medical treatment after specific incidents of cervical trauma.
The claimant in Hill was even treated by physicians over the
years who encouraged him to quit working in the coal mines and
told him that the work was too stressful.
However, the
determinative factor for the Court in Hill was that there was no
evidence that any of the doctors ever informed the claimant that
he had a work-related gradual injury and that his work was
gradually causing harmful changes to his spine that were
permanent.
Id. at 507.
Hill holds that, in a cumulative trauma
case, “[m]edical causation is a matter for the medical experts”
and, therefore, a claimant is not required to self-diagnose the
cause of his symptoms.
Id.
We believe the facts in the case sub judice are
indistinguishable from the facts in Hill.
in her hands over a period of years.
Parsons suffered pain
The evidence establishes
that she discussed the pain in her hands with Dr. Carlson on
April 9, 1998.
We believe it is significant that Dr. Carlson
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stated in his report that, “Her hand exam reveals good ROM with
mild osteoarthritis.
Phalen’s and Tinel’s signs are equivocal.”
Equivocal means, “Having a double or several meanings or senses.
Synonymous with “ambiguous”.”
BLACK’S LAW DICTIONARY 542 (6th
ed. 1990).
In his report, Dr. Carlson states that his
“IMPRESSION” is (1) Cervical strain, chronic; (2) Shoulder pain,
chronic; (3) Intermittent carpal tunnel syndrome.
The
“DISPOSITION” then states:
Tylenol for pain. She can continue to work.
She is unable to take NSAIDS because of
gastric distress. She will continue her job
as a meat trimmer at Cumberland Gap
Provisions in Midddlesboro [sic]. I will be
happy to see her back in the future if her
symptoms do not improve. We will be more
aggressive with our work-up and possible
care in the future, but at this time I think
she is doing quite well given her age and
job requirements.
The function of our review “is to correct the Board
only where the Court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice.”
Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d
685, 687-688 (1992).
We believe the ALJ and the Board committed
an error in assessing the evidence so flagrant as to cause gross
injustice, in light of the holding in Hill.
First, this Court
is not convinced that Dr. Carlson actually made a diagnosis of
carpal tunnel syndrome, in that the signs were ambiguous at
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best.
However, it is within the sole discretion of the ALJ to
draw all reasonable inferences from the evidence.
Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
substitute our judgment in that regard.
We cannot
Nevertheless, there is
simply no evidence that Dr. Carlson told Parsons that she had a
work-related injury that was gradually causing her permanent
injury.
In fact, the “disposition” seems to contraindicate that
conclusion, in that Parsons was told to continue her work at
Cumberland Gap and that “she was doing quite well . . . given
her job requirements.”
It is undisputed that Parsons was not
informed by a physician of the true nature of her injury or that
it was work related, until September 1999.
Both the Board and
the ALJ relied upon the first report of injury to conclude that
Parsons had knowledge of the causation of her symptoms.
that conclusion ignores the holding in Hill.
To make
Parsons was not
required to self-diagnose that her work was causing her injury.
Based on Hill, the Court is of the opinion that
Parsons’ claim was timely filed and it was error for the ALJ to
determine otherwise.
As such, we reverse and remand to the ALJ
for a decision on the merits.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John E. Anderson
Barbourville, Kentucky
Kamp T. Purdy
Lexington, Kentucky
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