EVA JO LANHAM v. CITY OF PARIS; HON. LAWRENCE F. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000579-WC
EVA JO LANHAM
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-67705
CITY OF PARIS; HON. LAWRENCE F. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Eva Lanham petitions for review of an
opinion of the Workers’ Compensation Board (Board) of February
11, 2005, which affirmed the dismissal of her claim for
permanent disability benefits.
An Administrative Law Judge
(ALJ) found that Lanham’s claim was barred by the statute of
limitations as to the date that her cumulative neck injury
became manifest for purposes of KRS 1 342.185.
The Board
determined that there was sufficient evidence to support the
findings of the ALJ.
As we have found no error in the Board’s
application of the law or in its assessment of the evidence, we
affirm.
See, Western Baptist Hospital v. Kelly, 827 S.W.2d 685,
687 (Ky. 1992); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Lanham works as an emergency dispatcher, a job that
she has performed since 1990 for the appellee, the city of
Paris.
Most of her ten-hour shifts involve answering and
talking on the telephone.
She is frequently required to perform
her phone duties while simultaneously typing information into
one of two computers near her work station.
Because she has not
been provided with a headset, she accomplishes her tasks by
cradling the telephone between her shoulder and left ear,
thereby freeing her hands for entering data into the computer.
In 1999, after falling at work and hurting her back,
Lanham began treatment with Dr. Oscar Perez.
A few months after
the fall, she began having neck pain and daily headaches.
At
first, she attributed the pain and headaches to the fall.
However, Dr. Perez was convinced that her symptoms were not
related to the fall but that they were caused by the repetitive
effect of the manner in which Lanham held the telephone between
her head and shoulder.
1
In late November 2000, Lanham first
Kentucky Revised Statutes.
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provided the city of Paris with a report from Dr. Perez which
addressed the cumulative nature of her neck injury.
Dr. Perez treated Lanham’s symptoms with pain
medication and physical therapy.
Nevertheless, her headaches
continued to worsen, and she missed several weeks of work in the
fall of 2002.
She received temporary total disability (TTD)
during the period from October 9, 2002, through November 10,
2002.
After this absence from work, Lanham returned to her
duties where she continues to be employed.
On January 9, 2004, Lanham filed an application for
workers’ compensation benefits based on her neck and shoulder
pain.
She attached a medical opinion of Dr. James Owen, who
reported that Lanham had sustained a 6% permanent impairment
attributable to her “persistent pain from muscle spasm
associated with chronic neck tilting.”
The city of Paris filed a special answer alleging that
the claim was time-barred.
It also submitted a report by Dr.
Timothy Kriss, a neurosurgeon who had examined Lanham and
reviewed the medical reports of Dr. Perez and Dr. Owen.
Dr.
Kriss agreed that Lanham’s neck pain was “a direct consequence
of her daily work activities as a dispatcher.”
However, he
found “no significant clinical findings with no neurologic
impairment and no documented significant alteration in
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structural integrity.”
Dr. Kriss’s believed that Lanham had no
permanent impairment under the AMA Guides:
This is consistent with the normal xrays, normal MRI scan, normal physical
examination, and normal neurological
examination. On the other hand, one could
make an argument, as Dr. Owen has, for
assigning DRE category 2, on the basis of
clinical history and examination compatible
with a specific injury. I think this is a
valid argument, however, [Lanham] has many
documented episodes of becoming completely
“symptom free” during respite from work. In
my mind this establishes the fact that her
symptoms are not permanent, and therefore
not worthy of permanent impairment. I think
her symptoms will resolve with optimal
workplace ergonomics.
Before the ALJ, conflicting evidence was presented as
to the actual “manifestation date” of Lanham’s injury -– the
date on which she was informed by her doctor that her neck pain
and headaches were caused by the repetitive nature of her work.
The manifestation date is critical to the issue of limitations.
Lanham’s claim was filed within two years of the termination of
the voluntary TTD payments made by her employer.
However, the
payment of TTD would not toll the two-year statute of
limitations if it were commenced more than two years after
Lanham was advised of the cumulative nature of her neck
condition.
See, Lawson v. Wal-Mart Stores, Inc., 56 S.W.3d 417
(Ky.App. 2001).
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In her application for benefits, Lanham listed July
17, 2000, as the date of her injury.
In her deposition, she
again indicated that it was in July 2000 that Dr. Perez first
expressed his opinion that her neck problems and headaches were
attributable to the manner in which she used the telephone
rather than to the fall that she had experienced the previous
year.
At the hearing before the ALJ, Lanham contended that it
was in November of 2000 (the date which coincided with her
notice to her employer) that Dr. Perez diagnosed her neck
problems as arising from a cumulative injury due to the nature
of her work.
The ALJ resolved the conflicting dates by reference to
Dr. Perez’s medical reports.
Relying on the reports associated
with Lanham’s visits on September 7, 2000, and September 20,
2000, the ALJ found “that both [Lanham] and her physician were
adequately apprised of the fact that her symptoms were caused by
her work” well before October 9, 2000.
of September 27, 2004, at p. 10.)
(ALJ’s Opinion and Order
Thus, as payment of TTD was
first made on October 9, 2002, it commenced more than two years
after Lanham knew of her injury -- a fact which prevented the
tolling of the statute of limitations.
The ALJ dismissed
Lanham’s claim, rendering moot the issues of extent and duration
of disability; nevertheless, he noted that he found Dr. Kriss
more persuasive as to the issue of impairment.
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The Board agreed with the ALJ and concluded that Dr.
Perez’s medical reports constituted substantial evidence that
Lanham’s condition became manifest more than two years prior to
the payment of TTD.
This appeal followed.
Lanham correctly cites Hill v. Sextet Mining, 65
S.W.3d 503 (Ky. 2001), as holding that a limitations period does
not commence to run until a claimant is diagnosed with a gradual
injury.
Medical causation is a matter for the
medical experts and, therefore, the claimant
cannot be expected to have self-diagnosed
the cause of the harmful change to his
cervical spine as being a gradual injury
versus a specific traumatic event. He was
not required to give notice that he had
sustained a work-related gradual injury to
his spine until he was informed of that
fact.
Id., at p. 507.
However, Lanham argues that the evidence was
confusing and conflicting as to when Dr. Perez first
communicated his diagnoses to her; therefore, the ALJ “should
have taken into consideration when [she] filed the First Report
of Injury and the fact that it was based on the November 20,
2000, medical report.”
(Appellant’s brief at p. 6.)
The ALJ is the sole judge of the facts where the
evidence is conflicting.
S.W.2d 308 (Ky. 1993).
Square D. Company v. Tipton, 862
The ALJ could have found from the
evidence that Lanham was apprised of the cause of her neck pain
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in November 2000.
However, as the Board concluded, Dr. Perez’s
medical records constitute substantial evidence to support the
ALJ’s finding that the doctor had informed Lanham of the cause
of her injury no later than September 20, 2000, signifying that
TTD payments would have had to commence within two years of that
date (i.e., no later than September 20, 2002), in order to toll
the running of the statute of limitations.
TTD payments
commenced later -- on October 9, 2002, thus failing to toll the
statute of limitations.
The following portions of the doctor’s
records are consistent with the ALJ’s findings:
Mrs. Lanham comes in today, very upset about
the report made in regard to her complaints
of back pain for her workman’s compensation.
She is upset that her neck pain was not
addressed whatsoever. . . . In all fairness,
Mrs. Lanham has not had her neck looked at
by me previously and her only complaints had
been of her back.
Clearly, she states that 7-8 months
ago, when she fell at work, she did hit her
head on the left side and wonders if that
may have “trigger[ed]” her current symptoms
of chronic daily muscle tension, headache,
neck pain and shoulder pain. She does state
that it has grown worse during this time
frame. She has worked at the Paris Police
Department for 10 years as a dispatcher.
[She] does state that sitting for prolonged
periods makes her neck pain and back pain
worse. She reports that she has requested a
head set before answering phone as [sic]
many times of the city, but they have chosen
to ignore her request. She does answer
phone all day long with her left shoulder
while she types on the computer so she holds
the hand piece to her ear by elevating the
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left shoulder and pinning the handpiece
between the two. As a result, she
constantly complains of left shoulder pain,
left-sided pain and muscle tension headache
symptoms.
. . . .
I did give her stretching exercises for the
neck and shoulders, specifically designed
for desk and computer work. She also may
follow-up with me for OMT so that I can show
her some exercises such as isometric
stretching that she can perform not only
while at work but at home in order to manage
and minimize the myofacial pain which she
has been experiencing. I clearly believe
that her muscle tension headaches are due to
these myofacial tissue texture changes.
Clearly her work, and particularly the
sedentary work as well as elevating her left
shoulder in order to hold the hand piece of
the phone to her ear, is exacerbating this
and she needs to change these habits at work
in order to help minimize exacerbations.
(Dr. Perez’s medical notes dated September
7, 2000.) (Emphasis added.)
Mrs. Lanham comes in today for OMT, as
discussed and outlined on previous dictation
from 9/7/00. In review, over the last 8-9
months, Mrs. Lanham has suffered from daily
headaches which she states start on the left
base of her skull posteriorly, and
throughout the day radiate over the top of
her head and into her forehead by the end of
her work shift. She works 8-10 hours as a
dispatcher/operator/secretary for the Paris
Police Department and states that because
they have chosen not to purchase head phones
for helping answer the phone, she spends a
great deal of time answering the phone and
holding the receiver to her left ear by
raising her left shoulder which has
exacerbated this problem.
. . . .
-8-
[T]here is no question that her work
situation is exacerbating this problem. Her
daily headaches are due to chronic muscle
tension cephalgia brought on by bad
ergonomics at work. (Dr. Perez’s notes
following Lanham’s visit on September 20,
2000.) (Emphasis added.)
The Board correctly found this evidence sufficient to
support the ALJ’s finding that Lanham was aware of her symptoms
and the cause of those symptoms for more than two years prior to
her receipt of TTD in October 2002.
Thus, the statute of
limitations was not tolled, and her claim was filed too late.
We affirm the decision of the Workers’ Compensation
Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Theresa Gilbert
Ann F. Batterton
Lexington, KY
Marcus A. Roland
Lexington, KY
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