CUMBERLAND GAP PROVISIONS V EDITH PARSONS ; HON . JAMES KERR, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMULGA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
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CASE INANY CO URT OF THIS STA TE.
RENDERED : August 26, 2004
NOT TO BE PUBLISHED
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2003-SC-0461-WC
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CUMBERLAND GAP PROVISIONS
aY
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-0152-WC
WORKERS' COMPENSATION BOARD NO. 01-0554
V
EDITH PARSONS ; HON . JAMES KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant was aware of
her work-related gradual injury when reporting an incident that occurred in May, 1996,
and that her symptoms never resolved ; therefore, the period of limitations began to run
at that time . The Workers' Compensation Board (Board) affirmed . The Court of
Appeals reversed, however, on the ground that there was no evidence a physician
disclosed to the claimant the true nature of her injury or its cause until September, 1999 .
We affirm .
On April 24, 2001, the claimant filed a Form 101 in which she alleged a number
of injuries. Presently at issue is a cumulative trauma injury in the form of bilateral carpal
tunnel syndrome . The employer raised a limitations defense, asserting that the claimant
knew of her work-related injury as early as May 28, 1996 . The claimant asserted,
however, that Dr. Valencia first diagnosed work-related carpal tunnel syndrome and
informed her of the diagnosis in September, 1999 .
When her application was considered, the claimant was working full time at the
defendant-employer's pork processing plant . She had worked there since 1979, except
for a short period during which she operated a tanning salon. The jobs she performed
over the 19-year period included trimming, boning, clipping casings, packing, and
inspecting. All were described as high-volume work that involved lifting and
manipulating hams and the repetitive use of knives . Over the years, the claimant
prepared a number of accident reports concerning incidents that occurred while she
was working . The employer introduced several SF-1 (First Report of Injury) forms,
although a letter from the Department of Workers' Claims indicated that none had been
filed . Two incidents are of particular interest with respect to this appeal .
On December 17, 1993, the claimant's left hand began to hurt while she was
using a trimming knife. Later, she showed her foreman that it had a knot on it. She saw
Dr. Matheny but missed no work.
A May 29, 1996, accident report concerns a wrist and hand injury that occurred
on May 28, 1996. It indicates that the claimant's wrist and hand began to hurt while she
was using a trimming knife to trim hams . The activity that directly produced the injury
was described as "pulling hams ." The SF-1 indicates that Dr. Mappala examined the
claimant, took x-rays, and gave her two injections and a prescription . She missed no
work.
At the hearing, the claimant testified that at the time of the 1993 incident, the
hands of all workers who performed trimming would hurt . When asked whether she
knew at the time that the pain was due to the trimming and moving her hands, she
replied, "I didn't think about it, really, to tell you the truth." When asked whether she
knew at the time of the 1996 incident that the pain was caused by her work, her
response was the same. She testified that the pain was very severe, that the treatment
she obtained did not correct her problems completely, and that they did not resolve .
She acknowledged that she saw Dr. Carlson in 1998 but testified that he did not
conduct any tests, impose any restrictions, or tell her that her condition was caused by
her work. Nor did he tell her exactly what carpal tunnel syndrome was. She testified
that, in September, 1999, Dr. Valencia conducted electro-diagnostic tests, diagnosed
bilateral carpal tunnel syndrome, and informed her that the condition was caused by her
work .
Dr. Carlson examined the claimant on April 9, 1998, and noted a six-month
history of bilateral hand pain that extended into the neck and across the shoulders . It
was getting worse and accompanied by stiffness . He diagnosed chronic cervical strain
and chronic shoulder pain . Although noting that the Phalen's and Tinel's signs were
equivocal, he also diagnosed intermittent carpal tunnel syndrome. Dr. Carlson indicated
that the claimant was "doing quite well . . . given her job requirements ." He
recommended Tylenol for pain and noted that she would continue her job as a meat
trimmer .
Dr. Valencia first saw the claimant for wrist problems on September 2, 1999 .
EMG studies that were performed at the time were consistent with bilateral tibial
neuropathy, but later EMG's indicated bilateral carpal tunnel syndrome. Dr. Valencia
informed the claimant that the condition was caused by her work and referred her to Dr.
Tyler, who recommended surgery.
The ALJ found it significant that the claimant developed symptoms in both of her
wrists on May 28, 1996, while trimming hams. Furthermore, she testified that they
remained symptomatic thereafter . Relying on the May, 1996, First Report of Injury, the
AU determined that the claimant was aware of her work-related injury at the time from
"both from a lay and medical standpoint" but did not file a claim until 2001 . Therefore,
concluding that only 2119 of the claimant's impairment was due to trauma incurred in the
two-year period before the claim was filed, the ALJ awarded income benefits based on
that portion of the impairment . Special Fund v. Clark, Ky., 988 S.W.2d 487 (1999).
When denying the claimant's petition for reconsideration, the AU stated that the May,
1996, First Report of Injury was sufficient evidence that the claimant "understood her
symptoms were related to her work ."
We have determined that the period of limitations for a gradual injury begins to
run when a worker knows she has sustained a work-related injury, regardless of
whether she continues working . Alcan Foil Products v. Huff, Ky., 2 S .W .3d 96 (1999) .
Furthermore, notice and limitations are triggered when the worker becomes aware of
the existence of the condition and its cause, even if the symptoms later subside .
Holbrook v. Lexmark International Group, Inc . , Ky., 65 S .W.3d 908 (2001) . We
explained in Hill v. Sextet Mining Corp. , Ky., 65 S.W.3d 503, 507 (2001), that medical
causation is a matter for the medical experts . Therefore, a worker who has reported a
specific work-related incident is not required to self-diagnose the cause of a harmful
change that is associated with the incident as being a gradual injury rather than the
specific traumatic event. Id . Nor is she required to give notice of a gradual, workrelated injury until she is informed by a physician that such an injury is present . Id . The
same rationale applies to limitations .
Although the claimant reported a specific incident of wrist and hand pain that
occurred while she was working on May 28, 1996, there was no medical evidence of
bilateral carpal tunnel syndrome or any other gradual, work-related wrist or hand injury
at that time. As noted by the Court of Appeals, Dr. Carlson diagnosed intermittent
carpal tunnel syndrome in April, 1998, based upon a hand exam that revealed good
range of motion with mild osteoarthritis and Phalen's and Tinel's signs that he
characterized as "equivocal ." Nothing in his report attributes the condition to the
claimant's work. Under the circumstances, there was no substantial evidence that the
claimant was both diagnosed with carpal tunnel syndrome and informed that the
condition was caused by her work until Dr. Valenzia did so in September, 1999.
Therefore, the evidence compelled findings that the period of limitations began to run in
September, 1999, and that the entire claim was timely.
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Kamp T. Purdy
Ferreri & Fogle
300 E. Main Street, Ste . 500
Lexington, KY 40507
COUNSEL FOR APPELLEE:
John E . Anderson
Cole, Cole, Anderson & Nagle, PSC
P.O. Box 250
104 Knox Street
Barbourville, KY 40906
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