Opinion
No. 2000-CA-000597-WC.
November 9, 2000. Modified November 22, 2000. Ordered Not For Publication by Supreme Court File No. 2000-SC-001094 and 00-1122-WC.
Petition for Review of a Decision of the Workers' Compensation Board, Action NO. WC-98-83394.
Richard M. Joiner, Madisonville, Brief for Appellant.
John C. Morton, Samuel J. Bach, Henderson, Brief for Appellee Sextet Mining Corporation.
Before COMBS, JOHNSON and KNOPF, Judges.
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
Jerry W. Hill brings this petition for review from an opinion of the Workers' Compensation Board rendered on February 4, 2000. The Board's opinion reversed the Administrative Law Judge's opinion and award insofar as the ALJ determined that Hill had given appellee Sextet Mining Corporation proper notice of his cervical neck injuries and, further, vacated and remanded the opinion and award insofar as the Board determined that the ALJ had failed to consider Hill's pre-existing condition of spondylolisthesis.
The forward movement of the body of one of the lower lumbar vertebrae on the vertebra below it, or upon the sacrum.
Hill spent approximately 26 years working in coal mining. He began working for Sextet Mining in 1986. On September 14, 1998, Hill filed a workers' compensation claim form alleging entitlement to workers' compensation benefits for injuries incurred on February 22, 1997, June 26, 1997, and February 11, 1998. Hill claimed that he had occupational disability due to injuries to his middle finger on the right hand, his cervical spine, and his lower back, and that he was totally occupationally disabled as a result of the stated injuries and/or the result of cumulative trauma which became manifest in disability on February 11, 1998. In defense, Sextet Mining argued that Hill gave no notice of the injury to his cervical spine, and that all of his occupational disability was pre-existing active occupational disability and noncompensable. The claim was assigned to an Arbitrator but, pursuant to motion, was transferred to the ALJ for a hearing.
On June 30, 1999, the ALJ rendered an opinion and award determining that Hill had given "due and timely notice of his cervical spine injury"; that Hill's "low[er] back and cervical spine conditions [had] been substantially caused by his work in the underground coal mines culminating in a manifestation of disability on February 11, 1998"; that as a result of his lower back and cervical spine injuries Hill had a "permanent disability rating and [had] a complete and permanent inability to perform any type of activity which would allow him to provide services to another in return for remuneration on a regular and sustained basis in a competitive economy" and "is totally occupationally disabled"; that Hill "did not have [a] pre-existing active occupational disability"; and that Hill's "total occupational disability [was as] a result of the cumulative trauma to his low[er] back and neck which manifested itself in disability on February 11, 1998." The ALJ awarded Hill the sum of $465.36 per week, as well as medical, surgical and hospital treatment.
Sextet filed a petition for reconsideration with the ALJ, who denied the petition by order entered August 10, 1999. Sextet thereafter appealed to the Board. On February 4, 2000, the Board rendered an opinion affirming the ALJ in part, reversing in part, and remanding. The Board reversed the ALJ's finding that Hill had given Sextet Mining due and timely notice of his neck condition following the disabling reality of the condition becoming manifest. Further, the Board determined that the ALJ erred in failing to properly consider Hill's pre-existing spondylolisthesis and remanded for additional consideration of this issue pursuant to KRS 342.730(1)(a), as amended December 12, 1996. This petition followed.
First, Hill contends that the Board erred in reversing the ALJ's determination that he had given sufficient and timely notice with respect to his cervical spine cumulative trauma injury. The ALJ found as follows:
[Hill] gave due and timely notice of his cervical spine injury. [Hill] has testified that he gave verbal notice on numerous occasions of the work-related injury to his cervical spine. Although he is somewhat vague in the dates, I am convinced that he gave adequate notice of his cervical spine injuries. There was no testimony to rebut his evidence regarding verbal notice.
The ALJ's finding was based upon the testimony of Hill. For example, at the May 5, 1999, ALJ hearing, Hill testified as follows:
Q. Did your bosses know about the problems that you had with bumping your head and neck underground?
A. I had told them before that I had hit my head, but you know, you can't take off from work every time the least little thing happens. If you did, you wouldn't be a foreman, you would be on the street looking for a job.
. . .
Q. You said you had told somebody about various problems you had with your neck, could you be more specific about who it was that you talked to at the mines?
A. I told the mine foreman before and the safety director I had hurt my neck, and they said to just fill out an accident report, but I didn't fill out an accident report every time I got hurt. Like I said, you can't keep filling out accident reports on a company you work for or keep going to the doctor, you won't be there long. I tried to do a good job, and I tried to stay on the job.
However, it is uncontested that in his report of injury to Sextet Mining following his February 11, 1998, injury, Hill did not report an injury to his neck or cervical spine.
The Board reversed the ALJ's finding that Hill had given timely notice of his neck injury to Sextet Mining. In this regard, the Board stated as follows:
KRS 342.185(1) provides, in part, that:
[N]o proceeding under this chapter for compensation of an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof . . . [emphasis original].
It is well settled that in cases of cumulative trauma, the date for determining whether notice is timely is the date on which the disabling reality of the cumulative trauma condition becomes manifest. Randall Co. v. Pendland, Ky.App., 770 S.W.2d 687 (1989). The ALJ specifically found that Hill's cumulative conditions became manifest on February 11, 1998. We do not believe that a claimant can reasonably give notice of a cumulative trauma condition prior to the manifestation of the disabling reality thereof.
One of the essential purposes of the notice provisions of KRS 342.185 is to afford the employer the opportunity to make a prompt investigation and to place the employee under the care of a competent physician in order to minimize his disability. We believe these purposes would not be served by allowing the claimant to rely upon notice given years prior to the date on which his cumulative trauma became manifest. In cumulative trauma claims, there is a fundamental change in the nature of the condition on the date that it becomes manifest such that it is permanently disabling. When Hill gave notice of his neck problems, there was no permanent disability. When that disability becomes manifest, the claimant must give notice to the employer so that the employer may investigate the claim and attempt to minimize the claimant's disability. Furthermore, we believe it would be unreasonable to allow notice of minor injury to serve as notice of any injury occurring to the same part of the body for an indefinite time in the future. The evidence is uncontradicted that Hill did not give notice of his neck condition after the date that the disabling reality of that condition became manifest. We must therefore reverse the ALJ on this issue.
Hill attributes his cervical neck injuries to repeated incidents of bumping his head against the mine ceiling during his long mining career, and the case was practiced as such. Thus, the alleged injury to Hill's neck involves, a "wear and tear", "mini-trauma", or "cumulative trauma" issue. In the case relied upon by the Board, Pendland, supra, a punch press operator, over a 26-year career, developed a degenerative arthritis condition in her hand. It could not be conclusively determined whether work had caused the condition; however, it was established that the condition was aggravated by the requirement that the worker perform a repetitive maneuver up to 2,000 times per day. There was no single, obvious, occurrence of an accident or injury allowing for the convenient application of KRS 342.185. In Pendland, this Court held that "where the injury is the result of many mini-traumas, the date for giving notice and the date for clocking a statute of limitations begins when the disabling reality of the injuries becomes manifest." However, this Court made clear that this was not an unalterable rule by further stating that "a date earlier than the last work day may be proven to be applicable in some situations, such as by a period of temporary or partial disability caused by the series of mini-traumas."
Pendland at 688.
Id.
In Alcan Foil Products v. Huff, a similar situation arose. In that case, workers in the aluminum industry were exposed to loud noise for many years in their work, and that exposure caused each worker to sustain a work-related hearing loss. In Alcan Foil, the Supreme Court held that for purposes of triggering the statute of limitations provisions of KRS 342.185, the limitations period is triggered when a "worker discover[s] that an injury has been sustained." While Alcan Foil is a statute of limitations case, it relates its limitations analysis to the notice provisions of KRS 342.185, and to Pendland, as follows:
Ky., 2 S.W.3d 96 (1999).
Alcan Foil at 101.
This conclusion [that the limitations period is triggered when a worker discovers that an injury has been sustained] is strengthened by the fact that Pendland also determined that the notice requirement arose with the manifestation of disability. One of the purposes of the notice requirement is to give the employer an opportunity to take measures to minimize the extent of the worker's impairment and, hence, the employer's liability. Harlan Fuel Company v. Burkhart, Ky., 296 S.W.2d 722, 723 (1956). To accomplish that purpose, notice must be given when the worker discovers that a gradual work-related injury has been sustained [emphasis added].
Alcan Foil at 101 n. 2.
We are persuaded that the Board, as noted by dissenting Board Member Lovan, did not properly consider Alcan Foil's clarification of Pendland. The Board stated that it "do[es] not believe that a claimant can reasonably give notice of a cumulative trauma condition prior to the manifestation of the disabling reality thereof," and concluded that Hill could not have given proper notice because, as specifically found by the ALJ, the disabling reality of the neck injury did not occur until February 11, 1998. However, Alcan Foil clarifies that "manifestation of disability" refers to "symptoms which cause a worker to discover that an injury has been sustained." In summary, we interpret Alcan Foil to provide that notice is appropriate when there is a manifestation of the physical symptoms of a cumulative trauma injury.
Alcan Foil, supra; see also Special Fund v. Clark, Ky., 998 S.W.2d 487 (1999).
Hill testified that for a period prior to February 11, 1998, he experienced the symptoms of his cervical neck injury. We are convinced that during this period Hill was in substantially the same circumstances as the workers in Alcan Foil. Inasmuch as Alcan Foil held that the statute of limitations period was triggered by the manifestation of the symptoms of injury, we conclude that Hill's notices to Sextet of his neck injury at various times prior to February 11, 1998, satisfied the notice provision of KRS 342.185. Further, Hill's reporting of the injury to his foreman was a proper form of notice.
Black Mountain Corp. v. McGill, 292 Ky. 512, 166 S.W.2d 815 (1942).
We agree with the Board that notice of an injury may not serve as notice for an indefinite time into the future. However, we also believe the statute of limitations provisions of KRS 342.185 resolve this problem. Those provisions provide that no proceeding may be maintained under Chapter 342 unless an application for compensation with respect to an injury is made within two years. Pendland indicates that, in a cumulative trauma case, the date of notice corresponds with the date the statute of limitations begins. Hence, once notice of a cumulative trauma injury is given, the KRS 342.185 two-year limitations period is likewise triggered.
Pendland at 688.
The ALJ determined that Hill, in his testimony, was "somewhat vague in the dates." Hill filed his workers' compensation claim on September 14, 1998. Therefore, for Hill's notices to have been within the limitations period, his notice to Sextet of his neck injuries must have been after September 14, 1996. The burden is upon Hill to prove every element of his case; however, under the present circumstances, we are persuaded that Hill should have the opportunity to demonstrate that his notice was within the statute of limitations period. We therefore vacate the Board's opinion insofar as it reversed the ALJ's determination that Hill's notice was adequate, and remand the case to the ALJ for additional proceedings regarding the notice issue.
Next, Hill contends that the Board erred and misapplied KRS 342.730(1)(a) when it remanded the ALJ's decision for additional consideration regarding Hill's pre-existing spondylolisthesis. In its February 7, 2000, opinion, the Board addressed this issue as follows:
Sextet also contends the ALJ erred in failing to exclude Hill's pre-existing impairment in determining whether he was totally occupationally disabled. Sextet points out the ALJ merely determined whether Hill suffered a pre-existing occupational disability and did not take into account that he would have had some impairment due to his pre-existing spondylolisthesis. We agree.
Prior to December 12, 1996, KRS 342.730(1)(a) provided, in part, that "non-work-related disability shall not be considered in determining whether the employee is totally disabled for purposes of this subsection." This language was inserted into the statute by the 1994 amendments to KRS Chapter 342. This language partially did away with the doctrine set forth in Teledyne-Wirz v. Willhite, Ky.App., 710 S.W.2d 858 (1986), that allowed a claimant to receive lifetime payments of a partial disability award if he was found to be totally occupationally disabled as a result of the combination of both work-related disability and non-work-related disability. Under the 1994 amendments to KRS 342.730(1)(a), only a pre-existing work-related disability can be considered in applying the Teledyne doctrine. Kearn's Bakery v. Tackett, Ky.App., 964 S.W.2d 815 (1998).
In 1996, the General Assembly modified the language in KRS 342.730(1)(a) to read, "Non-work-related impairment and conditions compensable under KRS 342.732 [benefits for coal workers' pneumoconiosis] and hearing loss covered in KRS 342.7305 shall not be considered in determining whether the employee is totally disabled for purposes of this subsection." We must therefore determine what the Legislature intended with this change in language [emphasis original].
It is a commonly accepted rule in statutory interpretation that, "In the absence of a specific statutory definition, statutory terms are to be construed according to the common and approved usage of language." KRS 446.080(4). The phrase "permanent impairment rating" is defined in KRS 342.0011(35) as, "The percentage of whole body impairment caused by the injury or occupational disease as determined by `Guides to the Evaluation of Permanent Impairment,' American Medical Association, latest available edition." However, the term "impairment" is not separately defined. It has long been held in Kentucky law that "disability" and "impairment" are separate and distinct concepts. See, Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968); E. L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240 (1960). In a general sense, disability refers to the limitation of a claimant's occupational disabilities. See, Osborne, supra, at 802. See also, Cook v. Paducah Recapping Service, Ky., 694 S.W.2d 684 (1985). It has also long been held that the assessment of impairment is a medical question that must properly be determined only by medical experts while disability may be determined by the fact finder based on the evidence as a whole. Mitsch v. Stauffer Chemical Co., Ky., 487 S.W.2d 938 (1972).
We must presume that the General Assembly, by enacting this provision of the statute, did so with some intended purpose. See, Grieb v. National Bond Investment Co., Ky., 94 S.W.2d 612 (1936). We must also presume that the Legislature was aware of previous constructions of statutory provisions, previously enacted legislation, and the common law. Manning v. Ky. Bd. of Dentistry, Ky.App., 657 S.W.2d 584 (1983); Cook v. Ward, Ky., 381 S.W.2d 168 (1964).
Given these rules of statutory construction, the only reasonable interpretation that we can give to the language in question is that it requires that any pre-existing impairment must be excluded in determining whether a claimant is totally occupationally disabled regardless of whether that pre-existing condition is disabling. In this case, the ALJ only considered whether Hill was suffering from any active disability. While this approach would have been correct prior to the December 12, 1996, [amendment], we do not believe it is in accord with the current statutory language. We must therefore reverse the ALJ's finding on the existence of a pre-existing, active condition [emphasis original].
For a claimant who was unsuccessful before the Board to prevail on review, the claimant must demonstrate that the evidence was "so overwhelming, upon consideration of the entire record, as to have compelled a finding in his favor." Compelling evidence is evidence "so overwhelming that no reasonable person could reach the conclusion[.]" "[T]he function of the Court of Appeals in reviewing decisions of the Workers' Compensation Board is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice."
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736 (1984).
REO Mechanical v. Barnes, Ky.App., 691 S.W.2d 224, 226 (1985).
Daniel v. Armco Steel Co., L.P., Ky.App., 913 S.W.2d 797, 797-98 (1995); Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
The ALJ specifically accepted and relied on the testimony of Dr. Gaw, and Dr. Gaw was specifically "of the opinion that [Hill] had pre-existing spondylolisthesis and degenerative disc disease." However, the ALJ determined that Hill "did not have pre-existing occupational disability" [emphasis added], and, as we construe the ALJ's opinion, for this reason he did not apply KRS 342.730(1)(a). We are persuaded that, based on the language used by the ALJ in his opinion and award, the Board was correct in determining that the ALJ did not sufficiently address, acknowledge, and distinguish the change in the wording of KRS 342.730(1)(a) from non-work-related disability to non-work-related impairment.
As to this issue, the Board has not overlooked or misconstrued controlling law, nor has it committed an error in assessing the evidence so flagrant as to cause gross injustice. We therefore affirm the Board's decision to remand the issue of Hill's pre-existing spondylolisthesis for additional review by the ALJ. In that regard, we further adopt the following from the Board's opinion:
[T]his interpretation [of KRS 342.730(1)(a)] would seem to imply that any employer in whose service a claimant suffered a serious injury would be able to escape liability for a total disability award if the claimant had some pre-existing condition that warranted an impairment rating regardless of how minor the impairment was and without regard to whether the condition in any way affected his ability to perform any sort of service for remuneration in a competitive economy. However, in such situations, we believe that a "whole man" analysis would be particularly applicable. The "whole man doctrine" holds that if the work-related injury were sufficient, in and of itself, to render the claimant totally occupationally disabled without regard to any pre-existing conditions, the claimant is entitled to a total disability award with no offset for those pre-existing conditions. International Harvester v. Poff, Ky., 331 S.W.2d 712 (1959). Thus, in the instant case, if Hill's back and neck conditions, without regard to the pre-existing spondylolisthesis, were sufficient to render him totally occupationally disabled, then he may receive the full benefits for a permanent total occupational disability with no offset for a pre-existing active condition.
For the foregoing reasons, the opinion of the Board is affirmed in part, vacated in part, and remanded to the ALJ for additional proceedings consistent with this Opinion.
ALL CONCUR.