Gray v. Trimmaster, No. 2004-SC-1027-WC.
| Decision Date | 27 September 2005 |
| Docket Number | No. 2004-SC-1027-WC. |
| Citation | 173 S.W.3d 236 |
| Parties | Nicola (Brown) GRAY Appellant, v. TRIMMASTER; Hon. J.Landon Overfield, Administrative Law Judge; and Workers' Compensation Board Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
In defining the term "injury," KRS 342.0011(1) requires that a work-related harmful change in the human organism must be "evidenced by objective medical findings." Despite acknowledging that the employer failed to file a timely Form 111, the Administrative Law Judge (ALJ) dismissed the claimant's application for benefits after determining that there were no objective medical findings of a harmful change in the human organism and, therefore, no compensable injury. Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754 (Ky.2001). Although the claimant maintained that unrebutted medical evidence of a 2% AMA impairment due to pain amounted to such a finding and compelled an award, the Workers' Compensation Board and the Court of Appeals affirmed.
We affirm insofar as the AMA impairment did not compel an award on these facts. Insofar as the ALJ failed to give proper effect to the employer's failure to file a timely Form 111 (Notice of Claim Denial or Acceptance), we reverse the decision to dismiss the claim and remand this matter for additional findings of fact and conclusions of law. That is not to say that a decision in the claimant's favor is compelled.
The claimant was born in 1970 and is a high school graduate. She had experience working as a seamstress and presser in a uniform shop, working in a mail room, installing insulation, assembling printers, operating a plastics machine, trimming surf boards, and working in fast food restaurants. In September, 2001, she began working for the defendant-employer, assembling and upholstering seats for automobiles. She stated that the work involved repetitive motion, forceful twisting, the use of hand tools, and lifting up to 30-40 pounds. In an application filed on February 27, 2003, she alleged repetitive motion injuries to her arms as of January 25, 2002, and sometime in September, 2002. The application indicated that there was a dispute regarding the employer's liability for compensation and the amount or duration of benefits.
As required by 803 KAR 25:010, § 5(1)(d), the claimant's application for benefits included a letter from Dr. Brooks to her attorney that stated, in pertinent part, as follows:
It is my professional opinion that Ms. Gray's underlying "inflammatory process" is most likely caused by work and then further aggravated by continuing within the repetitive work environment. Unless she has had a previous complaint prior to beginning employment at this job, I would doubt that there would be a preexisting or not work-related condition that would be underlying.
On April 3, 2003, the Department of Workers' Claims informed the employer and Travelers Indemnity of Illinois of the claim, advised the employer to contact its carrier at the time of the injury, and advised the employer and Travelers to contact counsel of their choice and to notify the Department of counsel's name and address.
On April 25, 2003, the Department issued an order, setting forth the schedule for taking proof and the date of the benefit review conference (BRC). The order gave the employer 45 days (i.e., until June 9, 2003) to file a Form 111 Notice of Claim Denial or Acceptance and stated that if the Form 111 was not filed, all allegations in the application would be deemed admitted. KRS 342.270(2); 803 KAR 25:010, § 5(2)(b). The order gave all parties 60 days to take proof (i.e., until June 24), followed by an additional 30 days for the employer and then 15 days for rebuttal by the claimant.
The employer failed to file a timely Form 111, to introduce any proof, or to appear at the August 12, 2003, BRC. The BRC memorandum contained various stipulations, including that the claimant sustained work-related injuries in January and September, 2002. It noted the employer's failure to respond in any way to the claim. After stating that only the following issues "shall be subject to further proceedings," it listed "extent and duration, medical expense payment, [and] entitlement to TTD (temporary total disability)" as being the contested issues.
On August 13, 2003, counsel for Travelers filed a notice of representation on the employer's behalf. Also on August 13, 2003, counsel filed a Form 111 in which it asserted that the alleged injury was not work-related, that any disability was pre-existing and active, and that the claimant did not sustain an injury as defined by KRS 342.0011(1). The employer was represented at the August 27, 2003, hearing.
The only medical evidence consisted of the letter from Dr. Brooks and the report of a June 11, 2003, evaluation by Dr. Owen, both of which were submitted by the claimant. They presented two different theories regarding the nature of the claimant's injury. Dr. Brooks indicated that the claimant had a work-related inflammatory process that was further aggravated by her repetitive work. He doubted that there was a pre-existing condition or an underlying non-work-related condition.
Dr. Owen determined that the claimant had a non-work-related rheumatoid condition and elevated sed rate that were exacerbated by her work. He noted that her chief complaint was hand and wrist pain that began in January, 2002. She associated it with the repetitive motions involved in twisting and pulling leather and cloth while making automobile seats. She explained to Dr. Owen that she first experienced pain in her right hand when using a vibratory tool called a "hog ring gun."
Dr. Owen diagnosed persistent, bilateral wrist pain that was greater on the right side than on the left, but he noted that there was "no objective evidence at the present time for the severity of the pain." Dr. Owen thought that the claimant's injury was the cause of her complaints. He attributed 75% of her condition to rheumatoid arthritis and the elevated sed, which were non-work-related, and 25% to an exacerbation of the conditions due to her work. He assigned a 2% impairment for pain under the AMA Guides to the Evaluation of Permanent Impairment (Guides), indicating that the figure was based on a Fifth Edition Pain Score. In his opinion, the claimant did not have an active impairment before the injury. Nor was her condition due to the arousal of a pre-existing dormant condition. He noted that her previous work involved hand-intensive labor and that she was doing well presently, without ongoing labor, as evidenced by her minimal signs and symptoms. He thought that her work activities should be restricted due to her injury and stated that she did not retain the physical capacity to return to her previous work.
At the hearing, the claimant testified that she had not worked since January, 2003, and indicated that she remained under active medical care for her injury. She stated that the employer paid some voluntary TTD benefits but discontinued them, probably in November, 2002. After being treated by Drs. Brooks and Umansky at the Lexington Clinic, she was referred to Drs. Favetto and O'Neill, who were hand specialists. She stated that Dr. O'Neill ordered nerve conduction studies and anti-inflammatory medication.
The claimant described her symptoms as including numbness and tingling in both hands, occasional pain in the left hand, and frequent pain in the right hand, which was her dominant hand. The symptoms affected her fingers, hands, and forearms, sometimes including her elbows. She stated that she could not return to the type of work that she was performing for the employer because it involved repetitive motion, using vibratory tools and tools requiring forceful gripping. She thought that she could return to work as a seamstress or as a mail sorter.
In her arguments to the ALJ, the claimant requested medical benefits and either an open-ended TTD award that was based on her continuing medical treatment, or an award of permanent income benefits that was based on the impairment Dr. Owen assigned. Noting that the extent and duration of disability remained at issue, the employer maintained that although there was some evidence of a temporary exacerbation of an inflammatory condition that had resolved, there were no objective physical findings of a permanent harm. The employer acknowledged that Dr. Owen attributed a 0.5% impairment to pain due to the exacerbation of non-work-related conditions. It argued, however, that an award based upon an AMA pain rating was improper absent any objective medical findings of an injury.
Based upon the employer's failure to file a timely Form 111, the ALJ noted that all allegations in the claimant's application were deemed to be admitted by the employer under 803 KAR 25:010, § 5(2)(b). Therefore, among other things, the employer admitted that the claimant sustained work-related injuries on January 25, 2002, and September, 2002; that the employer had due and timely notice of the injuries; that the claimant performed assembly work; and that she engaged in repetitive motion, forceful twisting, the use of hand tools, and lifting of 30-40 pounds.
Noting the claimant's testimony regarding work she could perform and the absence of any medical evidence of restrictions that would render her unable to work, the ALJ denied her request for TTD benefits. Turning to the question of permanent partial disability, the ALJ noted the absence of any "objective medical findings" as that term is defined in KRS 342.0011(33). Explaining that not all work-related harmful changes are compensable and that KRS 342.0011(1) requires a harmful change in the human organism to be evidenced by objective medical findings in order for it...
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