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RENDERED: DECEMBER 17, 2015
NOT TO BE PUBLISHED
,Suprrun Court ofIT,fipPArk
2015-SC-000135-WC
FRESENIUS MEDICAL CARE HOLDINGS APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001006-WC
WORKERS' COMPENSATION NO. 11-88476
GENEVIEVE NOBLE;
HONORABLE JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Fresenius Medical Care Holdings, appeals a Court of Appeals
decision which affirmed a Workers' Compensation Board ("Board") opinion that
vacated and remanded the dismissal of one of Genevieve Noble's claims for
workers' compensation. Fresenius argues that the Board erred by vacating the
dismissal of Noble's cumulative injury claim, which she stated occurred on
March 8, 2010, because she did not give due and timely notice of the incident.
For the below stated reasons, we affirm the Court of Appeals.
Noble began her employment with Fresenius in February 2004 as a
dialysis nurse. Her job involved traveling to different medical facilities where
she administered dialysis treatment to patients. Her job duties required her to
lift 40 to 50 pounds, push a 300 pound dialysis machine on rollers, and
manually manipulate patients.
Noble testified in a deposition that she began to have lumbar pain in
2008. She told her current physician, Dr. Thomas Schurfranz, about her pain.
Noble did not remember discussing with Dr. Schurfranz the cause of the back
pain and stated that he did not provide an opinion as to the cause of her pain.
However, Dr. Schurfranz's notes from 2010 stated that Noble's lumbar
symptoms were worsened by her work as a dialysis nurse and that Noble told
him that her lumbar pain increased as a consequence of "pulling up a patient."
Dr. Schurfranz also provided Noble a light duty excuse on March 11, 2010, in
which she was to refrain from lifting in excess of ten pounds or standing for
more than thirty minutes at a time for six weeks. Noble testified that the first
time she was informed by a physician that her lumbar pain was work-related
was sometime in September or October 2011.
Noble filed a Form 101 on December 27, 2011, alleging that she suffered
"work-related cumulative trauma for which she was referred to Dr. Elmer
Dunbar on March 8, 2010." She also alleged work-related injuries occurred on
April 26, 2011 and August 9, 2011. Noble admitted that she did not inform
Fresenius of her potential March 8, 2010 injury until either February or March
2011. At that time, Noble inquired of Fresenius how to file a workers'
compensation claim. Fresenius challenged Noble's March 8, 2010 claim on the
grounds that since it took her a year to inform it of the potential work-related
cumulative trauma injury she did not provide due and timely notice.
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After a review of the evidence, the Al..J made the following findings
regarding the notice provided for the March 8, 2010 claim:
15. No proceeding for compensation for 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
. . . KRS 342.185.
16. An employee has the burden of proof and the risk of non-
persuasion to convince the trier of fact of every element of his
workers' compensation claim. Snawder v. Stice, 576 S.W.2d 276
(Ky. App. 1979).
17. [Noble] testified that she asked her supervisor how to go about
filing a workers' compensation claim if she did not have a specific
injury. This is the only indication of the giving of notice on the
part of [Noble] for this particular injury and it took place
approximately one year after the injury date according to [Noble].
The ALJ finds that this does not constitute the giving of notice to
the employer as soon as practicable after the happening of the
injury.
18. The ALJ therefore concludes based upon the evidence
available, that [Noble] has failed to establish that notice was
properly given with regard to the March 8, 2010 injury.
19. [Fresenius] is relieved from liability of the contested expenses
regarding the March 8, 2010, injury.
The ALJ did award Noble temporary total disability benefits and permanent
partial disability benefits for the August 9, 2011 claim. The ALJ also awarded
Noble medical expenses for the April 26, 2011 and the August 9, 2011 injuries.
Noble filed a petition for reconsideration challenging the ALJ's dismissal
of her March 8, 2010 cumulative trauma injury claim. She argued that no
physician informed her prior to when she approached Fresenius in February or
March 2011 that her lumbar injury was potentially related to her employment.
Thus, Noble argues she was not even required to provide notice at that time.
Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). The ALJ denied Noble's
petition for reconsideration. Noble appealed to the Board.
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The Board vacated in part and remanded the matter to the ALJ for
further fact finding. The Board held:
[W]e believe the matter must be remanded to the ALJ for additional
findings. The ALJ failed to make a specific finding as to whether
Noble sustained a cumulative trauma injury. Thus, the ALJ must
first determine whether Noble sustained a work-related cumulative
trauma injury prior to resolving the issue of due and timely notice
of the work injury. The findings of fact and conclusions of law
contained in the numerical paragraphs 17, 18, and 19 as set out
herein are insufficient and do not adequately address the issue of
whether Noble sustained a cumulative trauma injury and the law
concerning the obligation to provide notice of a cumulative trauma
injury. On remand, should the ALJ determine a cumulative
trauma injury occurred, he must also make a finding as to the date
of manifestation of the cumulative trauma injury. After
determining the date of manifestation, the ALJ must then decide
whether notice was timely.
Fresenius appealed to the Court of Appeals which affirmed the Board. This
appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
Further, the function of the Court of Appeals 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." Id. at 687-88. Finally, review
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole
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discretion to judge the credibility of testimony and weight of evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
KRS 342.185(1) requires a claimant to give notice of an injury to the
employer "as soon as practicable after the happening thereof." A cumulative
trauma injury is a "gradual, work-related injury as opposed to a single
traumatic event." Manalapan Mining Company, Inc. v. Lunsford, 204 S.W.3d
601, 604 (Ky. 2006). With a cumulative trauma injury, the claimant must give
notice of the injury by the date of manifestation thereof. Special Fund v. Clark,
998 S.W.2d 487 (Ky. 1999). The date of manifestation of a cumulative trauma
injury generally occurs when a physician informs the claimant that she has
sustained a cumulative work-related injury. Hill, 65 S.W.3d 503.
Fresenius argues in its appeal that there was sufficient circumstantial
evidence to support the ALJ's conclusion that Noble did not provide adequate
notice for her March 8, 2010 claim for a work-related cumulative trauma
injury. Fresenius notes that the records of Dr. Schurfranz from 2010 indicate
he believed that Noble's lumbar pain was being caused by her employment as a
dialysis nurse. Thus, it contends that it is highly unlikely that he did not
mention to Noble that her employment was causing her lumbar pain prior to
March 2011. Fresenius also notes that Noble asked how to file a workers'
compensation claim in February or March 2011, but claims that she was not
informed by a physician that her lumbar problem was work-related until
September or October 2011. Fresenius contends that this timeline discrepancy
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indicates one of her doctors informed her of the presence of a work-related
injury before February or March 2011.
The. ALJ's findings on the alleged March 8, 2010 cumulative trauma
injury are inadequate. Because Noble alleged a cumulative trauma injury, the
ALJ should have first determined if she suffered such an injury. If such an
injury occurred, then the ALJ should have determined the date of
manifestation for that injury, usually the date she was informed by a physician
that the injury is work-related. After determining the date of manifestation,
the ALJ then can analyze if notice was timely provided. Thus, because the ALJ
did not perform a proper cumulative trauma injury analysis, we must agree
with the Board. We note that on remand the ALJ is free to make any finding
regarding Noble's cumulative trauma injury claim that is supported by the
record.
Thus, for the above stated reasons, we affirm the decision of the Court of
Appeals.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur. Wright, J., not sitting.
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COUNSEL FOR APPELLANT,
FRESENIUS MEDICAL CARE HOLDINGS:
Frederick Allon Bailey
Patrick Joseph Murphy, II
COUNSEL FOR APPELLEE,
GENEVIEVE NOBLE:
Stephanie Nicole Wolfinbarger
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