Brummitt v. Southeastern Kentucky Rehabilitation Industries

OPINION OF THE COURT

The defendant-employer covered its workers’ compensation liability with different earners in April and October, 2000. The claimant settled her claim for a gradual injury with the first carrier but fully litigated it against the second. Based on a finding that a gradual injury became manifest on April 17, 2000, an Administrative Law Judge (ALJ) dismissed the claim for an October, 2000, injury and determined that the carrier on risk in April, 2000, bore all liability. The Workers’ Compensation Board (Board) and the Court of Appeals affirmed. We have concluded, however, that the ALJ misapplied KRS 342.0011(1) and erred by determining that an April manifestation date necessarily made the carrier on risk at that time responsible for the employer’s entire liability. As a result, the ALJ failed to consider whether work-related trauma that occurred after April, 2000, caused a harmful change for which the subsequent carrier was responsible. For that reason, we reverse and remand for further consideration.

The claimant was employed by the defendant-employer from October 11, 1999, through December 11, 2000. She testified that her work on the assembly line required her to perform various tasks that involved the repetitive use of her hands. In April, 2000, she began to experience pain in her wrists as well as in her neck and shoulders. After discussing her symptoms with her co-workers, she purchased and began wearing wrist braces as some of them did.

On April 17, 2000, while at the White House Clinic with a sick child, the claimant complained of swelling and numbness in her hands to Ms. Fee, a nurse practitioner. Ms. Fee noted that the claimant performed a “repetitive motion job” and that she suffered from “probable repetitive motion syndrome of both extremities.” She prescribed Celebrex and provided the claimant with new wrist supports, directing her to wear them at night and as much of the day as possible. She did not restrict the claimant’s work activities. When asked subsequently if Ms. Fee had told her that her symptoms were work-related, the claimant stated that she did and that they were due to “overworking my hands.” She also stated that she informed her supervisor when she returned to work.

On October 6, 2000, the claimant returned to the White House Clinic for treat*278ment of her hand pain. At that time, Dr. Adkins noted that the claimant worked on an assembly line and did repetitive work. He diagnosed probable carpal tunnel syndrome, discussed treatment options, and recommended the use of wrist splints. The claimant returned on October 10, 2000, stating that her pain was worse and that she was unable to work. Dr. Adkins restricted her from performing activities that would aggravate the condition and scheduled nerve conduction studies. When she returned on October 12, 2000, stating that severe pain prevented her from doing anything with her hands, Dr. Adkins took her off work for several days and suggested that she attempt to find other employment. An EMG was performed on November 1, 2000, and revealed bilateral median mononeuropathy. Dr. Adkins released the claimant to limited work on the following day, but her symptoms continued, causing her to miss work sporadically until December 11, 2000, when she quit altogether.

On March 28, 2002, the claimant filed an application for benefits, alleging an injury date of April 17, 2000. Ms. Fee’s notes as well as the results of the EMG and nerve conduction studies were attached to the application. On June 21, 2002, the claimant moved to amend her application to allege an alternative injury date of October 6, 2000, when Dr. Adkins diagnosed bilateral carpal tunnel syndrome. It was later shown that Kentucky Employers’ Mutual Insurance (KEMI) provided workers’ compensation coverage for the employer from April 17, 2000, until May 1, 2000. Century Insurance provided coverage in October, 2000. Century did not object to the motion to amend but asserted that the proper date of injury was April 17, 2000.

On or about September 24, 2002, after the hearing but before the matter was submitted to the ALJ for a decision, the claimant reached a settlement with her employer, as insured by KEMI, and the parties submitted the agreement to the ALJ for approval. The claimant agreed to release the employer from any liability that it might have for an injury that became manifest on April 17, 2000, in exchange for a lump sum of $5,000.00. She reserved her right to pursue the claim for an injury of October 6, 2000, against the employer, as insured by Century.

When the claim for an October 6, 2000, injury came before the ALJ, the contested issues included: date of injury/pre-existing active disability, extent and duration, entitlement to temporary total disability, unpaid medical expenses, and the carrier responsible for medical expenses. Notice and limitations were not at issue. Nonetheless, the ALJ stated that there was a threshold issue concerning the date on which the injury became manifest. The ALJ acknowledged that although Dr. Adkins did not diagnose carpal tunnel syndrome until October 6, 2000, Ms. Fee informed the claimant that she suffered from “repetitive motion syndrome” and advised her that it was caused by her work. The ALJ stated that this was “not a case in which the claimant’s symptoms improved and a ‘new injury’ later became manifest at a later date” or a case in which company medical personnel misled her about the cause of her symptoms. Concluding that the injury became manifest on April 17, 2000, the ALJ determined that it occurred during KEMI’s coverage period and that Century bore no liability. After rendering the decision, the ALJ approved the agreement between the claimant and KEMI.

Having failed to convince the Board, or the Court of Appeals that the decision was erroneous, the claimant continues to maintain she could not have known that she sustained an injury until October, 2000, since Ms. Fee made no definitive diagnosis *279and imposed no specific restrictions. She asserts that because carpal tunnel syndrome is the harmful change that she has alleged and because the condition was not diagnosed until October, 2000, the injury did not become manifest until then. She also argues that the ALJ failed to consider the difference between knowledge that a condition is symptomatic at work and knowledge that it is caused by work. Finally, she asserts that the manifestation of injury in a cumulative trauma case is not analogous to an injury due to a single event. Although we are convinced that there was substantial evidence the claimant’s injury became manifest in April, 2000, we agree that the ALJ erred by treating this claim as being analogous to one for a single traumatic event.

A gradual injury generally arises imperceptibly, from the physical strain of numerous instances of minor workplace trauma, also referred to as minitrauma. For that reason, the courts have applied a rule of discovery for establishing the date of injury. Hence, a gradual injury becomes manifest for the purpose of notice and limitations with the worker’s knowledge of the harmful change and the fact that it is caused by the work. Special Fund v. Clark, Ky., 998 S.W.2d 487 (1999); Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96 (1999). Whether a healthcare provider has given the harmful change a general or specific name is immaterial.

KRS 342.0011(1) defines an injury as being a work-related traumatic event that causes a harmful change in the human organism. The ALJ erred by treating this claim as being analogous to one for a single traumatic event and by relying on the fact that the claimant’s symptoms did not improve as a basis for determining that there was no new injury. Where an individual continues to perform the same repetitive activity after a gradual injury becomes manifest, additional incidents of workplace trauma may well cause additional harmful changes. In other words, the individual may well sustain subsequent gradual injuries. We acknowledged as much in Special Fund v. Clark, supra, although the question there was one of limitations.

Notice and limitations were not at issue in this case, and the claimant settled regarding the employer’s liability for a gradual injury of April, 2000. Discussion at the hearing indicated that Century provided coverage beginning in May or June, 2000. The claimant continued to perform the same work between April and October, 2000, and the claim before the ALJ concerned the employer’s liability for a gradual injury of October, 2000, when Century provided coverage. Therefore, the ALJ erred by determining that an April manifestation date necessarily made KEMI responsible for the employer’s entire liability and necessarily precluded an award for the effects of trauma incurred during the period for which Century was responsible. KRS 342.0011(1) required the ALJ to consider the medical evidence and to determine whether workplace trauma that occurred after April, 2000, caused a harmful change. If it did, the claimant sustained an injury for which Century was responsible.

The decision of the Court of Appeals is reversed, and this matter is remanded to an ALJ for further consideration.

LAMBERT, C.J., and JOHNSTONE, KELLER, SCOTT and WINTERSHEIMER, J.J., concur. COOPER, J., dissents by separate opinion in which GRAVES, J., joins.