Waste Management v. Jeffrey Maddox ( 2021 )

RENDERED: AUGUST 27, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1492-WC
WASTE MANAGEMENT APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-01641
JEFFREY MADDOX;
HONORABLE CHRIS DAVIS, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
MAZE, JUDGE: Waste Management petitions for review from an opinion of the
Workers’ Compensation Board (Board) which vacated and remanded an order by
the Administrative Law Judge (ALJ) dismissing a claim brought by Jeffrey
Maddox based on his failure to give timely notice of a cumulative trauma injury.
Waste Management argues that the Board substituted its judgment for the ALJ
concerning when Maddox was told that his injury was work-related and whether
Maddox’s delay in reporting that diagnosis was excusable. We agree with Waste
Management that there was substantial evidence to support the ALJ’s inference
that Maddox’s physician advised him that the injury was work-related six months
before Maddox filed his claim. However, we agree with the Board that the ALJ
failed to properly consider whether Maddox’s delay was excusable under the
circumstances presented in this case. Hence, we affirm in part, reverse in part, and
remand this matter for additional findings on the latter issue as directed by the
Board.
Maddox began working for Waste Management in 1990 as a garbage
tipper. For the first three years of his employment, he had to lift the garbage bins.
Thereafter, Waste Management began using a power lift to lift the bins. From that
time, Maddox continued to lift heavy items including mattresses and appliances.
Maddox filed a Form 101 on November 17, 2018, alleging a
cumulative trauma low back injury resulting from several years of employment as
a garbage tipper for Waste Management, manifesting on December 10, 2016.
Maddox testified that, in December 2016, the bar broke on one of the bins, hitting
him in the upper chest area. He landed on his back with the bin on top of him.
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The driver of the truck pulled the bin off Maddox and then called Waste
Management to take Maddox back to the shop. Waste Management requested the
company doctor examine him.
Maddox returned to work while continuing to see physicians for back
pain. His last date of paid employment with Waste Management was in April
2018. Waste Management administratively terminated him six months later due to
his failure to return to work.
A great deal of Maddox’s testimony concerned his inability to
remember when he was examined and when his physicians informed him that his
condition was work-related. Maddox repeatedly stated that he could not remember
meetings with physicians or what they had told him at the time. The ALJ
acknowledged the evidence that Maddox suffers from intellectual deficiency, as
evidenced by the assessment of Robert Piper.
While Maddox has a high school diploma, testing showed he has a
first-grade equivalent in word reading, a second-grade equivalent in sentence
comprehension, a first-grade equivalent in spelling, and a second-grade equivalent
in math computation. Based on these results, Piper placed Maddox in the lower
extreme range. In his testimony, Maddox also displayed a lack of comprehension
concerning the meanings of ordinary words. In his findings, the ALJ noted that,
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“[t]he academic testing from Mr. Piper does make me believe that [Maddox] lacks
the wherewithal to report or pursue his claims.”
In support of his claims, Maddox presented medical evidence from
examinations occurring both before and after the accident. Dr. Gregory N. Nazar
examined Maddox on March 17, 2013, on referral from Dr. Lockett. On physical
examination, Maddox had a slow gait and decreased range of back motion. Formal
testing showed a normal gait and he could get up and down from a seated position
without difficulty and had good maneuverability of the back. Dr. Nazar noted the
discrepancy between the informal and formal examination findings. An MRI was
ordered.
Dr. Robert Hendren saw Maddox on April 5, 2013. Maddox reported
severe back pain radiating down the leg and buttocks on the right. Straight leg
raising test was positive on the right. Lumbar x-rays showed arthritic changes and
spondylolisthesis at the intersection of L5 and the sacrum. A herniated lumbar disc
was suspected. Dr. Hendren recommended a lumbar CT scan and referred Maddox
to Dr. Nazar. The assessment was spondylolisthesis, osteoarthritis, and herniated
lumbar disc. On April 19, 2013, Maddox reported a gradual onset of back pain.
X-rays and MRIs found spondylolisthesis and degenerative disc disease. Straight
leg raising tests were positive bilaterally. Maddox was not allowed to return to
work until examined by Dr. Nazar. Dr. Hendren stated Maddox would probably
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not be able to return to heavy work and would probably be disabled without
surgical intervention. Dr. Hendren examined Maddox on May 2, 2013, for chronic
back pain. Physical examination found tenderness over the L5 vertebra in the
sacral area and pain with bilateral straight leg raising tests. The assessment was
spondylolisthesis and back pain. Maddox followed-up on May 16, 2013, and May
30, 2013, for spondylolisthesis/lumbar strain.
On March 6, 2015, Maddox was examined for pain in the left side of
the back and left leg numbness. He reported heavy lifting while working. He had
slight tenderness in the left paravertebral musculature. Lumbar x-rays noted
minimal arthritic change. Maddox was diagnosed with a lumbar strain,
spondylolisthesis, herniated lumbar disc, and seizure disorder.
Dr. Hendren next examined Maddox on December 10, 2016, for
complaints of leg numbness and pain with coughing. Maddox had back pain on
the left side in the sacral iliac area. Maddox reported tenderness on the
paravertebral muscular left side. Straight leg raising test was positive on the left.
Dr. Hendren suspected a herniated lumbar disc on the left side; his condition is
probably a longstanding work-related injury; and he is disabled and not likely to
improve. On February 28, 2017, Maddox reported low back pain radiating down
the left leg with numbness. X-rays showed some arthritic changes and slight
subluxation of the L5-S2 area. An injection was administered.
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On April 8, 2017, Maddox had left leg numbness, left sided back
swelling and pain, and blackish-purple left toes. The back pain went down the left
leg. Maddox was referred to physical therapy. On May 6, 2017, Maddox had a
chronic lumbar sprain and a recent back injury at work. On September 23, 2017,
the pain was bothersome with work as work requires he tug, pull, lift, and bend.
The physical examination noted no tenderness to the lumbar spine, soreness, and
muscle puffy in the lower right back similar in the anterior thigh on the right. Dr.
Hendren stated Maddox’s issues might be more of a repetitive use type situation.
Dr. Hendren believed Maddox’s pain was sciatica and began treating him with
muscle relaxers and anti-inflammatory medication. On November 16, 2017,
Maddox had back pain and pain down the right leg. An injection was administered
for sciatica.
Maddox was examined on January 27, 2018, for right leg pain and
numbness and occasional low back pain. He reported falling. X-rays showed
anterolisthesis at L4-L5 level. Maddox was referred to a neurologist.
Dr. Hendren examined Maddox on March 13, 2018, for low back pain
with radiation down the right leg. On April 26, 2018, Maddox complained of
lower back pain with radiculopathy in the right. He reported medications and
steroid injections had not helped the pain. Maddox’s pain in the right leg had been
ongoing for several weeks with worsening in the past few days. Lumbar x-rays
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show spurring and slight subluxation of the L5-S1 joint. A lumbar MRI was
ordered and Maddox was restricted from work until after the MRI. Maddox
returned on May 25, 2018, for back pain. He had tenderness over the vertebra of
the lumbar/lumbosacral spine and paravertebral muscles. Dr. Hendren stated
Maddox was completely and permanently disabled from any kind of gainful
employment due to an old back trauma and repetitive motion of lifting heavy trash
cans over the years.
On June 2, 2018, Maddox was unable to return to work due to chronic
back pain from heavy lifting work as a garbage tipper. Physical examination found
tenderness over the L5-S2 area and generalized tenderness of the spinal processes
and the bilateral vertebra musculature. The assessment was osteoarthritis.
Stooping, lifting, and bending causes back pain. Dr. Hendren indicated Maddox
was permanently disabled from gainful employment.
Records from Flaget Memorial Hospital indicate an April 19, 2013,
lumbar MRI revealed degenerative signal changes at L5-S1 with minimal
spondylolisthesis, broad-based midline protrusion, and high-grade left L5-S1
neural foraminal compromise. Maddox filed records from Jewish Hospital-
Shelbyville. A May 3, 2018, lumbar MRI revealed grade I spondylolisthesis at L5
on S1 with some endplate narrow edema inferior endplate of L5 and mild L5-S1
degenerative disc changes, bilateral L5-S2 foraminal stenosis due to listhesis, and
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bilateral L5 pars defects. A CT scan in 2010 found bilateral L5 pars defect and
mild bilateral lower lumbar spine facet arthropathy. A December 31, 2018 lumbar
MRI revealed grade 1 anterolisthesis of L5 on S1 with spondylolysis and mild
retrolisthesis of L3 on L4 and L2 on L3. An April 12, 2019, lumbar scan showed
first-degree spondylolisthesis of L5-S1 stable, bilateral spondylolysis at L5-S1,
intact orthopedic hardware, and status post laminectomy at the L5 level.
Dr. Nazar performed an independent medical examination (IME) of
Maddox on August 23, 2019. Dr. Nazar noted Maddox had been off work for 18
months. Maddox reported back pain with right anterior thigh pain, which
gradually worsened due to his work activities. Dr. Nazar diagnosed L5-S1
spondylolisthesis with progressive and chronic low back pain secondary to
cumulative trauma precipitated by heavy lifting repetitively within his work
environment. The initial reporting date was April 5, 2013. Dr. Nazar noted
Maddox presented for severe pain in his back radiating down the back of his legs
and buttocks on the right associated with significant injury to his lower back about
a year-and-a-half prior to the evaluation, which markedly aggravated his situation.
He was no longer able to work and eventually underwent surgical intervention
after preoperative MRI imaging demonstrated edema in the area of a pars defect at
his L5-S1 spondylolisthesis suggesting an acute injury to his lower back. Dr.
Nazar assigned a 27% impairment rating pursuant to the 5th Edition of the
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American Medical Association, Guides to the Evaluation of Permanent
Impairment (AMA Guides). He indicated Maddox had no pre-existing impairment.
Dr. Ellen M. Ballard performed an IME on December 16, 2019.
When asked about any prior back pain, Maddox stated he could not remember.
During the evaluation, Maddox reported an injury date of December 10, 2018. Dr.
Ballard reviewed records from Drs. Hendren and Lockett from January 26, 2008,
through June 22, 2018; Dr. Nazar from March 17, 2013, through August 23, 2019,
and his August 23, 2019 IME report; Flaget Memorial Hospital from June 2015 to
June 4, 2015; Park DuValle Community Health Center, Dr. Myers, Jewish
Hospital, and Kort Rehab Physical Therapy in 2017. Dr. Ballard diagnosed low
back pain with grade I spondylolisthesis, status post fusion at L5-S1, history of
multiple episodes of low back pain with various treatments and history of seizures.
She opined Maddox had an active condition of which he complained. Dr. Ballard
stated Maddox does not have an impairment rating pursuant to the AMA Guides
related to the alleged work injury. She stated there is no evidence he has a work-
related condition. His fusion was due to his non-work-related L5-S1
spondylolisthesis.
Dr. Nazar completed a rebuttal report on April 20, 2020. Dr. Nazar
stated Maddox had a pre-existing spondylolisthesis at L5-S1 that made him more
susceptible to injury from his strenuous work activities. He had a cumulative
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trauma injury related to heavy lifting occurring over the course of several years.
His pain related to his work began as far back as 2013. Dr. Nazar felt Dr. Ballard
was oversimplifying and ignoring the fact that Maddox has a cumulative trauma
injury. He stated she appeared to be “trying to pin this down to a specific injury
date” which Dr. Nazar felt was a wrongful characterization and conclusion.
Dr. Mark Allen Myers examined Maddox on December 27, 2018.
Maddox reported constant back pain and paresthesia bilaterally in the anterior
thigh, anterior leg, and foot. He developed lumbar pain after a motor vehicle
accident in 2000 with episodic back pain since the accident. An abdominal CT in
2010 showed spondylolysis. Maddox reported bilateral leg symptoms of a year’s
duration and in May 2018, the symptoms worsened without trauma. He also
reported constant back pain. Maddox had physical therapy and steroids without
improvement of symptoms. The assessment was chronic back pain with leg
symptoms and trouble ambulating consistent with abnormalities seen on an MRI.
Maddox followed-up on January 4, 2019, with no change in his symptoms. X-rays
showed grade II isthmic spondylolisthesis at L5-S1 with an 11 mm slip. Dr. Myers
stated Maddox has had symptoms for ten years with progression over time. Dr.
Myers performed a L5-S1 laminectomy, bilateral partial facetectomy and medial
foraminotomy, and instrumented posterolateral fusion on February 12, 2019.
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Finally, Jason Warrell, Waste Management’s district operations
manager, testified at the hearing. He testified that employees are advised on a
yearly basis of the requirement to immediately report all injuries. He also testified
that Maddox was written up in 2001 for failing to report an injury immediately.
Warrell further testified that Maddox reported other work injuries since that time.
Warrell stated that Waste Management did not receive notice of the cumulative
trauma injury until Maddox filed his claim in November 2018.
After a consideration of the evidence, the ALJ found that Maddox
presented substantial evidence of a cumulative trauma injury dating back to at least
2013. Based on Maddox’s uncontested testimony about his job duties, the ALJ
also found that Maddox’s low back condition is the result of work-related
cumulative trauma. However, the ALJ found that Maddox failed to provide Waste
Management with timely notice that his injury was work-related prior to filing his
claim on November 27, 2018.
With respect to the sufficiency of the notice, the ALJ recognized that
Maddox was not required to give notice of cumulative trauma until a physician
informed him that his cumulative trauma injuries were work-related. The ALJ also
acknowledged the lack of any definitive medical evidence regarding when Maddox
was informed that his injuries were work-related. But the ALJ found Maddox’s
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repeated statements that he could not recall when he had been informed to be not
credible.
In my analysis, findings and Orders below I have
given due attention to each of the two primary sections
based on the evidence of record and the parties’
arguments. However, I would be remiss, as it is relevant
to my decision and the parties should be apprised of the
basis of my decision, if I did not point out that the
inconsistencies in the Plaintiff’s stories, which he has
attempted, through counsel, to portray as due to his
“weak-mindness” [sic] have influenced my decision. I
do not mean, exactly, that I think he is lying in the
traditional sense, though he [may be]. I mean to say that
he has the burden of proof and persuasion in this claim
and inconsistencies, the “I don’t remembers” and the
time gaps between several relevant points leave me
genuinely unable to determine that he has proven his
case.
It [may be], as the Plaintiff argues that his lack of
sophistication and/or weakmindness [sic] has led to these
lapses. But even as to that, I have no real proof and in
fact, the Plaintiff has reported work-related accidents in
the past. He is a high school graduate. The academic
testing from Mr. Piper does make me believe that the
Plaintiff lacks the wherewithal to report or pursue his
claim. Finally, when “recalling” the alleged details of the
alleged December 10, 2016 accident he recalls the details
quite well.
...
While requirements that uncontradicted evidence
must be accepted are generally true, they are not
universally true. One of the exceptions in which an ALJ
may reject uncontradicted testimony is when the witness
is an interested party. Surely, there is no more interested
party herein than the Plaintiff. It is important that in the
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line of cases setting forth when otherwise uncontradicted
evidence maybe rejected by a trier of fact that with
respect to an interested witness that is sufficient, i.e. that
the witness is an interested witness. There is no need to
recite to inconsistencies, inadequate history, surveillance
videos or even a general unease with the Plaintiff’s
testimony. I am free, as a matter of law, to reject
anything and everything he says, if I wish. Moore v.
Versnick Healthcare Center Inc., [No. 2002-SC-0531-
WC,] 2003 WL 21259485 [Ky. May 22, 2003], Franklin
Insurance Agency v. Simpson, [No. 2007-SC-0748-WC,]
2008 WL 5051613 [Ky. Nov. 26, 2008] (quoting [3A.
Larson, Workmen’s Compensation Law, § 8020 (9th ed.
1976)]), Grider Hill Dock, Inc. v. Sloan, 448 [S.W.2d]
373 (Ky. [] 1969).
However, to put it simply, I am dubious that no
doctor ever discussed with him that his work was causing
or contributing to his low back pain. Pain which existed
for years prior to his last date of work and which caused
him to seek medical treatment years prior to his last date
of work and which his doctors always believed was
work-related. I simply cannot, beyond a shadow of a
doubt, prove they spoke to him about it. However, that is
not the standard anywhere in our workers’ compensation
system.
I also find it relevant that the Plaintiff never said
he was not told his condition was work-related, simply
that he cannot remember if he was told it was work-
related. The standard is he must report his cumulative
trauma injury when he was told it was work-related, not
if he can predict years in the future if he will remember
he was told it was work-related.
Finally, I have the medical records from Dr.
Hendren. Those medical records show that for at least
three years, 2013-2016, that the Plaintiff was seeing Dr.
Hendren for low back pain and that the Plaintiff’s work
was discussed relevant to that pain. Both how the work
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he did was heavy and that he might be disabled from it.
The first such record is dated April 9, 2013 and states the
low back injury is of gradual onset and notes his job
duties.
The records continue to mention his low back pain
and his work until the May 25, 2018 record, which
specifically states that the low back injury is work-related
to years of heavy lifting. The record also notes that the
doctor spent 15 minutes with the Plaintiff discussing the
low back problems. Thus, it is reasonable to conclude,
[it] would [be] the latest possible date at which a
physician informed the Plaintiff his condition was work-
related, not the August 23, 2019 IME with Dr. Nazar.
Frankly given the summary of medical records, by
date, in Dr. Nazar’s report, not all of which were actually
filed into evidence, the Plaintiff’s history of
appointments with Dr. Hendren and the clear knowledge
of Dr. Hendren of the Plaintiff’s work I don’t think it
would be too much of a stretch to say the Plaintiff was
probably told by a doctor prior May 25, 2018 that his
condition was work-related.
Regardless, the record also demonstrates that the
Plaintiff did not provide any notice of a cumulative
trauma claim prior to filing is [sic] claim on November
27, 2018, six months after May 25, 2018, or, possibly, in
October, 2018, but there is no documentation to prove
that. Regardless, my findings would be the same.
The Plaintiff does not argue he provided notice
prior to that date. In fact, he admits it but argues he was
not required to give notice until August 23, 2019. The
date Dr. Nazar examined him.
The testimony of Mr. Warrell is clear that the
Plaintiff did not provide notice of a cumulative trauma
claim as soon as practicable after being told by a
physician it was work-related. The business records
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introduced via Mr. Warrell’s testimony demonstrate two
things.
One, the employer had a policy on notice that, in
writing, specifically addressed what attorneys would call
cumulative trauma injuries. “Similarly, if you experience
pain from performing repetitive motion tasks, you must
report it immediately. Repetitive motion disorders, if not
treated promptly, can result in months of lost time from
work.” (Waste Management Accident/Injury Reporting).
Two, the Plaintiff has reported injuries in the past.
He was well aware of how to report injuries and his
responsibility to report an injury. Yet he did not.
As a result of the delay, the Defendant had little to
no way to investigate the claim until months had passed,
further making his poor memory, upon which he relies,
even less reliable. The Plaintiff waited, at a minimum,
five months to report his injury. The Plaintiff has not
justified the delay, though he has argued the correct date
should be August 23, 2019, after the claim was filed,
requiring notice be deemed sufficient. The delay is not
excused[,] and notice is insufficient and inadequate.
Maddox filed a Petition for Reconsideration requesting additional
findings of facts regarding the ALJ’s determination this claim was barred for
failure to provide due and timely notice. The ALJ denied the motion, concluding
that Maddox’s testimony did not compel a conclusion that he provided notice of
his back injury prior to filing of the claim.
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On appeal, the Board vacated the ALJ’s order dismissing Maddox’s
claim. The Board recognized that KRS1 342.185(1) requires notice of an accident
shall be given, “as soon as practicable” and that the claim for benefits to a resulting
injury must be filed within two years “after the date of accident” or following the
suspension of payment of income benefits, whichever is later. In injury claims
caused by cumulative trauma, the date for giving notice and for clocking the statute
of limitations is triggered by the date of manifestation. Special Fund v. Clark, 998
S.W.2d 487 (Ky. 1999). An injury caused by cumulative trauma manifests when
“a worker discovers that a physically disabling injury has been sustained [and]
knows it is caused by work.” Alcan Foil Prod., a Div. of Alcan Aluminum Corp. v.
Huff, 2 S.W.3d 96, 101 (Ky. 1999).
The Board noted that Maddox claimed cumulative trauma injuries to
his lumbar spine manifesting on December 16, 2016, as the result of years of work
for Waste Management as a garbage tipper. However, the Board concluded that
the ALJ relied on speculation to infer that Maddox was advised by a physician that
this condition was work-related.
The evidence concerning whether Maddox was
ever advised by a doctor that he suffered a work-related
cumulative trauma low back injury is anything but clear.
The record is replete with testimony from Maddox
stating he suffered a specific injury on one of two dates,
was advised at some point in time, by a doctor, that his
1
Kentucky Revised Statutes.
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condition was work-related, and yet testified he was
never advised his condition was work-related. The basic
takeaway from Maddox’s testimony is it is not clear on
when, or if, he was advised his condition is work-related.
In determining Maddox did not provide due and timely
notice, the ALJ inferred Maddox was advised by his
physician his condition is work-related, at the latest on
May 15, 2018, yet did not provide notice until months
later which he deemed was untimely.
We do not believe this decision is supported by the
case law and evidence of record. It is clear that Maddox
could not recall ever being advised by any of his
physicians that his low back condition, which
necessitated fusion surgery, was caused by his work as a
tipper for Waste Management. Maddox’s testimony
clearly indicates he suffers from intellectual deficiency as
evidenced by the assessment of Robert Piper, placing
Maddox in the lower extreme range, and by his lack of
knowledge of what the word “valid” means in regards to
a “valid driver’s license”. In fact, the ALJ opined that
Maddox lacks the mental capacity to report or pursue a
claim. Furthermore, the ALJ cannot logically assume
that because the medical records of May 18, 2016 reflect
Dr. Herndon felt Maddox’s back condition was work
related, this fact was ever explained to Maddox. Whether
Maddox had the intellectual capacity to understand he
then possessed a work-related condition and what his
obligations were thereafter is also in question.
Therefore, we believe the determination of the
ALJ, that Maddox received notice from his physicians
that his cumulative trauma low back injury was work-
related, is not supported by substantive evidence of
record. That determination resulted from an
unreasonable inference drawn by the ALJ.
Based on this conclusion, the Board vacated the ALJ’s order and
remanded the matter for additional proceedings. While the Board did not direct the
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ALJ to reach any particular result, the Board instructed the ALJ to determine when,
if ever, Maddox was advised, by a physician, that his cumulative trauma injuries to
his back were caused by his work at Waste Management. In making this
determination, the Board further instructed the ALJ to consider the impact of
Maddox’s intellectual deficiency concerning his ability to understand the necessity
for giving notice as well as his ability to understand what the physician might have
told him. Finally, the Board directed the ALJ to determine whether Maddox’s
failure to give timely notice due to his intellectual deficiencies was excusable
pursuant to KRS 342.200. Waste Management now petitions for review of this
order.
It is well-established that a claimant in a workers’ compensation claim
bears the burden of proving each essential element of his claim. Burton v. Foster
Wheeler Corp., 72 S.W.3d 925, 928 (Ky. 2002). Where the party that bears the
burden of proof is unsuccessful before the ALJ, the question on appeal is whether
the evidence is so overwhelming upon consideration of the record as a whole as to
compel a finding in claimant’s favor. Wolf Creek Collieries v. Crum, 673 S.W.2d
735, 736 (Ky. App. 1984). In order to reverse the decision of the ALJ, it must be
shown there was no substantial evidence of probative value to support his decision.
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). As the fact-finder, the
ALJ has the sole authority to judge the weight, credibility, substance, and
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inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985). Where the evidence is conflicting, the ALJ has
the sole authority to believe or disbelieve various parts of the evidence, regardless
of whether it comes from the same witness or the same party’s total proof. Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). The function of this
Court’s review is to correct the Board only where the Court perceives that 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.
W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
The only disputed question in this case is whether Maddox provided
timely notice of his cumulative trauma injury to Waste Management. As the Board
recognized, KRS 342.185 requires that a claimant provide notice of an accident “as
soon as practicable[.]” In cases involving cumulative trauma, the date for giving
notice commences “[o]nce a worker is aware of the existence of a disabling
condition and the fact that it is caused by work[.]” Special Fund v. Clark, 998
S.W.2d at 490. See also Consol of Kentucky, Inc. v. Goodgame, 479 S.W.3d 78,
82 (Ky. 2015). The ALJ found that Maddox’s cumulative trauma was caused by
his work and manifested following the injury on December 16, 2016.
Waste Management does not dispute this finding. Rather, it argues
that there was substantial evidence to support the ALJ’s conclusion that Maddox
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was advised that his condition was related to his work no later than May 25, 2018.
Dr. Hendren’s treatment note of that date states that Maddox “[a]ppears to be
completely and permanent [sic] disabled for any kind of gainful employment due
to old back trauma, repetitive motion of lifting heavy trash cans over the years and
working waste management.” The note further recites that Dr. Hendren advised
Maddox “to stay off work and avoid any kind of heavy work.” Likewise, Dr.
Hendren’s note from June 22, 2018, states that Maddox was “unable to return to
work due to back pain, chronic pain due to heaving lifting working as a garbage
tipper.” Since Dr. Hendren determined at that point that Maddox’s condition was
work-related, Waste Management argues that the ALJ could reasonably infer that
he informed Maddox of this conclusion as well.
However, the ALJ did not find Dr. Hendren’s notes to constitute
definitive evidence that Maddox was told by a physician that his cumulative
trauma was caused by his work. Instead, the ALJ drew that inference from the
notes and the other evidence. The ALJ also rejected Maddox’s testimony that he
could not remember being told that his condition was work related, finding it to be
not credible. The Board found both of these inferences to be unreasonable and not
supported by substantial evidence of record.
In the role as fact-finder, an ALJ may refuse to accept even
uncontradicted evidence in the record. Collins v. Castleton Farms, Inc., 560
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S.W.2d 830, 831 (Ky. App. 1977). But in such cases, the fact-finder must state its
reasons for rejecting the only evidence in the record; e.g., that the testimony was
inherently improbable, or so inconsistent as to be incredible, that the witness was
interested, or that his testimony on the point at issue was impeached by falsity in
his statements on other matters. In the absence of some explanation furnished for
the disregard of all uncontradicted testimony in the record, the fact-finder’s
conclusions will be reversed as arbitrary and unsupported. Id. (citing 3A. Larson,
Workmen’s Compensation Law § 80.20 (9th ed. 1976)). See also Franklin Ins.
Agency, Inc. v. Simpson, No. 2007-SC-000748-WC, 2008 WL 5051613 (Ky. Nov.
26, 2008).
Here, the ALJ set forth his reasons for finding Maddox’s testimony to
be not credible. Most significantly, the ALJ relied upon Dr. Hendren’s May 25,
2018 note stating that he had determined the cumulative trauma to be work-related
as of that date. And the ALJ noted that Maddox did not deny being told that his
condition was work-related, only that he could not remember being told. From
these facts, the ALJ drew the inference that Maddox was told that his condition
was work-related no later than May 25, 2018. We cannot find that this inference
was unreasonable in light of all of the evidence of record. Consequently, we must
conclude that the Board clearly erred in setting aside the ALJ’s finding on this
basis.
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The Board also instructed the ALJ to determine whether Maddox’s
failure to give timely notice was excused due to his intellectual deficiencies and
inability to understand what physicians might have told him. KRS 342.200
excuses timely notice if the employer had notice of the injury or where the delay
“was occasioned by mistake or other reasonable cause.” KRS 342.185(1) contains
no specific time frame but leaves the ALJ with discretion to determine whether
notice was given “as soon as practicable” under the specific circumstances of the
case. Newberg v. Slone, 846 S.W.2d 694, 700 (Ky. 1992). While lateness of
notice may be excused for various reasons, “the burden is on the claimant to show
that it was not practicable to give notice sooner.” Id.In this case, the ALJ recognized that Maddox has significant
intellectual disabilities and “lacks the wherewithal to report or pursue his claims.”
Nevertheless, the ALJ determined that Maddox should have reported his
cumulative trauma injury because he had reported other injuries to Waste
Management in the past. However, the prior injuries which Maddox reported
involved specific work-related injuries, not cumulative trauma. The distinction is
significant because Maddox may not have been able to understand his physician’s
statement that the cumulative trauma injury was work-related because there was no
specific initiating injury.
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Under the circumstances, we agree with the Board that the ALJ failed
to properly consider the impact of Maddox’s intellectual deficiencies concerning
his ability to understand the necessity for giving notice and to understand what his
physicians might have told him. Considering the undisputed evidence concerning
Maddox’s intellectual limitations, his failure to provide timely notice to Waste
Management may be excusable under KRS 342.200. Consequently, we agree that
this issue must be remanded for additional findings on this question alone as
directed by the Board.
Accordingly, the October 30, 2020 Opinion of the Workers’
Compensation Board is affirmed in part, reversed in part, and remanded for
additional findings on whether Maddox’s delay in providing notice was excused.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
JEFFREY MADDOX:
David D. Black
Louisville, Kentucky James D. Howes
Louisville, Kentucky
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