No. 00-00499 (2002). Tower Automotive v. Carter.

• Case Date: June 04, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-00499 (2002). Tower Automotive v. Carter TOWER AUTOMOTIVE PETITIONER VS. JENNIFER CARTER; and LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: June 4, 2002CLAIM NO. 00-00499APPEAL FROM HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART, REVERSING IN PART, AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Tower Automotive ("Tower") appeals from an opinion, order and award rendered by Hon. Lloyd R. Edens, Administrative Law Judge ("ALJ"), wherein he found Jennifer Carter ("Carter") to be 12% occupationally disabled due to a work-related repetitive trauma injury to her upper extremities. On appeal, Tower argues: (1) Carter's claim should have been found time-barred pursuant to Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96 (1999); (2) Carter failed to provide due and timely notice of her injury; and (3) her condition is not work-related. Carter was born on April 8, 1963 and is a resident of Bardstown, Kentucky. She has a high school education, two years of college studying business management, and no specialized or vocational training. Past relevant work experience includes employment as a cashier, waitress and insurance agent. Carter began working for Tower, a manufacturer of auto parts, first as a temporary employee in August 1996 and subsequently as a permanent employee in April 1997. Her permanent position was as a press operator that required her to tighten bolts on a die and lift tubs of steel products weighing approximately forty to fifty pounds. She last worked for the petitioner in September 1998. Since that time, she has worked for a temporary service, in data entry, as a "quality tech" checking parts, and as an assistant manager for Trim Masters. According to Carter, she was fired from Trim Masters because she had to miss so much work due to surgeries involving her hands. At present, Carter is employed as a customer quality engineer dealing with quality issues involving customers of Jideco. Her Application for Resolution of Injury Claim was filed on April 27, 2000. Carter testified that in October 1997, she began to experience tingling and pain in her arms and hands. The pain subsided when she was off work on weekends and holidays. At her deposition, Carter testified she believed her work with Tower to be the cause of her symptoms. She also testified that she told someone in the human resources department for Tower as early as December 1997 that she was experiencing the pain. According to the respondent, a First Report of Injury was completed regarding her right arm in January 1998. Carter was referred to Bardstown Occupational Health by Tower on January 12, 1998, where she was seen by Dr. Fitzpatrick, the company doctor. According to Dr. Fitzpatrick's progress note for that date, Carter complained of a "hurting right elbow." Carter further reported to the doctor that she could recall no acute trauma, but that she regularly performed lifting and pulling at work. Although there is no specific language listing Carter's complaints as work-related, Dr. Fitzpatrick designated her visit to be paid for by "WORKMAN'S COMP." Following Carter's initial visit, Dr. Fitzpatrick diagnosed "tennis elbow" affecting her right upper extremity. Dr. Fitzpatrick prescribed a splint and placed the claimant on light duty. Thereafter, Carter's condition did not improve with conservative treatment. In July 1998, Dr. Fitzpatrick referred her to Dr. Wolff with Kleinert, Kutz and Associates Hand Care Center in Louisville for additional treatment. Dr. Wolff first saw Carter on July 6,1998. At that time, Dr. Wolff noted that in February 1998, Carter had been "treated for right tennis elbow with physical therapy and injections and improved." Carter presented with complaints of coldness, numbness, and decreased grip strength in the right hand. Consequently, Dr. Wolff became the first physician to make the diagnosis of carpal tunnel syndrome. In a letter to Dr. Fitzpatrick dated July 15, 1998, Dr. Wolff indicated an impression of mild right carpal tunnel syndrome with symptom magnification. Carter was placed on light duty work and, according to the respondent's testimony at final hearing, another alleged accident report was filled out by her supervisor. At the time of Carter's initial treatment, a patient medical treatment plan form was completed and initialed by Dr. Wolff. This form lists Carter's diagnosis as work-related and designates payment for Carter's treatment to be charged to workers' compensation. In due course, after several visits, Dr. Wolff recommended surgery involving Carter's right wrist. Initially, this procedure was scheduled by Dr. Wolff, then cancelled due to the fact that Carter changed physicians. Carter was next seen by Dr. Charles Kincaid upon referral by Tower's workers' compensation insurance carrier on September 2, 1999, for complaints of bilateral carpal tunnel syndrome. Dr. Kincaid ultimately performed four surgeries consisting of bilateral carpal tunnel releases and bilateral pronator teres surgery. He performed a decompression of the right median nerve on October 8, 1999. A repeat EMG on February 18, 2000, showed the right upper extremity abnormalities to be resolving, however, the left carpal tunnel syndrome had worsened. The left median nerve was decompressed on March 17, 2000. Thereafter, Carter began complaining of pain in both forearms and an EMG showed the abnormalities in both wrists resolved, but she showed bilateral pronator teres syndrome. Next, Carter underwent decompression for pronator teres syndrome on May 5, 2000 on the right and July 7, 2000 on the left. Dr. Kincaid opined that the nerve compressions were all cumulative trauma disorders and the direct result of performing repetitive motions during the course of her employment. In an office note dated September 15, 1999, Dr. Kincaid indicated an impression of cervical spondylosis at C6-7, greater on the right apparently based on x-rays taken that date. In July 2000, Dr. Kincaid obtained an MRI of the cervical spine that revealed a central disc protrusion at C5-6 causing mild spinal cord compression. There was also a disc osteophyte complex at C6-7. The doctor consequently has opined that in addition to her upper extremity problems, Carter's cervical problem was the result of a cumulative trauma disorder due to the nature of her job at Tower. Dr. Kincaid has since referred the respondent to a neurologist, Dr. Horne, for cervical complaints. Dr. Kincaid assessed a 12% impairment to the body as a whole pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment ("Guides") relating to her upper extremity problems only. Nevertheless, he opined that she did not have any restrictions pertaining to her upper extremities. However, if she returned to her former type of employment after performing repetitious activities on a daily basis, she could have recurrent symptoms. He also stated that due to her cervical problem, when and if the respondent returns to work, she will never be able to return to any type of job activity that involves lifting. Carter also saw Dr. Ajith Nair at the Pain Control Network in Louisville, Kentucky, on December 27, 2000, upon referral from Dr. Horne. Dr. Nair opined Carter had cervical spondylosis with C7 radiculopathy on the right side. He recommended epidural steroid injections of the cervical region. Dr. Morton Kasdan, a hand specialist, performed an independent medical evaluation of Carter on April 17, 2001. In addition to taking a history and performing a physical examination, Dr. Kasdan reviewed Carter's medical records. He concluded Carter's diagnosis was chronic pain that was not completely explained on the basis of the objective examination. He found that while she may have radiculopathy, it would not explicate all of her symptoms. He opined that while some of the symptoms could be related to her prior surgical procedures, there was no indication in the medical records that she sustained a distinct and definable injury. While Dr. Kasdan found she had cervical radiculopathy, he concluded it was not related to any occupational injury or disease. He was not convinced that the diagnosis of carpal tunnel syndrome or pronator teres was confirmed, noting that Carter acknowledged she did not experience an improvement in pain following the two peripheral nerve releases. Instead, he thought the cervical radiculopathy was most likely the cause of her symptoms. Dr. Hal Corwin saw Carter on April 17, 2001 for a neurological examination and EMG/NCV study. Dr. Corwin summarized that the right upper extremity testing was entirely normal without evidence of plexopathy peripheral nerve injury at the wrist or radiculopathy. Testing of the left upper extremity did not reveal slowing of the median nerve at the carpal tunnel or at the elbow. There was mild denervation in the left thenar muscles that may be a post-operative phenomenon. In addition, there were signs of chronic denervation at the left C5-6 distribution involving the left deltoid. Dr. Corwin opined that Carter had never shown definite electrodiagnostic evidence of median neuropathy at the wrist. She had some clinical and radiographic evidence of bilateral cervical radiculopathy. The left cervical radiculopathy was noted on the electrodiagnostic studies, likely involving the left C5-6 nerve roots. 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