Russell v. Whitehall Industries Owners Insurance Company Hartford Accident & Indemnity, 030521 KYWC, 201901239

• Case Date: March 05, 2021
• Court: Kentucky

CHRISTOPHER RUSSELL PETITIONER v. WHITEHALL INDUSTRIES OWNERS INSURANCE COMPANY HARTFORD ACCIDENT & INDEMNITY and HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE RESPONDENTS Nos. 201901239, 201901237 Kentucky Workers Compensation Commonwealth of Kentucky Workers’ Compensation Board March 5, 2021          APPEAL FROM HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE.           COUNSEL FOR PETITIONER: HON RODGER LOFTON LMS           COUNSEL FOR RESPONDENT/ WHITEHALL INDUSTRIES: HON ROBERT FERRERI LMS HON CHRISTOPHER M MAYER LMS           COUNSEL FOR RESPONDENT/ THE HARTFORD: HON JAMES COMPTON LMS           COUNSEL FOR RESPONDENT: HON DONNIE NIEHAUS LMS           COUNSEL FOR RESPONDENT: HON STEVE GOODRUM LMS           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.           OPINION AFFIRMING AND REMANDING           STIVERS, Member.          Christopher Russell (“Russell”) appeals from the October 19, 2020, Opinion and Order and the November 12, 2020, Order of Hon. Grant S. Roark, Administrative Law Judge (“ALJ”). In the October 19, 2020, decision the ALJ dismissed “with prejudice” Russell’s claims for work-related bilateral carpal tunnel syndrome (“CTS”) and a hernia. The ALJ dismissed the bilateral CTS claim for failure to provide due and timely notice and to file the claim within the applicable statute of limitations. The hernia claim was dismissed for failure to prove work-relatedness.          On appeal, Russell sets forth four arguments. Russell first asserts Whitehall Industries (“Whitehall”) failed to notify the Department of Workers’ Claims of its failure to pay temporary total disability (“TTD”) benefits following the left carpal tunnel release surgery performed by Dr. Spencer Romine on December 26, 2017. Consequently, as Russell argues, his bilateral CTS claim is not barred by the statute of limitations. Second, Russell asserts that his unrebutted testimony establishes he gave due and timely notice of his bilateral CTS. Next, Russell asserts he is entitled to an award of benefits based upon the worsening of his bilateral CTS which occurred within the two years prior to filing his claim on October 10, 2019. Finally, in what appears to be more commentary than argument, Russell alleges Whitehall received favorable treatment by the ALJ throughout this litigation.          BACKGROUND          The Form 101 for Claim No. 2019-01237, filed October 10, 2019, alleges Russell sustained work-related injuries to his wrists and hands on September 22, 2016, in the following manner: “My injury occurred over time. I felt numbness, tingling, and pain in my hands.” Regarding notice, the Form 101 alleges as follows: “While I was working, I told my supervisor that my hands were giving me trouble.” At the time Russell filed his Form 101, Whitehall was insured by Auto Owners Insurance.^[1]          The Form 101 for Claim No. 2019-01239, also filed on October 10, 2019, alleges Russell sustained work-related injuries on May 1, 2019, to his “abdomen including groin” in the following manner: “I was moving a rack and felt a sharp pain in my left side.” By Order dated November 8, 2019, the ALJ consolidated the claims.          On November 18, 2019, Whitehall filed a Special Answer asserting a statute of limitations defense.          On December 10, 2019, Russell filed a “Motion for Leave to Amend Form 101” seeking to amend the bilateral CTS claim to reflect the onset of his symptoms occurred in “Mid-2017,” and the first day of work missed due to those symptoms was December 26, 2017. By Order dated January 2, 2020, the ALJ sustained Russell’s motion.          Russell was deposed on March 9, 2020. Regarding the discussions he had with Whitehall’s personnel before he underwent left carpal tunnel release surgery, he testified as follows:

Q: In terms of your dealings with the folks at Whitehall, do you recall any conversations reaching back to the time around you had to take leave for the surgery, do you recall any conversations with the folks at HR or anything like that when coordinating your leave?

A: The little bit that I recall after going to the doctors and I told them that I get a week vacation at the end of the – of the year. The company give a week vacation, so

I tried to work as much as I could that was tolerable because I knew I was going to be off for six weeks.

And I just told HR that I was having a hand surgery, and I did my own prep work with paperwork and got it to the doctors. And then after the surgery, they had to have some stuff faxed to them or some that I had to sign to hand back to them.

         Russell acknowledged that Dr. Christopher Sperry was the first doctor to inform him the CTS is work-related.          At the August 19, 2020, hearing, Russell testified extensively concerning the onset of his CTS symptoms:

Q: All right. Now we’ve made reference here to your onset of symptoms. I know you testified about that, that in the middle part of 2017, you started having some symptoms in your hands. How would you describe those symptoms?

A: The numbness, burning sensation. I would lose my grip on certain objects.

Q: Was this both hands?

A: Yes sir.

Q: And where were you having the numbness?

A: From the hands to the elbows.

Q: All right. After experiencing these symptoms for a while, did you go to your family doctor?

A: Yes sir.

Q: And that is Dr. Christopher Sperry?

A: Yes sir.

Q: What did he do for you?

A: He told me that –

Q: Well, you can’t say what he told you. Did he examine your hands?

A: Yes sir.

Q: Did he order any testing?

A: Yes sir, he did.

Q: Okay. Was that the nerve testing?

A: Yes sir.

         Dr. Sperry referred Russell to an orthopedic surgeon, Dr. Romine, who performed carpal tunnel release surgery on Russell’s left hand on December 26, 2017. Following the surgery, Russell was off work until the first week of February. Regarding what he informed Whitehall’s personnel around this time, he testified as follows:

Q: All right. Now did you keep your employer informed about the status of your hands, the treatment you were receiving, and the complaints that you were having with your hands?

A: From time to time, I would tell them that I have problems with my hands. But to hold onto a job, I would go to work.

Q: Yes sir. For instance, whenever you had to take off work to have the surgery, did you inform them then that that was because of your hands?

A: Yes sir.

         Following the left carpal tunnel release surgery, Russell returned to his same job at Whitehall working until May 27, 2020. At that time, his left hand condition had regressed to its pre-surgery condition. However, Russell stopped working because, after overhearing a conversation amongst his colleagues, he believed he had been fired.          At the hearing, concerning when Dr. Sperry first informed Russell the bilateral CTS is work-related, the following exchange occurred:

Q: Okay. Now the next page I wanted to show you was something, again, that you may not have seen, but I want to ask you a question about. Dr. Sperry has, in the questionnaire, stated that on September 28 that there was talk about he told you that your carpal tunnel syndrome was a result of overuse and was greatly impacted by your employment at the time of diagnosis. My question for you is did Dr. Sperry tell you during that September 28, 2017 visit that your carpal tunnel syndrome was due to your work?

A: Yes sir.

…

Q: Okay. During that time did you tell anyone at Whitehall Industries that you had been diagnosed with carpal tunnel syndrome?

A: Yes sir.

Q: Who did you tell?

A: A few of the coworkers, just chitchatting with the supervisors.

         Russell was unable to pinpoint the exact date he informed Whitehall the bilateral CTS is work-related. He testified as follows:

Q: Mr. Russell, on September 28 of 2017, that note where Dr. Sperry states you wanted to hold off on surgery because of a promotion, were you concerned about telling Whitehall Industries that you had been diagnosed with carpal tunnel syndrome because you were afraid you were not going to get a raise that you were due the next week?

A: To be honest, yes sir.

Q: How long did you wait to tell

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