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Fowler Bell Blog – Worker's Comp

It’s no laughing matter, Hale v. CDR Operations.

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On October 29, 2015 the Kentucky Supreme Court handed down a dreadful decision in the matter of Hale v. CDR Operations, Inc., et al., 2014-SC-000062-WC (to be published).  Get ready to fight hard over date of manifestation.

Claimant had been a bulldozer operator for thirty years. He last worked for CDR.  His employment with them lasted three months.  He filed his claim after he was laid off and solely against CDR as they were his last employer.  The ALJ awarded PTD benefits against CDR concluding that was when the cumulative trauma manifested. The Board remanded for an apportionment of liability based upon the percentage of Hale’s impairment attributable to the three months he worked for CDR.  The Court of Appeals affirmed.  In doing so the Board and the Court of Appeals relied upon the plain language of the Southern Kentucky Concrete case:  “liability should be apportioned to the employer based upon the percentage of disability attributable to the work performed by the employee while in the employ of that company.”

The Supreme Court, opinion by Justice Barber, reversed the Board and the Court of Appeals. In doing so the Court reinstated the decision of the ALJ.  Ultimately they concluded that Southern Kentucky Concrete is no longer good law as our statute underwent amendments since the decision was issued.  Of course this alone is not enough to place thirty years of cumulative trauma on the company that employed claimant for only three months.  So how did they reach such a conclusion?

The Court goes out of its way to put cumulative physical injury claims into the same class as hearing loss and occupational disease claims. “We can discern no basis for such a distinction.” Normally I try to keep my commentary to the end.  I can’t do it here, I just can’t.  Here goes…

There is no need to discern, just read and apply the statute. The legislature wrote specific statutory provisions that placed liability on the last employer for hearing loss and occupational disease. See KRS 342.316 (10) & 342.7305 (4). You will not find any such language in the definition of an “injury” in KRS 342. 0011(1), which happens to be where you find the term cumulative trauma.  Thus, the legislature clearly—and intentionally—did not include it in cumulative physical injury claims. Okay, back to Court’s opinion.  Sorry for the interruption.

According to the Court the date of manifestation was stipulated to by the parties.

Okay, again, I have to interrupt. This is incorrect. The stipulations stated an “alleged” injury on February 7, 2012, which was the day he was laid off by CDR.  How is this a stipulation by the employer that this claimant’s thirty years of cumulative trauma manifested on the very day he was laid off?  It’s not.

Per the Court the date of manifestation was not listed as an issue in the BRC Order. Note that an issue was “whether plaintiff sustained an injury.”  Ultimately the Court held that the Board could not set aside the stipulation sua sponte (the Board remanded for the ALJ to delve further into the date of manifestation).

In a concurring opinion Justices Minton and Abramson take issue with the majority’s opinion that there was a stipulation on the date of manifestation. They feel that in this case the date of manifestation/date of lay off is a harmless error.  “And although I am concerned that an employer of three months may foot the bill for thirty years of gradual trauma, this Court is left with no choice under the current workers’ compensation law.”

Comment:  This is really, really, bad law.  Part of the rationale is that the claimant should be made whole.  Whether you agree or not, I would hope that we would all be able to agree that this is fundamentally unfair to the company that hired this man to work for three months.  If the legislature had intended to make this the law they would have done so—just like the specifically did in hearing loss and occupational disease claims.

Is it me or is it curious that the first time he was told that his problems were work related was when he saw Dr. Madden—the IME doctor hired by his attorney? How bizarre…

Finally, it’s also worth noting that the ALJ found that prior to the manifestation of disability he was operating without restrictions so there was no prior active disability.