*1 subsequently Appellant completion sentenced the evaluation was entirely thirty-years imprisonment. and because the proper, evaluation found competent, the failure
III. ANALYSIS competency hearing to hold a was not er- Appellant argues that the trial court or- ror. psychological
dered a evaluation of him due to concerning doubts his mental condi- IY. CONCLUSION tion, therefore, he contends that the reasons, For the affirm above we trial court could not properly accept- judgment of the Laurel Circuit Court. guilty pleas completion ed his until the competency hearing evaluation and a All concur. accordance KRS 504.100. For reasons, Appellant requests these that his
appeal abeyance be held in while the case retrospective competen-
is remanded for a
cy hearing.
Although trial required court is a psychological
order evaluation when it
has grounds reasonable to believe that a BRUMMITT, trial,2 Appellant, incompetent
defendant is to stand Joann may do so at its discretion absent such v. grounds. example, imposing For before REHA- KENTUCKY SOUTHEASTERN conviction, felony sentence for a “the court INDUSTRIES; Hon. BILITATION may order the defendant to psy- submit to Kittinger, Bonnie Administrative Law chiatric observation and examination for a Judge; and Workers’ (60) period exceeding sixty days.”3 not Board, Appellees. exactly And that happened what Appellant’s compétence case. was not in No. 2003-SC-1028-WC. question and was not raised as an issue Kentucky. Supreme In Court of himself his trial counsel. ordering Appellant’s evaluation the trial Feb. court did not indicate that it had reason- grounds able that Appellant to believe rather,
incompetent; Psy- in the Order for Evaluation, February
chiatric entered
15, 2001, the Court stated: “IT IS HERE-
BY pursuant ORDERED to KRS
582.050(3) that the defendant submit
psychiatric observation and examination (60) period Sixty to exceed ” Days.... purpose Thus the of the evalu-
ation was to allow the trial court to make sentencing
an informed determination. acceptance pleas prior 532.050(3). 2. KRS 504.100. 3. KRS *2 (Board) Board and the Court of however, concluded, affirmed. We have 342.0011(1) misapplied KRS the ALJ April that an by determining and erred necessarily made the manifestation date responsible carrier on risk at that time result, liability. employer’s entire As failed to consider whether work- ALJ April, trauma that occurred after related caused a harmful for which subsequent responsible. carrier was reason, For that we reverse and remand for further consideration. employed by
The claimant was the de- fendant-employer from October through December 2000. She testified assembly that her work on the line re- quired perform her to various tasks that repetitive involved the use her hands. April, began In experience pain in her wrists as well as her neck discussing shoulders. After her co-workers, symptoms pur- with her began wearing chased and wrist braces as some of them did. On while the White Anderson, Cole, Cole, E. John Anderson child, House Clinic with a sick the claimant PSC, Barbourville, & Nagle, Counsel for complained swelling and numbness in
Appellant. Fee, practitioner. her hands to Ms. a nurse Pohl, Picklesimer, per- Ronald Ms. Fee noted that the claimant J. Pohl & Kis- er, P.S.C., job” formed a Lexington, “repetitive motion Appel- Counsel for “probable repetitive lee. she suffered from mo- tion of both extremities.” She prescribed Celebrex OPINION THE OF COURT claimant supports, with new wrist direct- The defendant-employer covered its ing night her to wear them at and as much compensation liability workers’ with differ- day possible. as did not re- October, ent earners in April and strict the claimant’s work activities. When The claimant settled claim gradu- her if subsequently asked Ms. Fee had told al with the first fully carrier but work-related, her that symptoms were litigated against the second. Based on the claimant stated that she did and that finding gradual injury that a became mani- they “overworking my were due to hands.” fest on an Administrative She also stated that she informed her su- (ALJ) Judge Law dismissed the claim for pervisor when she returned to work. October, 2000, an injury and determined on risk in April, carrier bore On October the claimant re- all liability. The Workers’ turned to the White House Clinic for treat- time, a settlement claimant reached pain.
ment of her hand At that Dr. KEMI, insured employer, claimant and the Adkins noted that the worked agreement parties submitted assembly repetitive line and did work. approval. agreed The claimant diagnosed probable carpal syn- He ALJ for *3 drome, employer any liability from and the options, discussed treatment release injury for an that splints. might that it be- recommended the use wrist 17, 2000, April manifest on in ex- The claimant returned on October came $5,000.00. change lump sum of stating pain that her was worse and right pursue her to the claim for that she was unable to Dr. Adkins reserved work. 6, 2000, injury against the performing restricted her from activities an of October by Century. as insured aggravate employer, that would the condition and scheduled nerve conduction studies. the claim for an When October 12, 2000, When she returned on October ALJ, the contested injury came before the stating pain prevented that severe of injury/pre-existing included: date issues hands, Dr. doing anything from with her duration, disability, and enti- active extent days Adkins took off work for several disability, un- total temporary tlement to suggested attempt that she to find re- expenses, and the carrier paid medical other An employment. per- EMG was expenses. Notice sponsible for medical 1, 2000, formed on November and revealed not at None- and limitations were issue. Dr. mononeuropathy. bilateral median theless, that was a the ALJ stated there Adkins released the claimant to limited concerning issue the date threshold following day, symp- work on the but her The injury became manifest. which the continued, causing toms her miss work although Dr. Ad- acknowledged ALJ 11, 2000, sporadically until December carpal syn- tunnel diagnose kins did not altogether. quit 6, 2000, Fee in- drome until October Ms. 28, 2002, suffered from
On March the claimant filed an formed the claimant benefits, syndrome” and advised application alleging injury “repetitive an motion that it was caused her work. April date 2000. Ms. Fee’s notes as her stated that this was “not case well as the results of the EMG and nerve ALJ improved symptoms to the the claimant’s conduction studies were attached which injury’ later became manifest application. On the claim- and a ‘new June company in which application ant a later date” or a case moved amend her her about the injury personnel an medical misled allege alternative date October Concluding that symptoms. of her diagnosed when Dr. Adkins bilat- cause April syndrome. It became manifest on carpal eral tunnel was later the Mutual determined that occurred Kentucky Employers’ shown that the ALJ (KEMI) and that during coverage period workers’ com- KEMI’s Insurance liability. rendering After pensation coverage Century for the from bore no decision, agree- the May Century approved until 2000. the the ALJ October, claimant and KEMI. provided coverage in ment between the Insurance object mo- Century did not Board, the Having failed to convince proper tion to amend but asserted the the that the decision Court date of erroneous, to main- the claimant continues that she tain she could not have known September or about after On October, 2000, until hearing before the matter was sustained but decision, diagnosis made no definitive to the ALJ for a since Ms. Fee submitted manifest, imposed specific no restrictions. She becomes additional incidents of syn- asserts that because workplace may trauma well cause addition- words, drome is the harmful al harmful In changes. she has other alleged and because the may subsequent condition was not individual well sustain October, until injuries. acknowledged as We did not become manifest until then. Special supra, She much in Fund v. argues also although ALJ failed to consider question there was one of the difference knowledge between that a limitations. symptomatic condition is at work and Notice and limitations were not at knowledge that it is caused work. Fi- case, issue in claimant settled *4 nally, she asserts that the manifestation of regarding employer’s liability for a injury in a cumulative trauma case is not gradual injury April, of 2000. Discussion analogous to injury an due a single at the hearing Century pro indicated that event. Although we are convinced that June, coverage vided in beginning May or there was substantial evidence the claim- 2000. The claimant perform continued to injury ant’s April, became manifest October, the same work between and agree we by the ALJ erred 2000, and the claim before the ALJ con
treating this claim being analogous
as
employer’s
cerned the
liability
gradu
one for a single traumatic event.
October, 2000,
injury
al
Century
Therefore,
coverage.
A gradual
injury
the ALJ
generally arises
by determining
erred
an
man
imperceptibly, from
physical
strain of
ifestation date necessarily made KEMI re
numerous
workplace
instances
minor
trauma,
sponsible for
employer’s
liability
entire
also referred to as minitrauma.
and
reason,
necessarily precluded an
For that
award for the
the courts
applied
effects of trauma
during
peri
rule of
incurred
discovery for establishing the date
Century
od for which
injury. Hence,
responsible.
a gradual
injury be
342.0011(1)required
KRS
comes
the ALJ to con
manifest for the purpose of notice
sider the medical
and
evidence and to deter
limitations with the worker’s knowl
edge
workplace
mine whether
trauma that
oc
harmful
and the fact
curred after April,
it is
caused a harmful
caused
the work. Special
did,
change.
If it
the claimant
Ky.,
(1999);
Fund v.
sustained
has the harmful change general The decision of the of Appeals Court specific name is immaterial. reversed, and this matter is remanded to 342.0011(1) an ALJ for further consideration. KRS defines an as being a work-related traumatic event that LAMBERT, C.J., JOHNSTONE, and causes a harmful change in the human KELLER, SCOTT and organism. The by treating ALJ erred this WINTERSHEIMER, J.J., concur. being claim as analogous to one for a COOPER, J., single by separate traumatic event dissents by relying opin- GRAVES, J., joins. the fact that ion in the claimant’s which symptoms did improve not as a determining basis for COOPER, Justice, dissenting. injury. there was no new Where individual perform continues to the same majority opinion sponte has sua repetitive activity after a “gradual injury” created a new rule for
280 physi that her employer departs from the she informed inexplicably
cases that carpal as diagnosed her condition in cases such cian had principles sound established continued work Printing syndrome. House the Blind tunnel as American Brown, January January 2001. On (Ky.2004), v. which until S.W.3d (not further saw Dr. Roberts recently so decided that there were identified), diagnosed carpal tunnel reviewing ink after it. who my stains on hands concluded that the condition undoubtedly syndrome this new rule will Because held that June discourage voluntary payments and settle- was work-related. We for cover encourage insur- was the date ments of such cases or Janu liability by canceling coverage, purposes, not November 2000 age ers to avoid though worker was employers ary to termi- even thereby encouraging workers, respect- I partially nate disabled expert a medical
fully and was not advised dissent. until was work-related that' the condition case, it was in The issue coverage changed on October after the House, is which of two Printing American 2000: successive insurers of the same *5 that the claimant sus- undisputed It is grad provided coverage for a work-related trauma and that work-related tained i.e., injury injury, ual on what date did the from the trauma were changes harmful legally In Randall v. Pend occur? Co. 5, 2000. There- symptomatic on June land, (Ky.App.1989), 770 687 S.W.2d fore, injury defined as she sustained a rule of discov Appeals adopted Court of 342.0011(1) although Chapter by KRS ery and held that the date of is provisions and limitations 342’s notice injuries disabling reality “when the until triggered she received were i.e., manifest,” 688, at when .becomes id. January, in 2001. diagnosis medical symp experiences disabling the worker In Alcan Products v. pain. toms of Foil Thus, respon- MICOA was Id. 148. Huff, (Ky.1999), 2 96 we refined (and, S.W.3d incidentally, the em- insurer sible by holding compensable rule additional months of ployee received seven benefits). manifests itself “where a worker Special Fund v. See also disabling injury physically discovers that a (Ky.1999) (holding 490 998 S.W.2d accident,” knows it [and] has been sustained of for statute that the “date of work,” by regardless of whether caused in a purposes, limitations in continues to work the worker thereafter the worker becomes claim is the date Id. at 101. employment. the same disabling condi- existence of a aware of the work). that it is caused tion and the fact House, em Printing In American the facts are judice, In the case sub compensation insurer for ployer’s workers’ in 1, 2000, those American virtually identical as prior to October period (even roughly the dates Printing of America House Company Mutual Insurance Kentucky Employers Mutu- (MICOA); correspond). its insurer on and after (KEMI) was the workers’ began to al Insurance Co. date was KESA. The worker for Southeastern compensation insurer pain in her wrists on June experience until it Kentucky Rehabilitation Industries notice to her immediately gave May coverage effective canceled its sustained a work- employer that she had Century Co. was South- Insurance injury. June related On insurer after that date. South- of arm eastern’s complained company nurse as an employed Appellant assem- In November eastern pain. and shoulder
281 added.) bly line worker from October Dr. Adkins referred her to Dr. through (EMG) December Paul electromyography The work Brooks for required repetitive Dr. testing. report, use her arms and Brooks’s No- dated In early April hands. Appellant de- vember reflects a “conclusion” veloped symptoms of “Electrodiagnostic what she believed to evidence bilateral be tendonitis and purchased two arm mild median mononeuropathies at Wal-Mart, braces at explaining later that wrist.” spo- continued to work she did so girls radically “[b]eeause other at work until December was, know, you wearing Thus, they finally quit. them and the facts of this told it helped me that a lot.” virtually On case are identical to those 2000, Appellant sought treatment at American Printing White House. McKee,
House Clinic Kentucky, be- Application On her for Resolution of In- cause: Claim, jury Appellant stated that the date I had my went to work and hands was (the date hurting. And I asked her if there was she learned that her disabling condition something that give she could give me or work-related). She later amended her my me advice on hands. application allege an alternate date of injury of October Fee, She was seen and the date Dr. treated Jean L. diagnosed Adkins practitioner, disabling nurse condition whose handwritten “probably syndrome” note in the clinic’s medical records reflects “problems hands, tendonitis. Administrative swelling, Law fingers (ALJ) Judge numb.” made a finding Fee of fact that “[pjrobable repeti- tive motion became awai’e of *6 of both her dis- upper both ex- abling condition gave by tremities” and and that it was Appellant a caused pair new April of her work on splints wrist and the pain some ALJ medication. Appellant finding concluded from that testified that that the date Fee told her on of that date that and the relevant her condition date for deter- was work- mining related and which insurer coverage that she should wear the for the claim splints April working 2000. The ALJ and rest her hands also as much as found that is possible. “[t]his not a case in Appellant notified Lawson, which symptoms Gretta the worker’s personnel improved, her supervisor, a injury’ ‘new Fee’s advice and became manifest at a Lawson reassigned later date.” to a Brummitt v. assembly-line job. different Southeastern Indus., Ky. Inc., 00-66642, Rehab. No. slip On October Appellant returned op. (Ky. Dep’t at 8 of Workers’ Claims Oct. to White House presented Clinic and the 2002). words, In other only there was same symptoms Adkins, to Dr. Daniel who injury, one separate injuries not two occur- diagnosed “probably early carpal tunnel ring on both and October syndrome” and tendonitis. Dr. Adkins 2000. Appellant has never contested that prescribed splint a Colles’ pain medi- finding and does not appeal claim on that cation. Appellant returned on October she sustained than injury. more one That 2000, and told Dr. Adkins that she was theory promulgated is for the first time in unable to work and that she “wants to file today’s majority opinion. a comp workman’s claim.” Dr. Adkins’ record for that date following contains the The Workers’ Board handwritten note: affirmed, “has forms she wants unanimously noting that the filled out states (Emphasis DOI findings by ALJ’s of fact supported were k!17/00.” the injury, though diagno medical
“substantial evidence” and that her conclu- al even syndrome tunnel a of work-related sions “not sis wholly were unreasonable January not made until matter law.” Thus, injury in the this case date does ALJ, aptly pointed by As out swelling turn on of Appel whether claim involves neither notice [sic] lant’s and the numbness her fin hands limitations; however, statute of both gers by (Appel tendonitis were caused Brummitt and con- South Eastern [sic] (Jean lant), syndrome repetitive motion respective rights cede the and obli- Fee), carpal and tendoni gations parties of the become on fixed (Dr. Adkins), tis or bilateral mild median disability. the date of manifestation of Brooks). (Dr. mononeuropathies Appel disability This manifestation date is lant admitted that she aware fact by intensive determination fact swelling prior and numbness upon particular finder based circum- that date and that learned on stances each case.... ALJ is [A]n swelling and numbness were conclude, if by supported authorized gave caused work. She notice her record, disability evidence of that a date. on same could manifest on the claimant date the seeks treatment and is -informed on that did finding that new The ALJ’s occasion that her condition is related to sup- also not occur October on her work. and, thus, is ported by evidence substantial 342.285(1). The binding appeal. KRS Brummitt Ky. v. Southeastern Rehab. In for October dus., Inc., House Clinic records 00-66642, White 4-5 slip op. No. “had the same 23, 2003). reflect (Ky. Bd. Comp. Apr. Workers’ Ap- Nor symptoms ago.” six months did unanimously The Court of also pellant testify .symptoms were affirmed, noting that the of re standard if But different on October even is “to only view correct the Board where it had, a worker is aware of the “[o]nce controlling has overlooked or misconstrued disabling existence of a condition and or precedent, statutes or committed an work, fact that it the worker is caused *7 in assessing error flagrant the evidence so to continuing would also be aware that injustice.” as to cause v. Brummitt perform or similar duties was the same Indus., Inc., Ky. Southeastern Rehab. No. injury.” likely Special to cause additional 2003-CA-001055, 6-7, slip at op. 2003 WL Appel- 998 Fund v. S.W.2d at 2003) (Ky.App. 22417228 (citing Oct. W. that lant has never claimed she sustained Baptist Hosp. Kelly, v. 827 S.W.2d gradual injury. only than more one (Ky.1992)). 687-88 Both the Board and claims that the did not manifest the Court of noted that our cases itself until it was specifically require do not that the worker be aware syndrome on October diagnosis disabling the precise con very argument we same dition, long so as the worker is aware of rejected in House. Printing American the existence of the condition and fact principle majority opinion’s sponte that it is related. That was sua hold- work recently in be ing most reiterated American claim can House, 148-49, Printing mini-injury in divided into a claims S.W.3d series separately litigated against which we that the date of held to be em- gave ployer’s subsequent simply June when the worker un- insurers employer gradu like KEMI will at- notice her work-related workable. Insurers insurer, tempt liability by distinguishes to this case from reduce their own gradual injury Printing that the worker’s proving American House. during period a subsequent
worsened I dissent. Accordingly, covered dif- J., GRAVES, joins dissenting ferent insurer. That is especially opin- true here, coverage where KEMI its cancelled ion.
only days Appellant’s fourteen after man-
ifestation of but contin-
ued work for more than months seven
thereafter. upon today’s holding, Based
we should held in Printing American MICOA,
House that providing insurer
coverage on only June was liable for benefits that accrued prior October COMPANY, LIME DRAVO KESA, subsequent INC., Appellant, insurer, was for accruing hable benefits say thereafter. It nois answer to v. issue not raised Printing American EAKINS; Glenn Hon. C. Sheila Lowth- House—-for neither was it raised here. er, Judge; Chief Administrative Law Today’s holding encourage will in- also Compensation Board, and Workers’ surers to cut by canceling their losses cov- Appellees, erage for employers gradually who retain injured with only partial workers disabili- Eakins, Cross-Appellant, Glenn rolls, ties on them employment and it will discourage potential subsequent insurers Company, Inc; Dravo Lime Hon. Sheila and, thus, from accepting coverage assum- Lowther, C. Administrative Law ing liability payments previously Judge; and Workers’ injured This, turn, workers. could en- Board, Cross-Appellees. courage employers to gradually terminate injured workers, who might otherwise re- 2003-SC-1027-WC, Nos. main gainfully employed, in order to obtain 2003-SC-1042-WC. coverage new at a premium. reasonable Supreme Kentucky. Court of This holding will also voluntary inhibit payments inju- and settlements of gradual Feb. ry claims if an otherwise liable insurer believes can reduce or pay- avoid future *8 by canceling
ments coverage. Would
KEMI have settled with if it had liability
known that expired its for benefits days injury?
fourteen after the I date of
hope we have not made this unfortunate solely the law because
did, fact, against settle claim KEMI
and, thus, recover could additional benefits
only against Century. However, I am fact,
aware no other than the claimant’s
settlement with the responsible otherwise