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Gray v. Trimmaster9/22/2005
TO BE PUBLISHED
OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
In defining the term "injury," KRS 342.0011(1) requires that a work-related harmful change in the human organism must be "evidenced by objective medical findings." Despite acknowledging that the employer failed to file a timely Form 111, the Administrative Law Judge (ALJ) dismissed the claimant's application for benefits after determining that there were no objective medical findings of a harmful change in the human organism and, therefore, no compensable injury. Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754 (Ky. 2001). Although the claimant maintained that unrebutted medical evidence of a 2% AMA impairment due to pain amounted to such a finding and compelled an award, the Workers' Compensation Board and the Court of Appeals affirmed.
We affirm insofar as the AMA impairment did not compel an award on these facts. Insofar as the ALJ failed to give proper effect to the employer's failure to file a timely Form 111 (Notice of Claim Denial or Acceptance), we reverse the decision to dismiss the claim and remand this matter for additional findings of fact and conclusions of law. That is not to say that a decision in the claimant's favor is compelled.
The claimant was born in 1970 and is a high school graduate. She had experience working as a seamstress and presser in a uniform shop, working in a mail room, installing insulation, assembling printers, operating a plastics machine, trimming surf boards, and working in fast food restaurants. In September, 2001, she began working for the defendant-employer, assembling and upholstering seats for automobiles. She stated that the work involved repetitive motion, forceful twisting, the use of hand tools, and lifting up to 30-40 pounds. In an application filed on February 27, 2003, she alleged repetitive motion injuries to her arms as of January 25, 2002, and sometime in September, 2002. The application indicated that there was a dispute regarding the employer's liability for compensation and the amount or duration of benefits.
As required by 803 KAR 25:010, § 5(1)(d), the claimant's application for benefits included a letter from Dr. Brooks to her attorney that stated, in pertinent part, as follows
It is my professional opinion that Ms. Gray's underlying "inflammatory process" is most likely caused by work and then further aggravated by continuing within the repetitive work environment. Unless she has had a previous complaint prior to beginning employment at this job, I would doubt that there would be a pre-existing or not work-related condition that would be underlying.
On April 3, 2003, the Department of Workers' Claims informed the employer and Travelers Indemnity of Illinois of the claim, advised the employer to contact its carrier at the time of the injury, and advised the employer and Travelers to contact counsel of their choice and to notify the Department of counsel's name and address.
On April 25, 2003, the Department issued an order, setting forth the schedule for taking proof and the date of the benefit review conference (BRC). The order gave the employer 45 days (i.e., until June 9, 2003) to file a Form 111 Notice of Claim Denial or Acceptance and stated that if the Form 111 was not filed, all allegations in the application would be deemed admitted. KRS 342.270(2); 803 KAR 25:010, § 5(2)(b). The order gave all parties 60 days to take proof (i.e., until June 24), followed by an additional 30 days for the employer and then 15 days for rebuttal by the claimant.
The employer failed to file a timely Form 111, to introduce any pro
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