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Baptist Hospital East v. Jones12/16/2004
maintained that the claimant's permanent impairment and ongoing condition were related to pre-existing injuries, including the injury of September, 1999, which was barred by the statute of limitations. The employer noted that Dr. Lehmann's report referred only to the 1999 injury. Likewise, Dr. Wood determined that the January, 2000, incident aggravated the claimant's pre-existing active condition and assigned a permanent impairment to the 1999 injury. Noting that the claimant received TTD and medical expenses for the temporary aggravation of her pre-existing condition, the employer concluded that she was not entitled to permanent income benefits.
The ALJ's analysis of the claim was as follows:
The plaintiff was injured while lifting patients in September of 1999 and again in January of 2000. Temporary total disability benefits were paid through November of 2000. The statute of limitation was tolled on the September 16, 1999 injury by payment of the TTD in 2000. The plaintiff testified without objection from the defendant/employer about the two injury dates. The medical testimony presented by the defendant/employer [showed] the two dates. The defendant/employer wants to rely the `missed' statute of limitation claiming the January 16, 2000 injury is an exacerbation of the September 16, 2000 injury. The TTD paid in 2000 was for the plaintiff's back condition. It the January 16, 2000 incident is an exacerbation then the TTD paid relates back to the [actual] initial injury date of September 1999. The disability (not the impairment) did not manifest until after the January injury. The impairment is used to calculate the disability. That the impairment existed because of the September 16, 1999 injury is not fatal to the plaintiff's claim.
The back injury was the result of both and the TTD was the result of the back condition.
Dr. Wood['s] 5% impairment was used because he based his opinion upon the 5th edition of the AMA Guide. Dr. Lehmann did not.
CR 15.02 provides as follows:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleading as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
In Kroger Company v. Jones, Ky., 125 S.W.3d 241 (2004), the worker's application alleged a shoulder injury. The attached medical report referred only to a right shoulder injury, but the medical history noted that the claimant was sent back to one-handed duty and presently was being treated for problems with her left arm. The parties' medical evidence addressed both shoulder injuries. The claimant's evidence indicated that problems with the left arm were related to using only that arm, while the employer's expert testified that the left shoulder injury was not work-related. Although the employer contested notice of a left shoulder injury at the benefit review conference, it did not raise the claimant's failure to plead the inj
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