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Scott v. Fruit of the Loom2/22/2002
TO BE PUBLISHED
OPINION REVERSING AND REMANDING
The Appellant, Arlin Scott ("Scott"), appeals from an opinion of the Workers' Compensation Board, affirming the ALJ's award of permanent partial disability for a 1998 neck injury . On appeal, Scott contends that the ALJ should have considered his prior active occupational disability attributable to work-related, but time-barred, injuries. We agree, and reverse and remand for further findings in that regard.
Scott, born January 16, 1939, has an eighth grade education and two years of vocational school in the area of general electrician. He worked for the Appellee, Fruit of the Loom ("the employer"), for nearly forty years. On June 5, 1998, Scott injured his neck pulling wire from a ceiling. As a result of this injury , Scott was paid temporary total disability benefits ("ttd") from June 16, 1998 through December 22, 1998. He did not return to work.
Prior to June 1998, Scott sustained several low back injuries at work. He testified that he had injured his low back when he picked up a motor that weighed about 70 pounds while working in the knitting department. Scott could not recall the date of that injury ; however, records from the Department of Workers' Claims, filed as evidence by the employer, reflect that Scott had injured his back on April 24, 1980 and that he was paid 2 3/7 weeks ttd. Scott underwent low back surgery performed by Dr. Macon in 1980.
On October 5, 1984, Scott sustained another injury to his low back while lifting a motor. Scott drew workers' compensation benefits as a result of the injury, but explained that he never made a settlement for this or any prior low back injury. The records filed by the employer reflect that Scott received 19 2/7 weeks ttd as a result of the 1984 injury. Scott again injured his back at work on September 12, 1990, while changing the motor on an oscillation fan. He underwent surgery again, and was off work until the following May. Records filed by the employer reflect that benefits paid for this injury were terminated as of May 28, 1991.
On November 22, 1999, Scott filed a motion to amend his claim to include the injuries of October 5, 1984 and September 12, 1990. By order entered December 9, 1999, the ALJ denied the motion, having determined that any claim for those two injury dates was untimely filed under KRS 342.185.
Scott was treated for the subject June 1998 neck injury by Dr. Jelsma. An MRI revealed spinal stenosis at C5-6 with buckled ligamentous flavum posteriorly and spur anteriorly with cord compression. On June 30, 1998, Dr. Jelsma performed a decompressive cervical laminectomy at C5 and 6. Dr. Jelsma initially assigned a 10% impairment to the body, as a whole, which he increased to 20% according to his October 1, 1999 treatment note.
Dr. Jerold Friesen evaluated Scott on August 10, 1999. His report reflects:
The patient is a 60 year old, white male who is seen for evaluation of his neck and back. The patient relates that he has worked at Fruit of the Loom for several years and has had multiple injuries concerning his lower back and neck region. He in approximately 1979 while working as an electrician at Fruit of the Loom developed lower back pain when he lifted and twisted lifting a motor . . . . In 1984, he was lifting a motor on October 5, when he developed low back and left leg pain that was severe . . . . Dr. Macon . . . subsequently performed disc surgery at L5-S1 on October 25. He states that he did well postoperatively but still had some weakness in the left leg . . . . In 1990, he twisted his back while working. He was changing a motor and developed a sharp pain in his lower back . .
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