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Auburn Hosiery Mills5/19/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIC PROCEDZIRE PROMULGATED BY THE SUPREME COURT.9 CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Although the claimant's application for benefits was filed more than two years after his work-related back injury , an Administrative Law Judge (ALJ) determined that the period of limitations was tolled by the employer's failure to notify the Department of Workers' Claims (Department) of its refusal to pay temporary total disability (TTD) benefits when he underwent surgery for the effects of the injury. H. E. Neumann Co. v. Lee, 975 S.W.2d 917 (Ky. 1998). The Workers' Compensation Board (Board) reversed, stating that the surgery occurred long after the injury and that there was no evidence the claimant informed his employer that it was due to the injury. Reversing and reinstating the award, the Court of Appeals pointed to the claimant's unrebutted testimony that he had inquired about disability benefits when he missed work and also about payment of his medical bills. We affirm.
The claimant, a Bosnian national, was born in 1980. He completed high school and one year of college in Germany before coming to the United States in November, 1999. In January, 2000, he began working for the defendant-employer, supplying yarn to knitting machines. At the time, he did not speak English.
On April 23, 2000, the claimant felt severe pain in his low back while helping a co-worker lift a large box of yarn that weighed 50-60 pounds. The co-worker accompanied him to their supervisor and informed the supervisor of the incident. The claimant testified that he was still unable to speak English and didn't ask about a doctor. His supervisor gave him a belt, and he completed the shift. He spoke with a case worker at the refugee office who made an appointment with Dr. Fee and then accompanied him to the appointment to translate.
Dr. Fee examined the claimant at Western Kentucky Orthopaedic Associates on May 23, 2000. The claimant gave a history of back pain, sometimes into the right leg, that began while bending over to pick up something at work. He stated that the initial pain was severe and that for a moment his eyes went black and he felt lightheaded. Dr. Fee diagnosed a lumbar strain injury . He imposed no specific restrictions but prescribed back exercises, anti-inflammatory medication, and muscle relaxers and scheduled a follow-up appointment.
On November 6, 2000, the claimant slipped in oil and fell, after which he experienced severe back pain and was unable to move. He was taken by ambulance to Logan Memorial Hospital, where his complaints included pain in the back and down the right leg. He was diagnosed with an acute lumbar strain and returned to work the following day.
On August 17, 2001, the claimant experienced back pain while working. He testified that he informed his supervisor immediately. Logan Memorial Hospital records dated August 18, 2001, indicate that the claimant sought treatment primarily for pain in the left flank but also for chest and back pain. He was diagnosed with acute renal colic.
On September 18, 2001, the claimant returned to Dr. Fee, complaining of increased back and leg pain since an injury about a month earlier. He also complained of numbness and tingling down the back of the leg to his heel, but x-rays revealed a normal lumbar spine. Dr. Fee diagnosed a possible herniated disc and ordered an MRI. The September 26, 2001, MRI report noted a small to moderate right para
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