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Does Anyone Else Feel Sick?

Statute of Limitations No Longer a Limitation to Cumulative Trauma Claims. Does Anyone Else Feel Sick?

It's that time of year again. Kids are back in school, the first batch of illnesses are making the rounds, and a fresh batch of flu vaccine is now available from your family doctor. What we can't seem to immunize ourselves against are sickening decisions from our appellate courts, which seem to be coming fast and frequent these days. This month's Consol of Kentucky, Inc. v. Goodgame, 2014-SC-000333-WC (9/24/15, To Be Published), is going to run rampant through our system.

Mr. Goodgame worked for Consol in Kentucky from 1992 to 7/31/09. He then accepted a position with Consol in Virginia and worked there from 8/1/09 - 1/19/10, when he took early retirement. He filed an application on 1/17/12 alleging cumulative injuries resulting from his duties as a miner. The ALJ (Miller) dismissed the claim as being filed outside the statute of limitations, which she found began to run on 8/1/09 when Goodgame stopped working in Kentucky. The Board vacated the ALJ's finding with regard to the statute of limitations, deciding that she must determine when Goodgame's injury became manifest. The Court of Appeals affirmed and this appeal resulted.

In cumulative trauma claims, the statute of limitations in KRS 342.185(1) begins to run when the worker discovers that an injury has been sustained. He does not have to self-diagnose, and therefore does not have to give notice (and the statute does not begin to run) until he is told by a medical professional that the condition is work related. The ALJ did not make this determination; she simply chose the last day he worked. This is not correct, and this must be fixed on remand. However, Consol argued that KRS 342.185(1) is both a statute of limitations and of repose, meaning it both limits the time frame for filing and potentially bars a plaintiff's claim before his cause of action can accrue. This is a true statement. The occupational disease statute (KRS 342.316) works like this: it says both how long the plaintiff has to file a claim (3 years) and then states that "no claim may be filed" more than 5 years after the date of last exposure. KRS 342.185 does not have this type of language. However, it does act as both in single-event trauma claims (since there is no "manifestation" rule for such claims), and in 2006 the Court decided that the same rule should apply for cumulative trauma claims (See Manalapan Mining v. Lunsford, a hearing loss case).

Still with me? OK, now brace yourself.

After making the above statements, the Supreme Court said: "...we now disagree with the holding in Lunsford that the repose aspect of that statute is triggered by the date of last exposure..." The Court cited several reasons. First, they determined that there is clear legislative intent for the same date to trigger both limitations and repose. Therefore, "the repose aspect of KRS 342.185(1) must also begin to run on the date the statute of limitations begins to run - the date a claimant is informed of a work-related cumulative trauma injury." Second, Lunsford was a hearing loss case, which requires consideration of the date of last exposure or date last worked. KRS 342.185(1) does not require such considerations. Third, the Court noted that the Act should be liberally construed in favor of workers, and Lunsford did exactly the opposite. To that extent, it was overruled.

The crux:

... KRS 342.185(1) acts as both a statute of limitations and a statute of repose. For single traumatic event injuries the running of both periods begins on the date of accident. For cumulative trauma injuries the running of both periods begins on the date the injured employee is advised that he has suffered a work-related cumulative trauma injury."

The ALJ was told to determine when Goodgame was told he had suffered a work-related cumulative trauma injury. He should have filed his claim within two years of that date.

Comment: If you feel ill, you are in good company. Instead of the statute of repose ending two years from when the plaintiff stopped working for the employer (this is what happened in Lunsford), it now starts when the plaintiff is advised that he "has suffered a work-related cumulative trauma injury." This can happen at any time down the road, effectively eliminating the statute of repose altogether!

What the Court has done is clear a path for cumulative trauma claims to be filed anytime, without concern for either notice or limitations. All they have to do is claim that their first notice of their condition was when they obtained an IME and that doctor told them they had a cumulative injury. This can happen 5 years after they stop working, or 10 years, or 15...you get the idea.

The potential exposure is staggering. Employers and their carriers now have no security at all that the opportunity to file a cumulative trauma claim has truly ended. This could trigger an epidemic of bogus claims, filed in an effort to get a settlement or open medical, all of which will need to be defended aggressively. It is time (past time, really) for the insurance industry to galvanize and begin pushing back against these wholesale changes.

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