Timely notice provided to employer after physician's diagnosis

In Kentucky, a worker is generally not required to provide notice of a gradual injury or cumulative trauma until a physician diagnoses a gradual, work-related injury.

Case name: Drayer v. Reese, No. 2011-CA-001502-WC (Ky. Ct. App. 08/03/12, unpublished).

Ruling: In an unpublished opinion, the Kentucky Court of Appeals held that a therapist provided timely notice of her injury to her employer and remanded the case for a determination of whether she sustained a temporary disability.

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What it means: In Kentucky, a worker is generally not required to provide notice of a gradual injury or cumulative trauma until a physician diagnoses a gradual, work-related injury.

Summary: A physical therapist began experiencing pain in her left scapular area while assisting patients. Her symptoms progressively worsened. She did not immediately inform her employer about her pain, but she discussed it with a coworker one month after she first experienced pain. The therapist self-treated her symptoms for one year. When her symptoms continued to worsen, she completed an "incident report." After another flare-up in her condition, her coworker referred her for outside medical treatment. She was diagnosed with cervical radiculopathy. Later, she was also diagnosed with adjustment disorder, depression, and anxiety. She sought workers' compensation benefits. The Kentucky Court of Appeals held that she could be entitled to benefits for a temporary disability and sent the case back to the administrative law judge.

The employer argued that the therapist failed to provide timely notice of her injury. The ALJ found that the therapist was qualified to make a diagnosis of a gradual, work-related injury on her own without consulting a physician. The court disagreed, noting that a physical therapist does not fall within the definition of a "physician." Her obligation to provide notice was not triggered until more than one year after her symptoms began when a doctor informed her that her symptoms were caused by her work activities. Although the therapist provided notice to her employer before the physician's diagnosis, the court said she was not prohibited from doing so.

The court explained that the ALJ did not address whether the therapist suffered from a temporary disability from her cumulative trauma. An independent medical examiner diagnosed her with a "work-related musculoskeletal strain." The evidence supported a finding that the therapist suffered at least a temporary disability, so the court sent the case back to the ALJ. If the ALJ found a temporary work-related physical injury, she would be entitled to a permanent disability award for her secondary psychological claim.

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October 22, 2012

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