IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0313-WC
MARQUIS CARTER APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2022-CA-1380 WORKERS’ COMPENSATION NO. WC-21-00849
WEBASTO ROOF SYSTEMS; THOMAS APPELLEES POLITES, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Marquis Carter appeals from an opinion of the Court of Appeals affirming
a decision of the Workers’ Compensation Board, which in turn, affirmed in part
and vacated in part an opinion and order issued by the Administrative Law
Judge (“ALJ”). Carter asserts two contentions of error. First, he argues the
Court of Appeals and the Board erred by affirming the ALJ’s determination of
his permanent impairment rating. Second, he argues the Court of Appeals
erred by affirming the Board’s decision to vacate and remand for additional
findings regarding the date his cumulative trauma injury manifested for statute
of limitations purposes. We affirm. FACTS AND PROCEDURAL HISTORY
In his Form 101, filed June 8, 2021, Carter alleged he sustained a work-
related cumulative trauma back injury as an assembly line worker at Webasto
Roof Systems, due to repetitive lifting, twisting, and pulling. He claimed his
painful back symptoms manifested on August 20, 2019, after which he sought
medical attention from his primary physician, Dr. Shannon Roberts, on August
23, 2019, and was subsequently informed by his pain management physician,
Dr. Brandon Gish, that the condition was possibly caused, at least in part, by
work-related cumulative trauma. In response, Webasto filed a Special Answer
raising several affirmative defenses, including the running of the applicable
two-year statute of limitations based on Carter allegedly having been informed
that earlier low back complaints treated by Dr. Roberts in 2016 were likewise
possibly work-related.
Carter was deposed on September 14, 2021. He testified he had
sustained no back injuries prior to being hired at Webasto in 2013.
Initially, Carter worked for about one year in the factory’s receiving
department where he operated a stand-up forklift and experienced back
discomfort “somewhat,” requiring occasional over-the-counter anti-
inflammatory medication. He thereafter worked about two years in the service
department where frequent lifting of 15-20 pound glass panels caused similar
sporadic back discomfort. Ultimately, he was transferred to the final assembly
department where his work activities intensified, requiring him to stand for
prolonged periods while engaging in repetitive screwing, turning, bending, and
2 lifting of the glass panels. He testified it was there that his “back problems
kind of accumulated over the years” with no specific injury, but “really started”
to worsen in 2019. Though no physician ever specifically informed him his low
back complaints had been caused by his work activities, Carter admitted he
had been told “it’s possible.”
Carter testified his back pain intensified significantly by August 20,
2019, necessitating evaluation by Dr. Roberts on August 23, 2019. Over time,
Dr. Roberts provided muscle relaxers and cortisone shots, prescribed physical
therapy, performed diagnostic tests including an MRI, and referred Carter to
Dr. Brandon Gish for pain management. He reported both Dr. Roberts and Dr.
Gish were continuing to provide treatment.
Carter worked under medically imposed physical restrictions until
January 19, 2021, but has not worked since that time. Based on advice
provided by the human resources department at Webasto, he testified he had
applied for and received short-term and long-term disability insurance benefits.
He was terminated by Webasto in January of 2022, and has since applied for
Social Security disability benefits.
Carter next testified at the March 16, 2022, final hearing. He admitted
to having seen Dr. Roberts in 2016 for back complaints but asserted symptoms
had fully resolved, requiring no further treatment relative to back problems
from 2017 until his return to her office on August 23, 2019. Though he had
experienced some occasional back discomfort during that period, these
sporadic episodes were never as severe as the unrelenting pain he had
3 experienced since August of 2019. He testified Dr. Gish had informed him his
current back problems could have possibly arisen due to the nature of his work
activities at Webasto, and he acknowledged Dr. Roberts had apprised him
similarly regarding his back complaints in 2016.
At the time of the hearing, he remained under the medical care of both
Dr. Roberts and Dr. Gish for severe low back and bilateral lower extremity
pain, receiving ongoing prescriptions for muscle relaxers and pain medications
and referrals for additional physical therapy. He admitted he was incapable of
returning to his former work activities and acknowledged his termination had
been due to the exhaustion of his leave time.
The medical records of Dr. Roberts revealed Carter was examined on July
11, 2016, at Baptist Health for low back pain. More particularly, Dr. Roberts’
assistant, Sarah Grimm, PA, assessed “Pain secondary to repetitive pressure on
the area related to job.” It was noted Carter had not been appropriately rotated
between various workstations and a letter was sent to Webasto imposing
physical restrictions relative to the specific job activities causing his
discomfort. Following an inconsequential recheck on July 20, 2016, Dr.
Roberts’ medical office continued to follow Carter relative to various medical
needs unrelated to any further back complaints. Interestingly, he reported no
back pain at his annual physical examination on July 24, 2019.
A month later, on August 23, 2019, however, Carter returned with
complaints of severe back pain. It was noted Carter “does a lot of heavy lifting
at work.” Due to the severity of his symptoms, pain injections were
4 administered on that date and on follow up examinations on September 1,
2019, and January 13, 2020. Subsequently, a June 6, 2020, pelvic and
abdominal CT scan demonstrated facet degenerative joint disease at L4-5, and
November 12, 2020, lumbar x-rays showed no fracture but multilevel
spondylosis changes, most advanced at L4-5. A February 19, 2021, lumbar
MRI confirmed multilevel spondylosis, most pronounced at L4-5, with moderate
spinal canal and neuroforaminal narrowing.
The medical records of KORT Physical Therapy revealed Carter
underwent initial evaluation for physical therapy on March 18, 2021, at which
time a treatment plan recommended a four-week course of physical therapy,
with two sessions performed each week.
The medical records of Dr. Brandon Gish at Commonwealth Pain and
Spine revealed Carter underwent an initial evaluation on February 4, 2021, for
low back pain, with the medical history indicating an onset of symptoms two
years previously due to a work injury, and a recommendation for a lumbar
MRI. Two months later, on April 7, 2021, Carter’s ongoing symptoms were
listed as fatigue, lower extremity swelling, back pain, neck pain, joint pain,
muscle pain, limited motion, numbness and shooting pain, and insomnia, for
which a course of nonsteroidal anti-inflammatory drugs (NSAID) and pain
medications were prescribed. Due to persistent severe pain, lumbar medial
branch nerve blocks at L3-L5 were performed, with consideration of future
medial branch blocks on the left and right, along with radiofrequency ablation.
5 Dr. Gregory Snider performed an independent medical evaluation (IME)
at Webasto’s request on September 28, 2021, which included a medical
history, review of medical records, and physical examination. Dr. Snider
diagnosed Carter as having
low back pain radiating to his left thigh. Imaging studies revealed degenerative change. In my opinion, this is likely multifactorial, arising from age, obesity, prior knee injury with altered gait, and potentially a work-related component. It is clear from the medical records that Mr. Carter was at least intolerant to certain activities at Webasto and was aware of a work-related etiology as far back as 2016.
Regarding causation, Dr. Snider further elaborated:
Mr. Carter has evidence of multilevel degenerative change, somewhat in advance of what one would expect based solely on his age and habitus. These changes were symptomatically aggravated by his work at Webasto, at least according to the medical record. . . .
As above, Mr. Carter’s complaints are multifactorial and other contributing causes are age, habitus, altered gait from remote left knee injury, diabetes, and other avocational activities.
Dr. Snider concluded Carter reached maximum medical improvement as of
January 13, 2021, and assigned a whole person impairment rating as follows:
According to the AMA Guides, 5th Edition, 1 for Mr. Carter’s lumbar complaints, estimate 6% WPI. In my opinion, half of this is apportioned to avocational factors and half to aggravation over the last four or so years of his employment at Webasto. Total: 3% WPI for assumed cumulative trauma.
In a supplemental report issued on November 22, 2021, Dr. Snider noted all
parties agreed a work-related back injury occurred in 2016. Having assumed
1 American Medical Association (AMA), Guidelines to the Evaluation of
Permanent Impairment (5th ed. 2000).
6 Carter’s back pain persisted since that date, Dr. Snider determined the work-
related impairment would have been established in 2016.
Dr. Gregory Nazar performed an IME at Carter’s request and issued a
rebuttal report on December 8, 2021. He agreed with Dr. Snider’s assessment
of a 6% AMA impairment rating but disagreed in relation to manifestation and
apportionment.
Regarding the onset of Carter’s symptomatic condition, Dr. Nazar opined
Carter’s cumulative trauma low back injury had manifested on August 20,
2019, when the severity of his pain caused him to seek medical attention.
Regarding apportionment, Dr. Nazar attributed 80% of Carter’s back
condition to pre-existing conditions and only 20% to the cumulative traumatic
impact of his work. Carter’s pre-existing conditions included his genetic or
familial predisposition for developing symptomatic degenerative spinal
conditions, his morbid obesity demonstrated by carrying 280 pounds on a
5’11” frame, his advancing age of 62 years, and his history of ongoing
symptomatic degenerative changes which had previously resulted in milder
back discomfort. Though Dr. Nazar opined Carter had qualified for no AMA
impairment rating prior to August 20, 2019, he nonetheless concluded these
pre-existing conditions had already placed Carter on a progressive course for
development of increasingly painful low back symptoms even absent his work
environment, which merely accelerated the occurrence.
On March 16, 2022, the ALJ issued a Benefit Review Conference (BRC)
Order and Memorandum, which listed the following contested issues: (1)
7 injury under the Act; (2) work-relatedness/causation; (3) statute of limitations;
(4) temporary total disability benefits; (5) KRS 2 342.730 benefits; (6) pre-
existing disability and/or impairment exclusion; (7) credit/offsets; and (8)
unpaid or contested medical expenses. Additionally, the ALJ noted that the
timeliness of Webasto’s statute-of-limitations defense had been placed into
issue.
Upon consideration of the evidence, the ALJ issued an opinion, award,
and order on May 16, 2022. The ALJ determined Carter had carried his
burden of establishing a compensable work-related injury. The ALJ awarded
Carter medical expenses and permanent partial disability benefits based upon
the 3% impairment rating assessed by Dr. Snider with enhancement by the “3”
multiplier 3 because Carter could not return to his pre-injury duties. The ALJ
further rejected Webasto’s statute of limitations defense based on Carter’s
testimony that his 2016 back complaints had completely resolved. As found by
the ALJ, Carter’s testimony in this regard was supported by the medical
records of Dr. Roberts which did not reflect any treatment for back pain from
late 2016 until August 23, 2019. The ALJ further relied on Dr. Nazar’s opinion
that Carter had a 0% impairment rating prior to August 2019.
Carter filed a petition for reconsideration arguing he was entitled to
benefits based on the entire 6% impairment rating, while Webasto filed no
petition. The ALJ granted Carter’s petition for reconsideration in part,
2 Kentucky Revised Statutes.
3 See KRS 342.730(1)(c)1.
8 modifying the opinion and award to correct a factual misstatement regarding
Dr. Nazar’s assessment. However, the ALJ denied reconsideration of his
decision to award benefits based on the 3% work-related AMA impairment
rating as assessed by Dr. Snider. Thereafter, Carter appealed to the Board and
Webasto cross-appealed.
In a decision entered on October 28, 2022, the Board affirmed in part
and reversed in part. The Board affirmed the ALJ’s determination of benefits
based upon the 3% work-related AMA impairment rating. However, the Board
vacated the award of benefits and remanded to the ALJ for additional findings
pertaining to the manifestation date of Carter’s cumulative trauma injury for
statute of limitations purposes. The Board concluded the ALJ failed to
undertake the proper analysis of KRS 342.185(3), which provides a cumulative
trauma claim shall be filed “within two (2) years from the date the employee is
told by a physician that the cumulative trauma is work-related.” On remand,
the Board directed the ALJ to
make additional findings and determine the date of manifestation pursuant to the correct legal standard set forth in the statute and pertinent cases. . . . After doing so, the ALJ shall resolve the statute of limitations issue and make determination as to whether Carter filed his Form 101 within two years of the date of manifestation. Should the ALJ determine the claim was not filed within the two-year statute of limitations, he shall enter an amended order dismissing Carter’s claim for failure to comply with the statute of limitations, KRS 342.185(3). Should the ALJ determine Carter’s claim was filed within the two-year statute of limitations pursuant to KRS 342.185(3), he may reinstate his order and award based upon the impairment rating assessed by Dr. Snider.
9 Carter petitioned the Court of Appeals for review of the Board’s decision.
The Court of Appeals affirmed the Board in a unanimous opinion. Carter v.
Webasto Roof Sys., No. 2022-CA-001340-WC, (Ky. App. June 9, 2023). He now
appeals to this Court as a matter of right. 4
STANDARD OF REVIEW
Review from an ALJ’s decision on a workers’ compensation claim
proceeds on three levels. Lexington Fayette Urb. Cnty Gov’t v. Gosper, 671
S.W.3d 184, 199 (Ky. 2023). “The Board performs the first level of review[,]” as
set forth in KRS 342.285, and functions essentially to correct error, “though
without the power of constitutional review.” Id. The Court of Appeals performs
the second level of review from the decisions of the Board pursuant to KRS
342.290 with the purpose of correcting the Board only where “the Court
perceives the Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so flagrant as to
cause gross injustice.” Id. (quoting W. Baptist Hosp. v. Kelly, 827 S.W.2d 685,
687-88 (Ky. 1992)). Further review by this Court is available “as a matter of
right under Section 115 of the Kentucky Constitution[,]” and is meant to
address “new or novel questions of statutory construction, or to reconsider
precedent when such appears necessary, or to review a question of
constitutional magnitude.” Id. at 200 (quoting W. Baptist, 827 S.W.2d at 688).
4 KY. CONST. § 115; Vessels ex rel. Vessels v. Brown-Forman Distillers Corp., 793
S.W.2d 795, 798 (Ky. 1990).
10 Thus, we “will not simply ‘third guess’ the decisions of the Board and the Court
of Appeals upon the same evidence.” Id.
In determining disputed issues of fact, “the ALJ as ‘the finder of fact . . .
has the authority to determine the quality, character and substance of the
evidence presented.’” Id. at 198 (quoting Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985)). Additionally, “an ALJ has sole discretion to
decide whom and what to believe, and may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether it comes from
the same witness or the same adversary party’s total proof.” Id. (quoting
Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)). On
appellate review, “the standard of review is whether the [factual] finding was
‘clearly erroneous,’ meaning ‘unreasonable under the evidence presented.’” Id.
at 199 (quoting Letcher Cnty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 126 (Ky.
2019)). However, we review “questions of law and the application of law to
facts under the de novo standard.” Id.
ANALYSIS
Carter first argues the Court of Appeals and Board erred by affirming the
ALJ’s reliance on Dr. Snider’s opinion attributing half of the 6% AMA
impairment rating to nonoccupational factors. 5 He specifically contends Dr.
Snider’s opinion did not comply with apportionment analysis set forth by
5 Carter also argues his own expert, Dr. Nazar, failed to comply with the AMA
Guides regarding apportionment of causation. However, as the ALJ did not rely on Dr. Nazar’s opinions as to the impairment rating, we need not address this issue.
11 Section 1.6 on pages 11-12 of the AMA Guides, and that the apportionment
further failed to comply with the decision of the Court of Appeals in Finley v.
DBM Techs., 217 S.W.3d 261 (Ky. App. 2007). We disagree.
Initially, we note Carter’s argument concerning compliance with the AMA
Guides was not listed as a contested issue in the BRC order. However, Carter
had previously listed this issue as contested in a disclosure filed on June 28,
2021. Further, the issue was argued and briefed by Carter at all levels of
litigation. Apparently, the ALJ, Board, and the Court of Appeals treated the
issue as properly preserved or otherwise subsumed within the work-
relatedness and causation arguments. Perceiving no indication this issue was
waived, we turn to the merits.
KRS 342.730(1)(e) specifically precludes “impairment for nonwork-related
disabilities” from being considered in determining the extent of a claimant’s
partial permanent disability. Tudor v. Indus. Mold & Mach. Co., Inc., 375
S.W.3d 63, 66 (Ky. 2012). In Gosper, we recently summarized the law
pertaining to work-related causation in the workers’ compensation setting as
follows:
[w]ork-related causation is a factual determination subject to the sound discretion of the ALJ, as the finder of fact. When determination of causation demands medical understanding and analysis beyond mere lay knowledge and skill, “the question is one properly within the province of medical experts” and “disregarding the medical evidence” is not justified. Medical opinions addressing causation need not be stated with absolute certainty or conclusiveness but are sufficient if expressed within “reasonable medical probability.” The mere possibility of work-related causation is insufficient. While KRS 342.0011(1) requires objective medical findings of a harmful change in the human organism to
12 establish a compensable “injury,” the statute does not limit proof of the causation of such an “injury” to objective medical findings.
671 S.W.3d at 202 (internal citations omitted). Further, “[i]t is the quality and
substance of a physician’s testimony, not the use of particular ‘magic words,’
that determines whether it rises to the level of reasonable medical probability,
i.e., to the level necessary to prove a particular medical fact.” Brown-Forman
Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).
Carter correctly cites the rule that a physician’s opinion pertaining to an
impairment rating must be based on the AMA Guides. Jones v. Brasch-Barry
Gen. Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006). However, for an
impairment rating to be properly based on, or “grounded in the Guides is not to
require a strict adherence to the Guides, but rather a general conformity with
them.” Plumley v. Kroger, Inc., 557 S.W.3d 905, 912 (Ky. 2018). Moreover, we
have long recognized “[t]he proper interpretation of the Guides and the proper
assessment of an impairment rating are medical questions.” Id. at 913
(quoting Kentucky River Enters., Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003)).
Ultimately, “this Court’s only prerogative is to evaluate the ALJ’s decision to
ensure that it is not contrary to the evidence.” Id.
We may briefly dispose of Carter’s argument regarding the proper use of
the AMA Guides by noting the absence of any medical evidence of record
criticizing Dr. Snider’s use of the Guides generally or his apportionment of
causation particularly. Moreover, in his rebuttal to Dr. Snider’s opinion, Dr.
Nazar, reported:
13 In the IME examination by Dr. Gregory Snider, he initially apportions 50% of his impairment rating to pre-existing factors and 50% to his cumulative work-related disability culminating on the date of August 20, 2019. I feel that is likely a reasonable assessment, although as you know in my IME report, I felt a little more strongly that the pre-existing component was greater (80%) in his circumstance.
(Emphasis added). Dr. Nazar reaffirmed his general approval of Dr. Snider’s
methodology stating, “It appears we both agree (at least on his initial report)
that a portion of this [6% impairment rating] should be apportioned to pre-
existing problems, as opposed to the work-related injury itself from the
cumulative lifting he was doing.” Under these circumstances, it was
incumbent on Carter to produce some affirmative evidence contradicting Dr.
Snider’s apportionment method whether by cross-examination or contrary
medical opinion. We will not substitute our independent interpretation of the
AMA Guides for that of the medical experts.
Further, we adhere to “[t]he general rule . . . that compensation must be
allowed for all of the injurious consequences flowing from the original injury,
and not attributable to an independent, intervening cause.” Ford Motor Co. v.
Jobe, 544 S.W.3d 628, 633 (Ky. 2018) (quoting Beech Creek Coal Co. v. Cox,
314 Ky. 743, 744, 237 S.W.2d 56 (1951)). Pertaining to apportionment of
causation, Kentucky workers’ compensation law recognizes a distinction
between a pre-existing dormant condition that is aroused into disabling reality
by the work-related injury and a pre-existing active condition that
independently produces all or part of the final disability. Finley, 217 S.W.3d at
14 265; see also 8 Larson’s Workers’ Compensation Law § 90.04[1]-[2] (2023). A
pre-existing dormant condition occurs
where the underlying pre-existing disease or condition is shown to have been asymptomatic immediately prior to the work-related traumatic event and all of the employee’s permanent impairment is medically determined to have arisen after that event—due either to the effects of the trauma directly or secondary to medical treatment necessary to address previously nonexistent symptoms attributable to an underlying condition exacerbated by the event[.]
Finley, 217 S.W.3d at 265. Conversely, a pre-existing active condition “must
be symptomatic and impairment ratable pursuant to the AMA Guidelines
immediately prior to the occurrence of the work-related injury.” Id. An
employer bears the burden to prove the existence of a pre-existing condition.
Id.
However, this Court has also recognized, in certain “atypical” situations,
“the employee’s pre-existing medical condition cannot be classified as either
active or dormant.” Wetherby v. Amazon.com, 580 S.W.3d 521, 530 (Ky. 2019).
Indeed, every deduction from an impairment rating is not necessarily a “carve-
out” under Finley, but instead, may result from the mandatory application of
the AMA Guides. Id. at 528. Indeed, page 381 of the AMA Guides specifically
discusses the apportionment of causation to a spinal injury as follows:
If requested, apportion findings to the current or prior condition, following jurisdiction practices and assuming adequate information is available on the prior condition. In some instances, to apportion ratings, the percent impairment due to previous findings can simply be subtracted from the percent based on the current findings. Ideally, use the same method to compare the individual’s prior and present conditions. . . . Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be less than an ideal estimate.
15 (Emphasis added).
Here, Dr. Snider opined Carter’s “age, habitus, altered gait from remote
left knee injury, diabetes, and other avocational activities” were independent
contributing causes to the back pain he experienced. This assessment was
based on Dr. Snider’s physical examination and review of Carter’s pertinent
medical history and records. He attributed these nonoccupational factors to
account for 50% of the total current 6% impairment rating. Importantly, Dr.
Snider neither made any conclusion these pre-existing conditions were
dormant and otherwise aroused by the cumulative work-related trauma, nor
did he specifically opine these pre-existing conditions were actively
symptomatic at the time Carter asserted the manifestation of cumulative
trauma.
Thus, as in Wetherby, the present appeal is distinguishable from Finley,
217 S.W.3d at 266, where the undisputed medical evidence compelled a finding
the claimant’s work-related injury exacerbated a pre-existing dormant
condition, and the only question was whether the pre-existing condition was
aroused permanently or merely temporarily. In the absence of contrary
medical evidence, we view any purported deficiencies concerning the lack of
explanatory detail in Dr. Snider’s report to merely affect the weight and
credibility of the evidence, the evaluation of which is committed to the sound
discretion of the ALJ. We decline Carter’s invitation to expand the holding of
Finley, and further conclude the Board and the Court of Appeals were correct
16 in determining that Dr. Snider’s report constituted substantial evidence upon
which the ALJ was entitled to rely.
Carter next argues the Court of Appeals erred by affirming the Board’s
decision to vacate the award and remand to the ALJ for additional findings
regarding the manifestation date for his cumulative trauma. We disagree.
In 2018, the General Assembly enacted KRS 342.185(3) to set forth the
applicable limitations period in cumulative trauma claims as follows:
The right to compensation under this chapter resulting from work- related exposure to cumulative trauma injury shall be barred unless notice of the cumulative trauma injury is given within two (2) years from the date the employee is told by a physician that the cumulative trauma injury is work-related. An application for adjustment of claim for compensation with respect to the injury shall have been made with the department within two (2) years after the employee is told by a physician that the cumulative trauma injury is work-related. However, the right to compensation for any cumulative trauma injury shall be forever barred, unless an application for adjustment of claim is filed with the commissioner within five (5) years after the last injurious exposure to the cumulative trauma.
(Emphasis added). This provision was intended to
provide[] a bright-line two-year limitation period from the date the plaintiff is told her cumulative trauma is work-related. Additionally, it establishes a firm five-year repose period from the date of last exposure.
Anderson v. Mountain Comprehensive Health Corp., 628 S.W.3d 10, 15 (Ky.
2021). “[T]he manifestation date . . . [is] the date a claimant is informed by a
physician that her cumulative trauma injury is work-related[.]” Ford Motor Co.
v. Duckworth, 615 S.W.3d 26, 32 (Ky. 2021). We have held “the manifestation
date is a necessary determination in cumulative trauma injury claims.” Id. at
17 33. Such a proper determination is required to establish “whether the claimant
filed his claim within two years of that date.” Id.
Here, by awarding benefits, the ALJ obviously rejected Webasto’s
argument that Carter’s claim was time barred due to his present debilitating
chronic low back symptoms and limitations being linked to the transient acute
complaints reported in 2016. However, the ALJ made no explicit factual
determination of when Carter was informed by a physician that his current
disabling condition and complaints were caused by work-related cumulative
trauma, thereby establishing a manifestation date congruent with the
requirements of KRS 342.185(3).
Thus, we agree with the Court of Appeals and the Board that the ALJ’s
findings did not comport with KRS 342.185(3). And, because the Board retains
authority under KRS 342.285 (2)(c) to determine whether an award conforms
with KRS Chapter 342 “regardless of whether the particular error in applying
the law . . . was contested by a party,” we hold Webasto’s failure to file a
petition for reconsideration on this issue did not preclude the Board from
remanding to the ALJ for a factual determination of the manifestation date and
application of the appropriate legal standard to establish the claim’s timeliness.
See Whittaker v. Reeder, 30 S.W.3d 138, (Ky. 2000).
We reject Carter’s assertion that remand for additional findings would be
an exercise in futility. Specifically, his argument that no evidence suggests any
physician ever informed him that his injuries were work-related is belied by our
review of the record. At the final hearing, Carter himself testified:
18 My doctor told me that—that this came—could come from just repetitive working, and over the years . . . things take wear and tear on you, you know. I went to a—a Dr. Gish, and Dr. Gish had said that.
Moreover, while other evidence of record may be equivocal, it, separate from
Carter’s own testimony, is sufficient to support a contested factual issue
relative to Webasto’s limitations defense. Putting aside Webasto’s continued
insistence that any cumulative trauma low back injury manifested in 2016,
page 18 of Dr. Gish’s April 16, 2021, medical record notes the onset of work-
related low back pain dating back “2 years: 2018[.]” Additionally, the medical
records from Carter’s initial evaluation with KORT therapy indicate June 8,
2019, as the onset date of injury. Alternatively, the records of Dr. Roberts
appear consistent with Carter’s claimed manifestation date of August 20, 2019,
and Dr. Nazar likewise adopted that date as the onset of Carter’s current
symptomatic condition.
Confronted by such conflicting evidence, it would be inappropriate for
this Court to invade the province of the trier of fact by inferring a manifestation
date from the ALJ’s award or otherwise making an independent finding. Thus,
we express no opinion regarding the appropriate manifestation date. On
remand, the ALJ, as trier, must exercise its discretion to make a finding in
accordance with KRS 342.185(3) based on its view of the evidence as a whole,
and thereafter apply the appropriate legal standard to weigh Webasto’s
limitations defense.
Accordingly, the decision of the Court of Appeals is hereby affirmed.
19 All sitting. VanMeter, C.J.; Bisig, Conley, Keller, and Nickell, JJ.,
concur. Thompson, J., concurs in result only by separate opinion in which
Lambert, J., joins.
THOMPSON, J., CONCURRING IN RESULT ONLY: I agree with the
majority’s resolution of the permanent impairment rating issue and agree that
our precedent requires that we vacate and remand for additional findings by
the Administrative Law Judge (ALJ) regarding the date Carter’s cumulative
trauma injury manifested to make it explicit that his workers compensation
action was not barred by the statute of limitations. However, I disagree with the
majority’s discussion of this later issue. The majority seems to imply that a
claimant being told by a doctor that a previous injury may be or is “work
related” can be interpreted in hindsight as the claimant being told that his
injury is in fact an ongoing progressive condition which constitutes a “work-
related cumulative trauma injury.” I also write separately to clarify the nature
of cumulative trauma injuries and how such diagnosis comes about.
“[C]umulative trauma injuries . . . have similarities to both single-
traumatic-event injuries and occupational diseases. Like single-traumatic-
event injuries, cumulative trauma injuries are the result of trauma and, like
occupational diseases, they develop over time.” Consol of Kentucky, Inc. v.
Goodgame, 479 S.W.3d 78, 82 (Ky. 2015). Cumulative trauma is essentially
“gradual wear and tear” or “many mini-traumas[.]” Id.; Randall v. Pendland,
770 S.W.2d 687, 688 (Ky. App. 1988).
20 The obligation to give notice and the period of limitations for a
cumulative trauma/gradual injury case is “triggered by a worker’s knowledge of
the harmful change and its cause rather than by the specific incidents of
trauma that caused it.” American Printing House for the Blind ex rel. Mutual Ins.
Corp. of America v. Brown, 142 S.W.3d 145, 148 (Ky. 2004). With a cumulative
trauma injury, the knowledge of the harmful change does not automatically
correspond with disability onset. Pine Branch Mining, LLC v. Hensley, 590
S.W.3d 268, 274 (Ky. App. 2019). It instead “becomes manifest (for purposes of
notice/limitations)” when the claimant is diagnosed with a work-related
cumulative trauma injury and advised of that fact. Id; Consol of Kentucky, Inc.,
479 S.W.3d at 84.
While Carter had the burden of proving that he was entitled to workers’
compensation benefits, the burden was on Webasco Roof Systems to prove that
his claim was barred by the statute of limitations. Letcher Cnty. Board of Educ.
v. Hall, 576 S.W.3d 123, 126 (Ky. 2019); Lizdo v. Gentec Equip. 74 S.W.3d 703,
705 (Ky. 2002).
Webesco argued that Carter suffered a cumulative trauma injury in 2016
and that his filing of his claim in 2021 was violative of the statute of
limitations. The ALJ’s findings of fact and conclusions of law flatly rejected this
argument because “the evidence does not support such a conclusion.” Instead,
the ALJ found that Carter’s testimony that he recovered from his back
problems in 2016 was credible and in accordance with his medical records
which did not reflect any treatment for any kind of low back problems from late
21 2016 until August 23, 2019. The ALJ rejected Dr. Snider’s supplemental report
that Carter’s vocational impairment would have been established in 2016 as
not persuasive as it was premised on assumptions which were not supported
by the medical record. The ALJ resolved “[t]he above evidence supports a
conclusion that [Carter] did not suffer a permanent cumulative trauma injury
in 2016, but did suffer a permanent cumulative trauma injury on August 20,
2019. As such, [Carter’s] claim is not barred by the statute of limitations.”
I interpret such findings as rejecting any claim that Carter was told by a
doctor any time prior to August 23, 2019 (when he was first seen for the acute
pain suffered on August 20, 2019), that he had a work-related cumulative
trauma injury. As explained in Consol of Kentucky, Inc., 479 S.W.3d at 84, the
ALJ should have made an explicit finding as to when Carter was first informed
by a doctor that he had a work-related cumulative trauma injury and vacating
and remanding for such a finding is appropriate. But I vehemently disagree
with the majority’s implication that the ALJ could appropriately find, based on
the information submitted to it, that Carter received such a diagnosis prior to
August 23, 2019. 6
The majority’s focus on whether Carter knew he had a work-related
injury, a repetitive work-related injury, or the onset of such injury, rather than
6 The majority opinion states that in Carter’s Form 101 he claims he was
informed by Dr. Brandon Gish, his pain management physician, sometime after seeking treatment from Dr. Shannon Roberts, on August 23, 2019, that his “condition was possibly caused, at least in part, by work-related cumulative trauma.” Thus, it was up to Webasto to disprove this initial manifestation date.
22 when Carter was diagnosed and told by his doctor that he had a work-related
cumulative trauma injury—the standard of manifestation necessary to start the
statute of limitation clock—is puzzling. The manifestation date is not the date
of symptoms of a work-related injury, but the date when a claimant is informed
of the specific diagnosis that such injury is a work-related cumulative trauma
injury. The majority opinion states:
We reject Carter’s assertion that remand for additional findings would be an exercise in futility. Specifically, his argument that no evidence suggests any physician ever informed him that his injuries were work-related is belied by our review of the record. At the final hearing, Carter himself testified:
My doctor told me that—that this came—could come from just repetitive working, and over the years . . . things take wear and tear on you, you know. I went to a—a Dr. Gish, and Dr. Gish had said that.
Moreover, while other evidence of record may be equivocal, it, separate from Carter’s own testimony, is sufficient to support a contested factual issue relative to Webasto’s limitations defense. Putting aside Webasto’s continued insistence that any cumulative trauma low back injury manifested in 2016, page 18 of Dr. Gish’s April 16, 2021, medical record notes the onset of work-related low back pain dating back “2 years: 2018[.]” Additionally, the medical records from Carter’s initial evaluation with KORT therapy indicate June 8, 2019, as the onset date of injury. Alternatively, the records of Dr. Roberts appear consistent with Carter’s claimed manifestation date of August 20, 2019, and Dr. Nazar likewise adopted that date as the onset of Carter’s current symptomatic condition.
(Emphasis added). All the alternative quoted “proof” that the majority relies
upon for its conclusion that there was an active and unresolved dispute as to
when Carter was first informed that he had a work-related cumulative trauma
injury, only supports the fact that Carter suffered a previous work-related
23 injury based on the nature of his work, had work-related low back pain in 2016
and perhaps had further work-related low back pain in 2018 or 2019, prior to
the time his condition manifested as a disabling reality that was diagnosed as a
cumulative trauma injury. 7 Such pronouncements by doctors that Carter’s
pain was work-related and even Carter’s understanding that Dr. Gish told him
his pain “came” or “could come from . . . repetitive working . . . wear and tear”
(emphasis added) and Carter’s possible report to physical therapy that the
acute pain he suffered on August 20, 2019, may have begun a couple of
months earlier, is not the same as saying that any doctor ever informed Carter
prior to August 23, 2019, that he was diagnosed with a work-related
cumulative trauma injury.
As explained in Hill v. Sextet Min. Corp., 65 S.W.3d 503, 507 (Ky. 2001), a
claimant can be aware of having certain symptoms and experiencing flare-ups
of those symptoms and even be aware that those symptoms are associated with
that claimant’s work, yet not have been informed by a doctor that this work
“was gradually causing harmful changes . . . that were permanent.” A claimant
is not required to self-diagnose a gradual work-related injury in which the
demands of work have accelerated a degenerative condition into a disabling
reality. Id.
7 Webasco only asserted that Carter’s condition was manifested in 2016. There
is no reason to consider, then, whether later dates might qualify as the initial manifestation date.
24 Because cumulative trauma injuries are gradual injuries, while the origin
of such injuries when they finally strike as a disabling reality may be very clear
when looking backwards, they are rarely clear before they become a serious
condition that requires ongoing and protracted medical treatment. Doctors
have no obligation to engage in speculation that work-related pain may actually
and eventually become permanently disabling at some point in the future.
While Carter did suffer a work-related injury in 2016, every indication is that
no one informed him at that time that he was suffering from work-related
cumulative trauma. This makes sense because indications were his injury was
temporary and either resolved or appeared to resolve, as he was able to return
to work, and apparently did not suffer any significant back pain after
recovering from that injury.
Minor back pain is a fact of life for many adults who have entered into
their middle or senior years and not worthy of any particular note unless and
until it becomes debilitating. Likewise, it is hardly surprising that a doctor
might attribute back pain to several possible causes without opining that a
worker has a work-related cumulative trauma, especially if at that time it did
not constitute an active impairment because it was not sufficiently advanced to
constitute any degree of permanent partial disability.
As Carter appeared to fully recover from his 2016 injury, there was no
need for any medical professional to look more closely at this injury and make
sweeping pronouncements about what future effects he might have from the
stresses of his physically demanding job. Simply put, the future was
25 unknowable, and doctors deal much more with diagnosing the “here and now”
based on past trauma and past and current symptoms, rather than making
diagnoses based on what may happen in the future. Carter’s doctors may have
suspected that at some point he might have permanent work-related low back
problems but not know with any certainty when or if “the straw would break
the camel’s back.” Webasto failed to prove that if Carter’s doctors had such
suspicions, they were ever communicated to Carter as a diagnosis at any point
which would serve to divest Webasto of being liable for workers compensation
benefits for Carter’s work-related injury. Accordingly, I concur in result only.
COUNSEL FOR APPELLANT:
James D. Howes Law Office of James D. Howes
COUNSEL FOR APPELLEE: Donald J. Niehaus Walton Niehaus Law, PLLC
ADMINISTRATIVE LAW JUDGE:
Hon. Thomas Polites
WORKERS’ COMPENSATION BOARD:
Hon. Michael Wayne Alvey