RENDERED: JUNE 9, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-1380-WC
MARQUIS CARTER APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-21-00849
WEBASTO ROOF SYSTEMS; HONORABLE THOMAS POLITES, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: Marquis Carter (“Carter”) petitions this Court for review
of a Workers’ Compensation Board (“Board”) opinion. We affirm. FACTS
Carter was employed by Webasto Roof Systems (“Employer”) for
many years. He asserts he developed low back pain resulting from repetitive work
activities in August 2019.
Carter was treated for back pain – described as work-related in
doctor’s notes – in 2016. But according to him, his prior back problems had
completely resolved before he began having back pain again in 2019.
In late August 2019, Carter saw his doctor for back pain. In June
2021, he filed a workers’ compensation claim alleging a cumulative trauma injury
to his back. Employer filed a special answer raising a statute of limitations defense
since Carter was treated for work-related back pain in 2016.
After an evidentiary hearing, the Administrative Law Judge (“ALJ”)
issued an Opinion, Award, and Order (“ALJ Decision”). The ALJ rejected
Employer’s argument that the claim was time-barred.
The ALJ found Carter’s testimony credible that he had fully recovered
from the back problems he experienced in 2016. And the ALJ noted Carter’s
primary doctor’s records showed no treatment for low back problems from late
2016 until late August 2019 despite several doctor’s visits during this time period –
including a July 2019 annual physical where Carter denied having any back pain.
-2- The ALJ concluded Carter suffered no permanent cumulative trauma injury in
2016 but did suffer a permanent cumulative trauma injury in August 2019.
The ALJ determined that Carter had proven a compensable injury and
awarded him medical expenses and permanent partial disability (“PPD”) benefits.
The ALJ noted both Dr. Nazar and Dr. Snider assigned a whole person impairment
(“WPI”) rating of six percent due to the low back condition, but apportioned part
of this impairment to non-work-related factors.
The ALJ rejected Carter’s argument that he was entitled to benefits
based on the full 6% WPI, concluding that the evidence – including unanimous
medical testimony – compelled a finding that only part of the impairment was
work-related:
As to Plaintiff’s [Carter’s] argument that he should be entitled to PPD benefits based upon a full 6% impairment rating, Plaintiff is correct that there is no degree of a pre-existing impairment rating in this matter. However, this argument ignores the fact that both medical experts apportioned a percentage of their impairment rating to non-work-related factors which precludes an award of the full 6%. Dr. Snider clearly attributed half of his 6% rating to non-work-related factors which he described as “age, habitus, altered gait from remote left knee injury, diabetes and other avocational activities.” In addition, Plaintiff’s own expert, Dr. Nazar, apportioned 80% of his 6% rating to what he called “pre-existing symptoms” but it is apparent from his conclusions that what he called “pre-existing” actually meant “non-work-related” as he specifically stated that he based his apportionment opinion on the fact that Plaintiff was “62 years of age, likely has genetic
-3- predisposition to this [low back problems], and had ongoing degenerative changes in his back with a history of milder lower back pain”. Dr. Nazar further specifically stated that only 20% of his 6% rating was due to the “work process and the cumulative work trauma itself.” Lastly, he did not state that Plaintiff suffered from a pre-existing, dormant, nondisabling condition that was aroused into disabling reality by the work activities which would have supported Plaintiff’s argument in this regard. As such, the evidence in this claim is compelling that only a portion of Plaintiff’s impairment is attributable to his work for the Defendant and therefore Plaintiff is not entitled to the full 6% impairment as an apportionment between the work-related and non-work- related causal factors is required based upon the unanimous medical testimony.
The ALJ found Dr. Snider’s opinion that half of the 6% WPI was work-related
more persuasive than Dr. Nazar’s opinion. So, the ALJ determined that Carter was
entitled to benefits based on a three percent impairment rating in reliance on Dr.
Snider’s opinion.
Carter filed a petition for reconsideration to the ALJ, again arguing he
was entitled to benefits based on six percent impairment. Carter asserted a portion
of Dr. Nazar’s report referred to an arousal of pre-existing degenerative changes.
Employer did not file a petition for reconsideration.
In the order ruling on the motion for reconsideration, the ALJ
corrected prior findings to reflect that Dr. Nazar did refer to an arousal of pre-
existing degenerative changes. But the ALJ did not ultimately change the award of
-4- benefits based on the three percent permanent impairment rating since the ALJ
relied on Dr. Snider’s opinion rather than Dr. Nazar’s opinion on this matter.
Carter then filed an appeal with the Board. Employer filed a cross-
appeal on the statute of limitations issue.
Carter argued to the Board that the apportionment method used by
both Dr. Snider and Dr. Nazar was contrary to Kentucky law. He argued there was
no medical evidence of a pre-existing, ratable, symptomatic impairment prior to
August 2019. Citing Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App.
2007), he argued the ALJ’s “carve out” of 3% of the impairment as non-work-
related was improper and not in conformity with the American Medical
Association’s Guides for the Evaluation of Permanent Impairment (5th ed.) (the
“Guides”).
Despite Carter’s arguments for a six percent impairment rating, the
Board affirmed the ALJ’s assessment of a three percent impairment rating based
on Dr. Snider’s opinion. The Board noted that the ALJ had relied exclusively on
Dr. Snider’s opinions and impairment rating, so it was not necessary to determine
if Dr. Nazar’s opinion conformed with case law or the Guides. And it further
noted Dr. Snider did not opine that Carter suffered from any “pre-existing”
condition but simply attributed 50% of the low back impairment to non-work-
related factors.
-5- Because Dr. Snider did not opine that Carter had a pre-existing active
condition, the Board held Dr. Snider did not have to “render opinions consistent
with the standards articulated in Finley” for the ALJ to rely on Dr. Snider’s
impairment rating.
The Board construed Dr. Snider’s opinions as referring to causation
but not apportionment. And it concluded Dr. Snider’s opinions and impairment
rating were substantial evidence upon which the ALJ could properly rely. As it
determined the ALJ’s findings of fact were supported by substantial evidence, the
Board deferred to the ALJ’s resolution of conflicting evidence based on the ALJ’s
assessment of the weight and credibility of the evidence concerning impairment.
Though it affirmed the ALJ on impairment, the Board remanded to the
ALJ to determine a manifestation date for the cumulative trauma injury in
accordance with statutory standards and case law. On remand, the Board directed
the ALJ to determine whether Carter filed his claim within two years of the
manifestation date – if not, the ALJ should dismiss the claim; but if so, the ALJ
could reinstate the order and award based on Dr. Snider’s impairment rating.
Carter then filed his petition for review with this Court.
Carter contends the ALJ should have awarded him benefits based on
the full 6% WPI from the low back condition and the Board erred in affirming the
ALJ. He also argues the Board erred in remanding to the ALJ to determine a
-6- manifestation date before considering afresh whether the claim is time-barred.
Employer disagrees with Carter’s arguments and further asserts that the claim must
be dismissed as time-barred.
ANALYSIS
Standard of Review
“This Court’s standard of review in workers’ compensation appeals is
well-settled in the Commonwealth.” Roberts v. Commonwealth Dodge, 644
S.W.3d 543, 544 (Ky. App. 2022). Our task is to review the Board’s opinions and
“to correct 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 Western Baptist
Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
Applying this standard of review, we must affirm the Board’s decision
based on our review of the record and applicable law.
I. No Reversible Error in Board’s Affirming ALJ’s Impairment Rating
A. No Reversible Error in Affirming Impairment Rating Based on Guides
Carter contends the Board erred in affirming the ALJ’s impairment
rating relying on Dr. Snider’s opinion concerning apportionment. Carter argues
that Dr. Snider’s apportionment analysis is not in conformity with the 5th edition
-7- of the Guides.1 As he points out, an ALJ has discretion to choose which of
conflicting medical opinions to believe, but an ALJ cannot validly rely on a
physician’s impairment rating which is not based on the Guides. Jones v. Brasch-
Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006).
Dr. Snider’s report states: “According to the AMA Guides, 5th
Edition, for Mr. Carter’s lumbar [low back] condition, estimate 6% WPI.” Next,
his report states his opinion that half of “this” is due to “avocational” or non-work-
related factors and half due to “aggravation over the last four or so years of his
employment at Webasto” – without expressly stating that this finding is according
to or based on the Guides. Dr. Snider assessed a 3% WPI for “assumed cumulative
trauma.”
Carter contends that Dr. Snider’s assessment of 6% WPI for his low
back condition is based on the Guides, but that Dr. Snider’s apportioning half of
this impairment to non-work-related factors is not based on the Guides. Certainly
Dr. Snider did not state the apportionment was based on the Guides with the same
specificity and clarity that he stated the 6% WPI for the low back condition was
based on the Guides. However, perhaps the ALJ construed Dr. Snider’s report as
1 Though a 6th edition of the Guides was apparently published by about 2022, Kentucky workers’ compensation statutes still refer to the 5th Edition and the 5th Edition still appears to apply to Kentucky workers’ compensation proceedings as of the date of this opinion. See generally Kentucky Revised Statutes (“KRS”) 342.0011(37)(a); KRS 342.262.
-8- opining that the apportionment was also based on the Guides or at least was not
inconsistent with the Guides. And Dr. Snider did not clearly state any
disagreement with the Guides or refusal to apply any provision of the Guides –
unlike the doctor’s opinion relied on by the ALJ in Jones, 189 S.W.3d at 153-54.
Although Carter argued to the Board that Dr. Snider’s apportionment
did not comply with the Guides, the Board only discussed this issue briefly. The
Board quoted Dr. Snider’s opinion that “[a]ccording to the AMA Guides,” he
estimated 6% WPI for the low back condition and that half of the impairment was
due to “avocational factors” and half due to “aggravation” over the last four or so
years of Carter’s work for Employer. And the Board noted the ALJ had the
discretion to choose which medical opinion to believe so long as that opinion was
based on the Guides (citing Jones, 189 S.W.3d at 153).
Unlike the Board’s opinion, both parties discuss the Guides in some
detail in the petition for review and response. Both parties quote portions of
Section 1.6 of the Guides (5th ed.) in their briefs. Though the Guides are not easily
accessible to this Court via Westlaw or similar resources, we obtained a copy of
Section 1.6 from the Guides (5th ed.) with assistance of the state law library and
have reviewed the text.2
2 Though not strictly required by any court rule, it would be helpful for parties which rely on portions of the Guides to attach a copy of the cited portion of the Guides in the appendices to their appellate briefs to permit easier review by the Court in the future.
-9- Carter quotes specific language in Section 1.6(b) indicating that for
spinal impairment cases, one should first calculate the current spinal impairment
and then separately calculate any pre-existing impairment before subtracting the
latter from the former. Employer suggests this is essentially what Dr. Snider did in
his report, despite Carter’s assertions this was either not done or was not done in a
proper manner according to the Guides.
Employer also points out the language about determining pre-existing
and current spinal impairments was provided as an example in Section 1.6(b). It
argues that this “carve-out” method is appropriate for acute spine injury cases but
asserts this method is not appropriate for cumulative trauma cases as: “Cumulative
trauma injuries develop over time, as do impairments to the spine as a result of
natural aging, obesity, altered gait, diabetes, etc.”
Carter argues that there should be objective and comparable data for
both the pre-existing impairment and for the current impairment. And he asserts
that to comply with the Guides, Dr. Snider should have separately discussed each
non-work-related factor such as diabetes, age, habitus, etc. and calculated a
separate impairment rating for each factor.
Employer does not agree that such specific discussion of every non-
work-related factor is required under the Guides. It asserts Dr. Snider complied
with general requirements for apportionment analysis in Section 1.6(b) such as
-10- making sure that each factor – which could include a pre-existing illness or injury
or impairment – is supported by documentation. It notes there is documentation of
non-work-related factors such as diabetes and age in Carter’s medical records,
which Dr. Snider reviewed and discussed in his reports.
Employer further asserts that the Guides do not even mention
cumulative trauma. We have not been able to verify whether any other portion of
the Guides not cited to us discusses apportionment in cases of cumulative trauma
or gradual injury or other words to the same effect. But Section 1.6 of the Guides
(5th ed.) – which was cited to us and which we have reviewed – does not explicitly
state whether principles of apportionment discussed therein apply to cumulative
trauma cases as well as to acute injury cases.
We cannot – and need not – fully resolve the interesting questions
raised by the parties about what a doctor must do to comply with apportionment
analysis requirements in the Guides in cumulative trauma cases. The Guides
appear to be written primarily for the benefit of physicians rather than lawyers or
judges. Though sometimes even a non-medical person can easily see a doctor’s
opinion is not based on the Guides based on the doctor’s express refusal to follow
the Guides, see Jones, 189 S.W.3d at 153-54, other times – such as here – the issue
of whether a doctor’s opinion complies with the Guides is subject to different
interpretations. And according to precedent from our Supreme Court which pre-
-11- dates Jones: “the proper interpretation of the Guides and the proper assessment of
an impairment rating are medical questions.” Kentucky River Enterprises, Inc. v.
Elkins, 107 S.W.3d 206, 210 (Ky. 2003).
Neither we nor the Board could properly permit an ALJ’s reliance on
a physician’s impairment rating not based on the Guides to stand pursuant to
Jones. But the parties raise interesting issues about whether Snider’s
apportionment is based on the Guides.
Under the facts here, the question of whether Dr. Snider’s
apportionment is based on the Guides requires interpretation of the Guides and is a
medical question. See Elkins, 107 S.W.3d at 210. The question we must resolve,
however, is a legal one – whether the Board properly affirmed the ALJ’s
impairment rating as not inconsistent with precedent such as Jones and as
supported by substantial evidence.
Because Dr. Snider did not explicitly state any disagreement with or
refusal to comply with the Guides, precedent does not clearly call for reversing the
ALJ’s reliance on his opinion as unsupported by substantial evidence. See Jones,
189 S.W.3d at 153-54 (ALJ’s impairment rating not supported by substantial
evidence because ALJ relied on opinion of doctor who refused to assess
impairment within percentage range provided for condition’s category in Guides
based on personal disagreement with Guides); see also Tokico (USA), Inc. v. Kelly,
-12- 281 S.W.3d 771, 775 (Ky. 2009) (distinguishing Jones from case in which the ALJ
simply chose among doctor’s opinions which interpreted the Guides differently in
rating impairment rather than relying on a doctor’s opinion explicitly refusing to
comply with the Guides).
As Dr. Snider’s opinion was not explicitly rendered in contravention
of the Guides and all or part of it was rendered “[a]ccording to the Guides,”
nothing prevented the ALJ from considering his opinion – along with other
medical evidence – in our view.
Long-standing Kentucky precedent states: “The ALJ, as the finder of
fact, and not the reviewing court, has the sole authority to determine the quality,
character, and substance of the evidence.” Square D Co. v. Tipton, 862 S.W.2d
308, 309 (Ky. 1993). And when the medical evidence is conflicting, “the question
of which evidence to believe is the exclusive province of the ALJ.” Id.
Both Dr. Nazar and Dr. Snider concluded Carter had a 6% WPI from
his low back condition according to the Guides. Their opinions differed primarily
in the degree to which they believed this impairment was caused by Carter’s work
for Employer.
The ALJ resolved this conflict in the medical opinions, finding Dr.
Snider’s conclusion that half of the impairment was due to cumulative trauma at
-13- work more persuasive than Dr. Nazar’s conclusion that a greater portion of the
impairment was due to other factors.
Carter argues that the ALJ should have accepted Dr. Snider’s 6% WPI
rating but should disregard Dr. Snider’s apportioning half of this impairment or 3%
WPI to non-work-related factors. But Carter does not point to any medical opinion
in the evidence which expressly concludes the impairment from the low back
condition was entirely due to work rather than other factors. And the ALJ
perceived he was faced with conflicting medical opinions whether half or less of
the impairment was work-related.
The ALJ chose to rely on Dr. Snider’s opinion about how much of the
impairment was work-related and thus assessed a three percent impairment rating
for a cumulative trauma work injury. In so doing, the ALJ exercised his sole
prerogative to determine which of conflicting medical opinions to believe based on
his assessment of the credibility and weight of the evidence. See Square D, 862
S.W.2d at 309.
Given the lack of explicit deviation from the Guides in Dr. Snider’s
report, we do not perceive that the Board committed a flagrant error in assessing
the evidence. Nor do we perceive that the Board overlooked or misconstrued
controlling authority such as Jones in affirming the ALJ’s reliance on Dr. Snider’s
opinion and rejecting Carter’s argument that Dr. Snider’s opinion was not based on
-14- the Guides. Thus, there is no reason for us to correct the Board concerning any
issues about whether Dr. Snider’s opinion was properly based on the Guides. See
Kelly, 827 S.W.2d at 687-88.
B. No Reason to Reverse Impairment Rating under Finley
Carter also argues that the Board erred in affirming the ALJ because,
in his view, Dr. Snider’s apportionment failed to comply with requirements in
Finley, 217 S.W.3d at 261. Employer does not expressly discuss Finley in its
response to his petition for review.
The Board noted the ALJ relied solely on Dr. Snider’s opinion so it
was not necessary to determine if Dr. Nazar’s opinion was consistent with Finley.
And it noted that Dr. Snider did not find a pre-existing active condition. So, it
concluded Finley’s standards were not applicable. The Board also construed Dr.
Snider’s opinions as relating to causation rather than apportionment. So, it
concluded Dr. Snider’s opinions and impairment ratings were substantial evidence
upon which the ALJ could properly rely.
Carter argues the Board erroneously attempted to separate issues of
apportionment and causation, noting the Guides discuss how apportionment
analysis requires allocating causation among various factors. He submits that
perhaps his argument about Finley was confusing to the Board. But he contends
Finley “indirectly applies because Dr. Snider assigned a 3% whole body
-15- impairment to conditions that were already in existence.” (Petition for Review,
page 12.) He argues but for the work injury there would be no impairment. He
asserts it only makes sense to view his work injury as an arousal of pre-existing
dormant factors into disabling reality and that Dr. Snider’s apportioning half his
impairment to non-work causes does not comply with Finley’s requirements.
Though Employer does not expressly discuss Finley or other case law
concerning apportionment of causation or pre-existing conditions in its response,
its brief suggests it does not make sense to apply the same pre-existing condition
analysis requirements from acute injury cases to cases of cumulative trauma or
gradual injury. As it points out, both cumulative trauma and certain medical
conditions such as age-related degenerative disease or diabetes may develop
gradually over time – making it hard to identify whether and to what extent certain
medical conditions pre-exist cumulative trauma or gradual injury.
In Finley, the claimant suffered an acute work injury and had a pre-
existing congenital condition (scoliosis). 217 S.W.3d at 263. The ALJ found
persuasive Dr. Clendenin’s opinion that the acute work injury “exacerbated” the
congenital scoliosis. Id. Based on Dr. Clendenin’s opinion that the acute work
injury by itself resulted in ten percent impairment to the body as a whole, the ALJ
awarded income benefits based on a ten percent impairment rating. Id. at 263-64.
-16- The ALJ did not award Finley any medical expenses related to scoliosis, but only
those directly resulting from the acute work injury. Id. at 264.
Upon review in this Court, we noted Dr. Clendenin had assessed an
impairment rating of twenty-three percent, with ten percent due to the acute work
injury and the other thirteen percent due to congenital scoliosis. Id. at 264.
Despite the ALJ’s finding the acute work injury “exacerbated” the congenital
scoliosis, we noted the ALJ did not make a finding whether the scoliosis was
previously dormant or was aroused into disabling reality by the acute work injury.
And we determined the undisputed medical evidence compelled a finding the
scoliosis was previously dormant and aroused into disabling reality by the acute
work injury. Id. at 266. As the scoliosis was not previously active or impairment
ratable, this Court reversed the ALJ’s determination that Finley could not recover
any medical expenses or income benefits related to scoliosis since a work-related
arousal of a previously dormant condition into a disabling reality is compensable.
Id. at 265-66 (citing McNutt Construction/First General Services v. Scott, 40
S.W.3d 854 (Ky. 2001)).
Finley does not explicitly limit its holdings about pre-existing
conditions to cases of acute injury rather than cumulative trauma. Nonetheless, the
ALJ here relied on a doctor’s opinion which did not explicitly find any pre-existing
condition – much less indicate that a previously dormant condition had been
-17- aroused into disabling reality. So, we do not believe the Board committed flagrant
error in assessing the evidence resulting in gross injustice nor misconstrued
precedent in holding that Finley did not apply to Dr. Snider’s opinion. See Kelly,
827 S.W.2d at 687-88.
Furthermore, instead of discussing how an acute work injury and a
pre-existing medical condition contributed to causing a worker’s impairment, Dr.
Snider’s opinion addressed what portion of the impairment from the low back was
due to a gradual work injury and what portion was due to other medical factors –
many of which gradually developed over time. This was consistent with our
statutory guidelines for determining one’s permanent impairment rating.
As defined by KRS 342.0011(35), one’s permanent impairment rating
consists of the portion of whole-body impairment caused by the injury. And KRS
342.0011(1) defines injury for these purposes as traumatic work event(s) causing
harmful change – not including the natural effects of aging – to the human body.
Dr. Snider’s opinion addressed what portion of the whole-body
impairment from the low back was due to cumulative trauma from work events and
what portion was due to non-work factors. Since Finley requirements did not
clearly apply to Dr. Snider’s opinion since he did not find a pre-existing condition
or arousal of a dormant condition into disabling reality, his opinion and impairment
ratings were substantial evidence upon which the ALJ could properly rely. So, the
-18- Board properly affirmed the ALJ’s impairment rating based on Dr. Snider’s
opinion.
In sum, we conclude that the Board did not overlook or misconstrue
controlling statutes or precedent in affirming the ALJ’s determination that Carter
did not prove an arousal of a pre-existing dormant condition into a disabling reality
and was therefore not entitled to benefits for the full 6% WPI for the low back
condition. Nor do we perceive that it committed an error in assessing the evidence
so flagrant as to cause gross injustice regarding this issue. See Kelly, 827 S.W.2d
at 687-88. So, we affirm the Board’s affirmance of the impairment rating.
Next, we consider whether the Board erred in vacating the award of
PPD benefits and medical expenses and remanding to the ALJ to determine a
manifestation date before considering afresh whether the claim was time-barred.
II. No Reversible Error in Board’s Remanding to ALJ to Determine Manifestation Date Before Determining Whether Claim Was Time-Barred
Carter contends that the Board’s remanding to the ALJ to determine a
manifestation date before considering afresh whether the claim was time-barred
was unnecessary and erroneous. In contrast, Employer does not directly challenge
the remand, but argues the claim must be dismissed as time-barred.
Employer points to medical records indicating Carter was told back
problems he was experiencing in 2016 were work-related. However, the ALJ
determined that the back problems Carter experienced in 2016 had fully resolved
-19- before Carter suffered a separate injury culminating in his seeking medical
treatment in 2019. And the Board did not expressly reverse this determination.
Furthermore, the Board did not definitively conclude whether the
claim was time-barred. Instead, the Board simply remanded to the ALJ to
determine a manifestation date before determining whether the claim was timely
filed within two years of that date. Employer did not file a cross-petition for
review on this issue.
In sum, we reject Employer’s argument that it is automatically entitled
to dismissal of the claim as time-barred based on the 2016 medical records. We
also reject Carter’s argument that the remand for further findings must be reversed.
Carter argues the Board erred in remanding for determination of a
manifestation date. He notes the ALJ accepted his assertion that prior back
problems from 2016 had fully resolved before he began experiencing back pain in
2019. Carter also points out that although the ALJ did not expressly refer to any
manifestation date, the ALJ determined he suffered a cumulative trauma injury on
August 20, 2019. He asserts he could not have been told the injury was work-
related before he suffered this permanent injury in August 2019 so his claim (filed
in June 2021) was timely filed under KRS 342.185(3).3
3 KRS 342.185(3) states: “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
-20- Carter also notes the ALJ found credible his testimony that he told
Employer’s human resources representative about his injury in August 2019.
Therefore, he argues, he timely gave notice as of that date.
Despite these arguments, we discern no reversible error in the Board’s
remanding for the ALJ to determine a manifestation date under the proper
standards before ruling on questions of notice or limitations. As noted in the
Board’s opinion, it is critical to determine a manifestation date before resolving
issues about notice or statutes of limitation or repose in cumulative trauma cases.
Prior precedent generally defined a manifestation date in cumulative
trauma or gradual injury cases to be the date the worker became aware he/she had
sustained a disabling, work-related injury. Alcan Foil Products, a Div. of Alcan
Aluminum Corp. v. Huff, 2 S.W.3d 96, 101 (Ky. 1999). Since laypersons could not
be expected to diagnose the cause of their injuries, precedent held the date of
manifestation for a gradual injury specifically referred to when a doctor provided a
diagnosis and told the worker the injury was work-related. Hill v. Sextet Min.
Corp., 65 S.W.3d 503, 507 (Ky. 2001). In other words, “notice and limitations
provisions [in KRS Chapter 342] were not triggered until [claimant] received a
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.”
-21- medical diagnosis . . . .” American Printing House for the Blind ex rel. Mutual Ins.
Corp. of America v. Brown, 142 S.W.3d 145, 148 (Ky. 2004). However, our
Supreme Court has also stated:
nothing prohibits a worker who thinks she has sustained a work-related gradual injury from reporting it to her employer before the law requires her to do so, and nothing prevents her from reporting an injury that she thinks is work-related before a physician confirms her suspicion.
Id. at 149.
After KRS 342.185 was amended in 2018, our Supreme Court
recognized that KRS 342.185(3) now establishes a “bright-line two-year limitation
period from the date the plaintiff is told her cumulative trauma is work-related.”
Anderson v. Mountain Comprehensive Health Corporation, 628 S.W.3d 10, 15
(Ky. 2021). Consistent with KRS 342.185(3) and Anderson, the Board’s opinion
stated: “the ALJ should have determined upon what date, if any, a physician
diagnosed Carter’s low back condition and informed him that it was work-related.”
(Page 17 of Board opinion, Administrative Record, page 444). Clearly, the Board
did not overlook or misconstrue controlling statutes or precedent in stating the ALJ
should have made this determination. Nor do we perceive any flagrant error in
assessing the evidence resulting in gross injustice in this regard. See Kelly, 827
S.W.2d at 687-88.
-22- Furthermore, Employer’s failure to file a petition for reconsideration
does not change our view. We recognize Carter contends Employer has no right to
question the ALJ’s factual findings because it did not file a petition for
reconsideration. See KRS 342.285(1).
But the Board not only indicated the ALJ should resolve any factual
issues about a manifestation date; it also clearly directed the ALJ to determine the
manifestation date under the proper standard set forth by law – specifically, KRS
342.185(3) and Anderson, 628 S.W.3d at 15. Thus, Employer’s failure to file a
petition for reconsideration did not preclude the Board from remanding for a
determination of the manifestation date according to proper legal standards. See
KRS 342.285(2)(c) (recognizing Board’s authority to determine if ALJ decision “is
not in conformity with” KRS Chapter 342 provisions); KRS 342.285(3)
(recognizing Board’s discretion to remand for further findings in conformity with
its directions). See also Whittaker v. Reeder, 30 S.W.3d 138, 145 (Ky. 2000)
(party’s failure to file petition for reconsideration about application of legal
precedent did not bar Board from exercising KRS 342.285(2)(c) authority to
determine if award complied with KRS Chapter 342). Rather, the Board properly
exercised its discretion to remand for further findings needed to comply with KRS
Chapter 342 pursuant to KRS 342.285(2)(c) and (3).
-23- Unlike sudden or acute injuries, a cumulative trauma injury by its
nature does not occur solely on one particular day. As the Board noted, the ALJ
did not clearly state why he found that a cumulative trauma injury occurred on
August 20, 2019. And it is not clear that this finding amounted to a finding of
manifestation date since the ALJ did not expressly state this is when a doctor
diagnosed the back condition and said it was work-related. See Anderson, 628
S.W.3d at 15.4 Given the bright-line rule recognized in Anderson – that a claim
must be filed within two years of the claimant being informed by a doctor that the
cumulative trauma injury is work-related to be timely, we discern no error in the
remand to expressly find upon what date, if any, Carter was informed by a doctor
that his cumulative trauma injury was work-related.
On remand, even though the ALJ accepted Carter’s assertion that back
problems he experienced in 2016 had fully resolved prior to his suffering a new
cumulative trauma injury for which he sought treatment in August 2019, the claim
would still be time-barred if the ALJ finds a doctor told Carter his cumulative
trauma injury was work-related more than two years prior to the filing of his claim
in June 2021. For example, if the ALJ finds on remand that a doctor told Carter he
4 Nor did the ALJ expressly find that Carter first became aware that he had suffered a cumulative trauma injury and that the injury was work-related on August 20, 2019. See Alcan, 2 S.W.3d at 101.
-24- had a cumulative trauma injury which was related to his work in February 2019,
Carter’s claim would be time-barred. But if the ALJ finds that a doctor told Carter
he had a work-related cumulative trauma injury at some date within two years of
the June 2021 filing of the claim (such as August 2019 or later), or even if the ALJ
finds no doctor had told Carter this prior to Carter’s filing his claim, Carter’s claim
would not be time-barred.
So, contrary to the parties’ arguments, it is not entirely clear whether
the claim is or is not time-barred without a finding of a manifestation date under
the Anderson standard. The Board’s remand for further findings on this issue was
neither unnecessary nor erroneous.
In sum, there is no reason for us to reverse the Board’s remand for
further findings – as we do not perceive the Board overlooked or misconstrued
controlling authority or committed egregious error in assessing the evidence
resulting in gross injustice. See Kelly, 827 S.W.2d at 687-88. So, we must affirm
on this issue as well.
CONCLUSION
For the foregoing reasons, we affirm the Board’s opinion affirming in
part the ALJ’s decision and remanding for further findings.
ALL CONCUR.
-25- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James D. Howes Donald J. Niehaus Louisville, Kentucky W. Clayton Stone, II Lexington, Kentucky
-26-