RENDERED: JANUARY 21, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0357-WC
FORD MOTOR COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS
v. NO. 2018-CA-1871
WORKERS’ COMPENSATION BOARD NO. 13-WC-90836
DEBORAH DUCKWORTH; JOHN H. APPELLEES
MCCRACKEN, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Ford Motor Company appeals from the Court of Appeals’ decision
upholding an Administrative Law Judge’s (ALJ) award of benefits to Deborah
Duckworth. Ford argues that the ALJ exceeded the scope of his authority and
erred in determining the manifestation dates of Duckworth’s cumulative
trauma neck and back injuries. Because the ALJ has authority to determine
the manifestation date for cumulative trauma injury and properly applied
controlling law to the facts of this case in determining that Duckworth’s claim
was not time-barred, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Deborah Duckworth began working for Ford Motor Company in 1998 as
an assembler at the Kentucky truck plant. She worked for ten hours a day,
five days each week. Beginning in July 2007 she worked a wire loom job,
which required her to pick the correct wire loom (harness) from the side of the
line, tear the tape off, then carry the loom, weighing approximately 20 pounds,
to the front of the frame of the vehicle to place the loom. Duckworth testified
that this caused her to have to stand on her toes, as the frames were higher
than she could reach standing flat-footed. She also stated that she had to
constantly bend her neck “up and under” to see what she was hooking and
that her back was constantly slouched. She testified that she would repeat
this action approximately 300 times per day. Duckworth began having pain
and spasms in her neck and back but, despite these symptoms, she continued
her wire loom work. Prior to the wire loom job, Duckworth had not experienced
any pain nor required any treatment for her neck or back.
On November 8, 2007, Duckworth presented to the Ford medical facility
with neck pain after leaning over a frame to put in the wire loom. Again, she
continued her wire loom work despite her symptoms. She periodically visited
the Ford medical facility and received conservative treatment, such as heat, ice
and physical therapy, from Dr. Greg Ornella in 2008 and 2009. In 2010 she
experienced worsening lower back pain and again visited the Ford medical
facility several times for treatment. According to the medical records, during
these intermittent visits none of the medical providers she treated with at the
Ford medical facility informed her that her conditions were work-related. In
fact, her conditions were listed as an “illness.” Despite Duckworth informing
the Ford medical providers that she believed her conditions were due to the
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repetitive nature of her job, during some of her office visits she was told that
Ford would not pay for her care. She was eventually referred to Dr. Rodney
Chou who prescribed medication and referred her to Dr. Dean Collis for
cervical and lumbar epidural injections. She received these injections in 2010
and 2011. She took time off work for the injections and on those days, Ford
paid her temporary total disability (TTD) benefits.
Duckworth continued working the wire loom job until February 2011
when she was moved to a position that would cause less neck pain. However,
a few weeks later she was returned to a different wire loom job. Duckworth
testified that although the wire loom job was a “mandatory rotation job,”
meaning for half the day she would be rotated to a different position, the
rotation was never enforced, and she worked the wire loom job for her entire
shift. Her neck and back pain continued, and she treated at the Ford medical
facility in 2011 to 2012. Duckworth testified that although the wire loom
position was eventually eliminated, she struggled in every position in which
they placed her. Eventually she lost control of her hands and her legs became
weak. Prior to October 10, 2011, the Ford medical providers classified her
condition as an “illness.” During an October 10, 2011 visit to the Ford medical
facility, a nurse noted that her low back condition was an “injury.” The ALJ
stated that it appeared this particular office note allowed Duckworth to get a
lumbar epidural injection.
While working on April 12, 2012, Duckworth was struck on top of the
head by a piece of handheld equipment. Her neck symptoms worsened
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following this incident. Several months later, on October 2, 2012, she fell at
work which worsened her neck symptoms.
During an evaluation Dr. Chou examined Duckworth’s gait and tested
her reflexes. He opined that something was wrong. On January 7, 2013
Duckworth obtained a cervical MRI and was referred to Dr. Thomas Becherer.
Dr. Becherer placed her on restrictions beginning February 27, 2013. She
underwent neck surgery on April 9, 2013. Duckworth continued to have
weakness in her lower extremities and was referred to Dr. Richard Holt for
further examination of her lumbar spine. Dr. Holt ordered an MRI and on
November 29, 2013, performed back surgery.
Duckworth filed an Application for Benefits form on June 10, 2013. She
stated she
[s]uffered work-related cumulative trauma injury to her back and
neck in the course of working the wireloom job which manifest
11/8/07. Plaintiff continued to work and perform the wireloom job
and suffer cumulative trauma to her neck and back. Thereafter
Plaintiff worked multiple jobs that caused hastened cumulative
trauma to her neck and culminating with worsened MRI findings
on 1/17/13 and the recommendation for cervical surgery February
2013.
Later in the claim she noted the body part injured as “back and neck (11/8/07;
1/7/13).” Ford filed a special answer, alleging that Duckworth’s claims for
injuries to her neck and back manifesting on November 8, 2007, were barred
by the statute of limitations.
The ALJ held a Benefit Review Conference and the resulting order
identified five injury dates, including November 8, 2007, but the order also
stated that the injury dates were “at issue,” and identified the “date of injury”
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and “statute of limitations” as “contested issues.” In her brief before the ALJ,
Duckworth represented that she had “suffered work-related cumulative trauma
injury to her back and neck in the course of her employment which first
manifest[ed] November 8, 2007.” She explained her cumulative trauma injury
had manifested on that date because “she presented to Ford Medical November
8, 2007 with neck pain after leaning over the frame to put in the wire loom.”
In his June 11, 2018 Opinion and Order, the ALJ held that for
cumulative trauma injury, the date a claimant is advised by a physician that
she has a work-related condition is the date of injury for statute of limitations
purposes. Consol of Ky., Inc. v. Goodgame, 479 S.W.3d 78 (Ky. 2015). The ALJ
reasoned that a claimant is not required to self-diagnose a harmful change as
being a work-related injury for the purpose of giving notice, citing American
Printing House for the Blind v. Brown, 142 S.W.3d 145, 148 (Ky. 2004).
Although Ford argued that Duckworth knew her condition was work-related as
early as November 8, 2007, her back condition was not listed as an injury until
October 10, 2011. In an office record dated March 22, 2010, Dr. Chou noted
that the cause of Duckworth’s condition was due to repetitive injury.
Therefore, the ALJ concluded that the dates of discovery, for notice and
manifestation purposes, of her cumulative trauma neck and back injury were
March 22, 2010 and October 10, 2011, respectively.
Kentucky Revised Statute (KRS) 342.185(1) states:
If payments of income benefits have been made, the filing of
an application for adjustment of claim with the department
within the period shall not be required, but shall become
requisite within two (2) years following the suspension of
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payments or within two (2) years of the date of the accident,
whichever is later.
The parties stipulated that the last TTD payment was made to Duckworth on
August 5, 2011.1 Because Duckworth filed an application for benefits on June
10, 2013, she filed her claim within two years of the date of the last TTD
payment. Accordingly, the ALJ found the claim was not time-barred.
Ford filed a petition for reconsideration, emphasizing the fact that
Duckworth was being treated at the Ford medical facility for work-related neck
and back pain since 2007. In the order on reconsideration, the ALJ explained
that no physician informed Duckworth her neck and back pain were work-
related in 2007. He acknowledged that Duckworth told the Ford medical
personnel her own belief that the pain was work-related but concluded that
self-diagnosis is not the standard used to determine a manifestation date for
cumulative trauma injury. The petition was denied.
1 The Benefit Review Conference order includes a table used to list stipulated
dates on which TTD benefits were paid. The table has five sections, and those sections
list August 6, 2010, June 24, 2011, July 22, 2011, July 29, 2011 and August 5, 2011
as stipulated payment dates. However, on the next page of the order under a section
titled “Other Matters,” it states, “TTD was also paid on 9/30/11, 10/7/11, 10/14/11
through 10/16/11, 4/12/13, 5/12/13.” On April 12, 2012, Duckworth was struck on
the head by a piece of handheld equipment and on October 2, 2012, she fell in the
parking lot leaving work. The injuries related to these particular TTD payments are
unclear. The ALJ’s opinion states that the parties stipulated that the last TTD
payment was August 5, 2011, but the Ford medical facility records indicate that the
October 14, 2011 payment was related to a cervical epidural injection, which relates to
the neck injury. The discrepancy in the ALJ stating the last TTD payment was
stipulated as occurring on August 5, 2011, when in fact it appears a neck-related TTD
payment was made on October 14, 2011, has no bearing on the statute of limitations
issue because it would merely extend the two-year period in which Duckworth was
required to file her claim under KRS 342.185(1).
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On appeal to the Workers’ Compensation Board (Board), Ford argued the
ALJ exceeded the scope of his authority when he sua sponte determined
Duckworth’s cumulative trauma injury manifested on March 22, 2010. Ford
argued that Duckworth stipulated the manifestation date of her injury as
November 8, 2007, and the ALJ was bound to accept that stipulation.
Accordingly, Ford argued the claim was time-barred. Alternatively, Ford
argued it was denied due process of law when the ALJ selected a manifestation
date which was not offered by the parties in the Benefit Review Conference
order.
The Board affirmed the ALJ’s opinion and order on reconsideration. The
Board disagreed with Ford’s argument that Duckworth stipulated a cumulative
trauma manifestation date of November 8, 2007. In cumulative trauma injury
claims, “manifestation” can have dual meanings. The date an injury manifests
might refer to the date when symptoms or disability arise and may constitute
the starting date for liability. Am. Printing House, 142 S.W.3d at 147-48. The
Board concluded that this meaning differs from the manifestation date for
notice and statute of limitations purposes. The ALJ correctly concluded that
the date for triggering the running of the limitations period and for giving notice
in a cumulative trauma injury claim is when the worker has knowledge that a
harmful change has occurred and is informed by a physician that it is work-
related. Hill v. Sextet Mining, 65 S.W.3d 503, 507 (Ky. 2001). The parties
identified the dates of injury as “at issue” and nowhere in the Benefit Review
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Conference order do the parties stipulate a date of manifestation for notice and
statute of limitations purposes.
The Board also disagreed that the ALJ was bound to select one of the
identified injury dates in determining manifestation dates. Because a
cumulative trauma injury was alleged in the claim, implicit in the adjudication
of such a claim is the necessary determination of a manifestation date. The
ALJ is vested with the discretion to weigh the proof and adjudicate the claim.
The Board also rejected Ford’s assertion that it had been denied due process of
law. Procedural due process requires a party to enjoy the opportunity to be
heard at a reasonable time and in a reasonable manner. Mathews v. Eldridge,
424 U.S. 319, 333 (1976). At the beginning of the litigation Ford filed a special
answer alleging Duckworth’s claim was time-barred, precluding Ford from now
arguing it was deprived of the opportunity to be heard on this issue when it
specifically raised the argument in its answer.
In its appeal to the Court of Appeals, Ford argued that throughout the
entirety of the case it approached its defense based on Duckworth’s alleged
November 8, 2007 cumulative trauma injury manifestation. Further, Ford and
Duckworth “were of accord that if [Duckworth] suffered cumulative trauma
injury to her neck and back, the manifestation date for the injuries was that
alleged by [Duckworth], November 8, 2007.” Ford also argued that the ALJ’s
decision to look beyond Duckworth’s understanding of the word
“manifestation” in order to determine when Duckworth’s claim accrued was a
violation of its procedural due process rights.
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The Court of Appeals affirmed the Board, agreeing and incorporating the
reasoning of both the ALJ and the Board. Ford offered no supporting law that
an ALJ lacks the authority to determine the manifestation date of cumulative
trauma injury according to the law and evidence presented. Ford
acknowledged that no physician expressed an opinion to Duckworth on
November 8, 2007 that she was suffering from a work-related, cumulative
trauma injury. In the appellate court’s view, Ford’s assertion that it and
Duckworth were “of accord” regarding the manifestation date of her injury is
disingenuous given that Ford has acknowledged that “manifestation” relates to
the date a claimant is informed by a physician that an injury is work-related.
Ford now appeals, arguing that the Court of Appeals erred in affirming
the Board. Ford maintains that the ALJ’s award was arbitrary and capricious;
that the ALJ exceeded his authority under KRS 342.270(1) and 803 Kentucky
Administrative Regulation (KAR) 25:010 § 13(12) in adjudicating uncontested
issues; and that its due process rights were violated.
ANALYSIS
I. The ALJ Had the Authority to Determine the Manifestation Date
of Duckworth’s Cumulative Trauma Injury.
Ford argues that the ALJ exceeded his authority in determining the
manifestation dates for Duckworth’s injury. The scope of an ALJ’s authority is
a question of law, which we review de novo. Ford Motor Co. v. Jobe, 544 S.W.3d
628 (Ky. 2018).
KRS 342.185(1) requires a claimant to make a claim within two years of
the date of the accident or within two years of the suspension of payments of
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income benefits, whichever is later. Cumulative trauma injuries “are the result
of trauma and . . . they develop over time.” Consol, 479 S.W.3d at 82. The
triggering of the statute of limitations differs for single-event injury claims and
cumulative trauma injury claims. Id. “[F]or cumulative trauma injuries, the
obligation to provide notice arises and the statute of limitations does not begin
to run until a claimant is advised by a physician that he has a work-related
condition.” Id.
A claimant is not required to self-diagnose the harmful change as being a
work-related injury for the purpose of giving notice. Am. Printing House, 142
S.W.3d at 148. Therefore, it is immaterial that Duckworth listed November 8,
2007 as the date her injury manifested on her application for benefits. The
medical records reveal that Dr. Chou informed Duckworth that her cumulative
trauma neck injury was work-related on March 22, 2010. As for her low back
injuries, the ALJ stated that
[o]n October 10, 2011, Ford listed her condition as an “injury” for
the first time. The Ford Motor records establish that she was told
that her low back was work-related on October 10, 2011. . . . The
ALJ relies on the Ford Motor records to find that her date of
discovery of her cumulative trauma low back injuries, for purposes
of notice and manifestation, occurred on October 10, 2011.
We note that in this October 10 record no physician’s signature appears–
only a nurse’s signature. While it is unclear whether this is the record the ALJ
relied on in determining that Duckworth was informed of the work-relatedness
of her low back injury on October 10, 2011, it ultimately makes no difference to
the disposition of the statute of limitations issue. As the ALJ found, Ford paid
TTD benefits to Duckworth for her low back injury, beginning in August 2010
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and concluding on August 5, 2011. Therefore, if and when she was informed
by a physician, not a nurse, that her back condition was work-related is not
necessarily dispositive of the running of the two-year statute of limitations. As
noted, KRS 342.185(1) requires a claimant to file her claim by the later of
either the manifestation date, i.e. the date a claimant is informed by a
physician that her cumulative trauma injury is work-related, or the date of the
last payment of income benefits. Here, Duckworth satisfied this requirement
by filing her claim within two years of August 5, 2011, the last TTD payment
date.2 Since she filed her claim on June 10, 2013, it was not time-barred by
KRS 342.185(1), and the ALJ did not exceed his authority under KRS
342.270(1).
We further reject Ford’s argument that Duckworth stipulated to a
manifestation date of November 8, 2007. That date was her first visit to the
Ford medical facility. The Benefit Review Conference order identifies the “dates
of injury” as “at issue” twice. 803 KAR 25:010 § 13(11) states:
If at the conclusion of the BRC the parties have not reached
agreement on all the issues, the administrative law judge shall:
(a) Prepare a final BRC memorandum and order including
stipulations and identification of all issues, which shall be
signed by all parties or if represented, their counsel, and the
administrative law judge; and
2 See n.1. The Ford medical facility records on the dates that TTD benefits were
paid state that on most of these dates Duckworth was paid TTD benefits because she
missed work to receive epidural injections. Duckworth missed work on August 6,
2010, June 24, 2011, July 22, 2011, August 5, 2011, and October 14, 2011 for
neck/cervical epidural injections. She missed work on September 30, 2011 for a low
back/lumbar epidural injection. The July 29, 2011 and October 7, 2011 records do
not specify what type of epidural injections she received.
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(b) Schedule a final hearing.
An ALJ is bound by the parties’ voluntary stipulations. Hale v. CDR
Operations, Inc., 474 S.W.3d 129, 138 (Ky. 2015). If a date of manifestation is
stipulated, it is not an issue before the ALJ for adjudication. Id. In this case,
the ALJ identified the stipulations the parties agreed to and specifically
identified the contested issues which required further adjudication, including
the dates of injury.
803 KAR 25:010 § 13(12) states that “[o]nly contested issues shall be the
subject of further proceedings. Ford argues that the ALJ exceeded his
authority under 803 KAR 25:010 § 13(12) by adjudicating uncontested issues.
While Ford insists that the date of injury was uncontested, the Benefit Review
Conference order plainly indicates otherwise. The parties did not agree on the
manifestation of Duckworth’s injury, making that issue subject to further
proceedings. Because the parties did not agree on the manifestation date, the
ALJ, as fact-finder, had to make that determination and, contrary to Ford’s
argument, the ALJ’s findings on the issue of manifestation were not made sua
sponte.
In Consol, 479 S.W.3d at 84, this Court specifically remanded a workers’
compensation claim for the ALJ to determine when the claimant was advised
that he suffered from a work-related cumulative trauma injury. On remand,
the ALJ was also instructed to determine whether the claimant filed his claim
within two years of that date. Id. Therefore, the manifestation date is a
necessary determination in cumulative trauma injury claims. This
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determination establishes whether a claimant provided timely notice or timely
filed her claim. As with other issues, “[t]he ALJ as fact finder has the sole
authority to judge the weight, credibility, substance, and inferences to be
drawn from the evidence.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky.
2017). The ALJ relied on the medical evidence in the record in identifying the
manifestation dates of Duckworth’s injury and did not exceed the scope of his
authority. The ALJ then properly applied KRS 342.185(1) in determining which
occurred later–the manifestation date or date of last TTD payment–before then
correctly concluding that Duckworth filed her claim within two years of the
later date.
II. Ford Was Not Deprived of Due Process Because It Had Adequate
Notice and Ample Opportunity to Be Heard on the Statute of
Limitations Issue.
Ford argues that it did not have reasonable notice that the ALJ would
consider March 22, 2010 and October 10, 2011 as potential manifestation
dates for Duckworth’s cumulative trauma injury. As such, Ford insists it was
denied due process of law by the ALJ’s determination of the manifestation date.
The fundamental requirement of due process is the opportunity to be heard “at
a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333
(internal citations omitted). Because Ford had ample time and opportunity to
be heard on the statute of limitations issue, it was not denied due process.
Ford asserts that there was no mention of Duckworth suffering
cumulative trauma injury that manifested on these dates. While these dates
were not listed as dates at issue in the Benefit Review Conference order, the
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following were listed as “at issue”: (1) whether Duckworth sustained a work-
related injury; (2) dates of injuries; (3) whether Ford received due and timely
notice of Duckworth’s injuries; and (4) whether Duckworth retained the
physical capacity to return to the type of work performed at the time of the
injury. Additionally, in the checklist of issues subject to further proceedings,
the order lists work-related injury, date of injury, due and timely notice, TTD
benefits paid, and statute of limitations as being subject to further proceedings.
On these facts, it is disingenuous for Ford to argue that it was deprived
of reasonable notice of the matters at issue and an opportunity to be heard.
The Benefit Review Conference order was entered on January 8, 2018, over
three weeks before Ford filed its brief before the ALJ on February 1, 2018.
Further, in response to Duckworth’s workers’ compensation claim, Ford filed a
special answer on July 12, 2013 to specifically assert a notice and statute of
limitations defense. An ALJ is not confined to selecting the claimant’s
identified injury date in determining the manifestation of a cumulative trauma
injury (or, for that matter, the date identified by the employer). We reiterate
that the ALJ, as fact-finder, is vested with the authority and discretion to
consider all the proof and adjudicate the claim on the basis of the record before
him or her. Here, the ALJ did exactly that.
CONCLUSION
For the reasons stated, we affirm the Court of Appeals’ decision affirming
the Board and upholding the ALJ’s opinion and order.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Joshua Wininster Davis
Priscilla Coleman Page
O’BRYAN, BROWN & TONER, PLLC
COUNSEL FOR APPELLEE, DEBORAH
DUCKWORTH:
Melissa Anderson Hofe
Stephanie Nicole Wolfinbarger
COTTON WOLFINBARGER & ASSOCIATES, PLLC
ADMINISTRATIVE LAW JUDGE:
John H. McCracken
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey, Chairman
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