RENDERED MARCH 25, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0133-WC
DIANE ANDERSON APPELLANT
ON APPEAL FROM COURT OF APPEALS
NO. 2019-CA-1414
V. WORKERS’ COMPENSATION BOARD
NO. 18-WC-01444
MOUNTAIN COMPREHENSIVE HEALTH APPELLEES
CORPORATION; HON. JONATHAN R.
WEATHERBY, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’ COMPENSATION
BOARD
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REMANDING
Administrative Law Judge (ALJ) Jonathan R. Weatherby dismissed Diane
Anderson’s (Anderson) workers’ compensation claim finding Anderson failed to
provide reasonable notice of her injury to her employer, Mountain
Comprehensive Health Corporation (MCHC). Applying the notice provisions of
KRS1 342.185(1), the ALJ found Anderson’s delay of almost two years from the
original manifestation date, based on Dr. Owen’s treatment record dated
January 23, 2017, was not timely. Both the Workers’ Compensation Board
1 Kentucky Revised Statute.
(Board) and the Court of Appeals affirmed the ALJ. In reviewing the evidence,
statutes, and pertinent case law, we hold that the ALJ erred in applying KRS
342.185(1) to Anderson’s claim. As of July 14, 2018, the notice provisions of
KRS 342.185(1) do not apply to cumulative trauma injuries. The General
Assembly added KRS 342.185(3), specifically addressing a claimant’s notice
requirements for cumulative trauma injuries. We hold the ALJ applied the
incorrect provision of the statute and that under KRS 342.185(3), Diane
Anderson’s claim was timely. For this reason, we reverse and remand.
I. BACKGROUND.
Anderson worked for MCHC as a nurse for twenty-one years. Anderson
claims she suffered work-related injuries to her neck, back, and hands as a
result of her employment. Her injuries became so crippling that she resigned
from MCHC on November 17, 2017. Subsequently, Anderson filed a claim for
Social Security disability benefits. On October 3, 2018, Anderson filed a
workers’ compensation claim, Form 101, alleging she sustained cumulative
trauma injuries to her neck, back, and hands on November 17, 2017, while
working for MCHC. Her Form 101 asserts she gave MCHC notice of her
cumulative trauma, in writing, on September 26, 2018. On October 30, 2018,
MCHC filed a special answer, asserting Anderson’s claims were time-barred.
During her deposition on November 19, 2018, Anderson testified that the
first doctor to connect her pain with her work was Dr. James Owen and that
she saw Dr. Owen in “January of this year.” However, Anderson never listed
Dr. Owen on her Form 105, Chronological Medical History, accompanying her
2
claim.2 This admission prompted MCHC to request the production of Dr.
Owen’s medical records. The ALJ issued an order of compliance on December
14, 2018, but Anderson’s response to the order contained no information from
Dr. Owen. MCHC issued a request directly to Dr. Owen. Dr. Owen faxed a copy
of his handwritten treatment notes to MCHC, indicating he examined Anderson
on January 23, 2017. MCHC filed a copy of this response with the ALJ on
February 7, 2019.
A benefits review conference was held on February 12, 2019, followed by
a formal hearing on February 26, 2019. MCHC contested that Anderson
provided reasonable notice of her work-related injury under KRS 342.185.
Anderson’s brief, filed March 27, 2019, contradicted her deposition testimony
regarding the initial physician to correlate her pain with her work. In her brief,
and subsequent hearing testimony, she stated Dr. Chad Morgan first informed
her she had permanent, work-related injuries on September 25, 2018. MCHC
argued that since: (1) Anderson previously testified it was Dr. Owen who
initially diagnosed her; (2) Dr. Owen’s report was dated January 23, 2017; and
(3) she did not comply with discovery, her 618-day delay in providing notice
was untimely.
In determining the manifestation date, the ALJ noted that Dr. Owen’s
handwritten treatment note conflicted with Anderson’s testimony as to when
she saw him. Dr. Owen’s record indicated a treatment date of January 23,
2 A Chronological Medical History documents: (1) names and addresses of every
physician/hospital the plaintiff saw or visited; (2) dates treatment was received; (3) the
nature of the injury; and (4) whether the plaintiff is still under a doctor’s care.
3
2017, while Anderson’s testimony inferred a date in January 2018. The ALJ
chose to believe Anderson was mistaken, and that the treatment occurred in
January 2017. Based on the 618 days between treatment and notice, the ALJ
found that Anderson had not provided notice “as soon as practicable per KRS
342.185,” and dismissed her claim. Due to the dismissal, the ALJ never made
findings of fact or conclusions of law regarding whether Anderson’s injuries
were work-related cumulative trauma or to what benefits she may have been
entitled. It was in reviewing the ALJ’s opinion that Anderson first identified the
typographical error in Dr. Owen’s handwritten treatment record.
Anderson did not file a petition for reconsideration requesting the ALJ
correct the record; instead, she appealed to the Board. In her appeal, Anderson
attached, for the first time, two medical reports to her brief. The first was Dr.
Owen’s report generated for the Social Security Administration, dated January
23, 2018. The second was a statement from Dr. Owen, dated June 13, 2019,
indicating the date on his handwritten treatment note was incorrect and that
he saw Anderson on January 23, 2018, not 2017. Anderson argued she only
discovered the mistake after the ALJ’s opinion, and Dr. Owen was on vacation
at the time, leaving Anderson unable to timely file a petition for
reconsideration. The Board rejected this notion stating that for the Board to
review the “mistake,” Anderson had to have first filed a petition for
reconsideration.
4
The Board also rejected Anderson’s argument that the ALJ’s opinion
should be reversed due to newly discovered evidence.3 The Board found that
while Dr. Owen’s handwritten treatment note was misdated, the correctly dated
report did not constitute newly discovered evidence. The correct report was in
existence at the time of the hearing and could have been discovered with due
diligence on Anderson’s part. The Board also noted that if Anderson had
complied with the request for production of documents, she would have had
five months before the ALJ’s opinion was rendered, easily allowing her to
identify the typographical error or counter with the report generated for her
disability claim. Thus, the Board affirmed the ALJ’s opinion.
A unanimous Court of Appeals agreed with the Board’s logic. The Court
of Appeals said that the incorrect date could have been discovered and
corrected if Anderson had exercised due diligence in obtaining the correctly
dated report. Additionally, the court said Anderson should have been aware
that Dr. Owen’s report was critical, as she testified at her deposition that he
was the doctor that originally diagnosed her with a work-related injury.
Furthermore, the court noted Anderson failed to disclose her examination by
Dr. Owen on her Form 105 and did not timely comply with discovery requests.
Based on these facts, the Court of Appeals was not convinced that Anderson
3 Anderson’s argument in her brief to the Board references both KRS 342.125
and Rule of Civil Procedure 60.02, although a motion under either of those provisions
was not made to the ALJ.
5
acted with due diligence and that the report qualified as newly discovered
evidence. This appeal followed as a matter of right.4
Due to the confusing nature of the appellate record, we take a moment to
properly outline what we are reviewing. We take as the issue for review whether
the ALJ erred in dismissing Anderson’s claim as untimely. We decline to review
whether the requirements for a motion to reopen for a mistake or newly
discovered evidence under KRS 432.125 were met. Despite all the briefing
relevant to this issue, we find no motion to reopen was ever filed by Anderson
to the ALJ. In short, we lack an appropriate record as to whether the claim
should have been reopened for a mistake or for newly discovered evidence.
II. STANDARD OF REVIEW.
On review, the role of the Court of Appeals is to correct the Board only
where the “Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so flagrant to cause
gross injustice.”5 Further review in this Court is to address new or novel
questions of statutory construction, reconsider precedent, or review questions
of constitutional magnitude.6 The ALJ, as fact finder, has the sole authority to
judge the weight, credibility, substance, and inferences to be drawn from the
evidence.7 In reaching his decision, the ALJ is free to choose to believe or
disbelieve parts of the evidence from the total proof, no matter which party
4 KY. CONST. § 115.
5 Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
6 Id.
7 Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
6
offered it.8 However, “[a]s a reviewing court, we are bound neither by an ALJ’s
decisions on questions of law or an ALJ’s interpretation and application of the
law to the facts. In either case, our standard of review is de novo.”9
III. ANALYSIS.
We start by acknowledging that the Board and appellate courts are not
fact finders and that evidence enters the record through the ALJ.10 The
dispositive issue, in this case, is not a question of fact, but a matter of law, the
ALJ’s misapplication of KRS 342.185. The ALJ dismissed Anderson’s claim as
untimely, finding that “notice was not given as soon as practicable per KRS
342.185.” The ALJ relied on Special Fund v. Francis for the proposition that
Anderson had not shown that her delay in providing MCHC notice was
reasonable under the conditions.11 While the ALJ did not cite the specific
subsection of the statute, we note that the notice provision of KRS 342.185(1)
is the only statutory provision with the limitation that the plaintiff’s “notice of
the accident shall have been given to the employer as soon as practicable after
8 Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977).
9 Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018) (citing Bowerman v.
Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)).
10 KRS 342.286(2) (“No new or additional evidence may be introduced before the
board except as to the fraud or misconduct of some person engaged in the
administration of this chapter and affecting the order, ruling, or award[.]”); see also
Carnes v. Parton Bros Contracting, Inc., 171 S.W.3d 60, 66-67 (Ky. App. 2005) (“On
appeal, ‘[n]o new evidence may be introduced before the Board, and the Board may not
substitute its judgment for that of the ALJ concerning the weight of evidence on
questions of fact.’”) (citing Smith v. Dixie Fuel Co., 900 S.W.2d 609, 612 (Ky. 1995));
Lynch v. Lynch, No. 2003-CA-001132-MR, 2004 WL 1857176, at *1 (Ky. App. Aug. 20,
2004) (“We do not review new evidence, and it plainly violates the Civil Rules to
attempt to introduce new evidence in a brief.”).
11 708 S.W.2d 641, 643 (Ky. 1986).
7
the happening thereof[.]” Until July 2018, the notice requirements in KRS
342.185(1) applied to all workers’ compensation claims.
In 2018, the Kentucky General Assembly amended KRS 342.185 with
such amendment becoming effective on July 14, 2018.12 It made two
significant changes to KRS 342.185. First, KRS 342.185(1) was modified to
include the language, “[e]xcept as provided in subsections (2) and (3) of this
section[.]” Second, a new subsection three was added dealing specifically with
cumulative trauma claims.13 In its entirety, 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 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.
Clearly, on its face, KRS 342.185(3) provides 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. Neither limitation includes a further provision that notice to the
employer be provided “as soon as practicable.”
12 2018 Ky. Acts ch. 40.
13 Act of March 30, 2018, ch. 40 § 5(3), 2018 Ky. Acts 159.
8
It is well-settled, “[n]o statute shall be construed to be retroactive, unless
expressly so declared.”14 Retroactive application of statutes will be approved
only where we can be certain the General Assembly intended the statute to
operate retroactively.15 It is sufficient if the legislative enactment makes it
apparent that retroactivity was the intended result.16 Section 20(2) of Chapter
40, 2018 Ky. Acts provides that,
Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are
remedial and shall apply to all claims irrespective of the date of
injury or last exposure, provided that, as applied to any fully and
finally adjudicated claim, the amount of indemnity ordered or
awarded shall not be reduced and the duration of medical benefits
shall not be limited in any way.17
The General Assembly specifically addressed retroactivity, and thus, the
changes to KRS 342.185(3) apply to “all claims irrespective of the date of
injury or last exposure.” Accordingly, KRS 342.185(3) must be used to
determine the notice requirements of Anderson’s cumulative trauma
claim.
There is no debate that Anderson and MCHC were litigating a cumulative
trauma injury claim. Anderson’s Form 101 explicitly identifies the claim as
cumulative trauma, both parties’ briefs and filings to the ALJ confirm the
14 KRS 446.080(3).
15 See Commonwealth Dep't of Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky.
2000).
16 Baker v. Fletcher, 204 S.W.3d 589, 597 (Ky. 2006).
2018 Ky. Acts 183 (emphasis added). As previously stated, Section 5 outlined
17
the changes to KRS 342.185. In Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019), we
recently held that the 2018 amendments to KRS 342.730(4) should be retroactively
applied relying primarily on 2018 Ky. Acts ch. 40 § 20(3).
9
nature of the claim to be cumulative trauma, and the ALJ’s evidence summary
identifies the claim as cumulative trauma. Anderson’s manifestation date and
required notice date were an issue. At her hearing, Anderson claimed a
manifestation date of September 25, 2018, corresponding to when Dr. Morgan
told her of the likely connection between her pain and her employment. But in
her prior deposition, Anderson stated that the first physician to make the
connection was Dr. Owen as part of her Social Security disability examination
in “January of this year.”18 MCHC submitted Dr. Owen’s handwritten medical
report stating the date of the examination was January 23, 2017. The ALJ, in
weighing the evidence, reasonably accepted the date on Dr. Owen’s
handwritten treatment record as the manifestation date but erroneously
applied the notice provision in KRS 342.185(1); specifically, the ALJ stated
notice was not given as soon as practicable and dismissed Anderson’s claim as
untimely.
On appeal, Anderson’s counsel attempted to relitigate the evidence of the
actual treatment date by introducing new evidence to the Board rather than
taking issue with the ALJ’s erroneous application of the statute. The Board,
and later the Court of Appeals, engaged with Anderson’s counsel on this issue.
Neither the Board nor the Court of Appeals appears to have reexamined the
ALJ’s failure to apply the appropriate subsection of the statute.
18 Anderson’s deposition occurred on November 19, 2018, and she first filed for
Social Security disability after leaving her employment with MCHC on November 17,
2017. The inference is that “January of this year” was January 2018.
10
We hold that by applying the cumulative trauma notice requirements of
KRS 342.185(3), Anderson’s claim was timely. Anderson met the two-year
statutory limitations period by sending a notice to MCHC on September 26,
2018 or filing her Form 101 on October 3, 2018. This is true, whether the
initial identification of the work-related nature of her condition was January
23, 2017, January 23, 2018, or September 25, 2018. Additionally, her notice
was less than a year after leaving MCHC, easily within the absolute five-year
repose period since her last exposure.
Anderson’s appeals to the Board and Court of Appeals were sidetracked
in the debate over whether correction of the date in Dr. Owen’s handwritten
report required Anderson to file a petition for reconsideration pursuant to KRS
342.281 or alternatively, whether the reopening provisions of KRS 342.125
were met. In addressing Anderson’s need to file a petition for reconsideration,
we look to our recent decision in Wilkerson v. Kimball International, Inc.19 A
petition for reconsideration is required where the ALJ fails to make an essential
finding of fact, and in such reconsideration, the ALJ is limited to review of
errors patently appearing upon the face of the award, order, or decision.20 In
Anderson’s case, the ALJ did not fail to make essential findings of fact. The ALJ
addressed on the record, both Anderson’s memory of the date and the
documented date on Dr. Owen’s report. Furthermore, given the evidence in the
record, the manifestation date appearing on the order was not a patently
19585 S.W.3d 231 (Ky. 2019). We note Wilkerson was rendered in September
2019, a month after the Board’s opinion in this matter.
20 Id. at 236.
11
obvious error. The error could only be clarified by the introduction of new
evidence in the form of Dr. Owen’s report submitted to the Social Security
Administration and his clarifying note. This is not the type of error that KRS
342.281 is meant to address.
KRS 342.125 permits the ALJ to reopen a claim on the judge’s own
motion or on motion by a party. The ALJ may reopen the claim for fraud, newly
discovered evidence, mistake, or a change of disability.21 If a workers’
compensation claim is dismissed, it must be reopened as directed by KRS
342.125.22 A petition to reopen an award may be made even if the case is
pending on appeal to the Board or Court of Appeals on a question not involving
reopening.23 Anderson’s counsel couched his appeal to the Board as newly
discovered evidence, but the record does not indicate Anderson ever filed a
motion to reopen.24 Despite this, both the Board and Court of Appeals analyzed
Anderson’s argument as if the ALJ had denied a motion to reopen; again, a
motion that was never actually made. The question of mistake, or newly
discovered evidence, as to Dr. Owen’s notes, was a question of fact for the ALJ
21 KRS 342.125(1); see also Whittaker v. Reeder, 30 S.W.3d 138 (Ky. 2000)
(explaining final workers' compensation award may be reopened sua sponte by the
fact-finder for the correction of a mistake in applying the law as it existed at the time
of the award).
22 KRS 342.125(2).
23 Columbus Min. Co. v. Sanders, 159 S.W.2d 14 (Ky. 1942) (holding the right to
petition to reopen a case may be exercised although the case is pending in the Court of
Appeals on a question not involved in the petition for the reopening).
24 See Stearns Coal & Lumber Co. v. Roberts, 168 S.W.2d 573 (Ky. 1943)
(holding that a circuit court is without jurisdiction to hear evidence not heard by the
Board, and the proper procedure was to apply to the Board for reopening). At the time
of Stearns, the Board was the finder of fact in workers’ compensation cases, and the
circuit courts functioned as today’s Board.
12
and without a motion to reopen, was never properly before the Board or Court
of Appeals.
In the end, neither the question of Anderson’s lack of a petition for
reconsideration nor motion to reopen is relevant to the error in this case. We
hold that when reviewing whether notice was adequate in cases of cumulative
trauma injuries, KRS 342.125(3) establishes a two-year limitation period from
manifestation date and an absolute repose period of five years from last
injurious exposure. As a matter of law, the ALJ’s application of KRS 342.125(1)
in dismissing Anderson’s claim was an error, and therefore we reverse and
remand.
IV. CONCLUSION.
For the stated reason, the Court of Appeals is reversed, and the case is
remanded to the ALJ for further proceedings consistent with this opinion.
All sitting. All concur.
13
COUNSEL FOR APPELLANT:
McKinnley Morgan
Morgan Collins Yeast & Salyer
COUNSEL FOR APPELLEE, MOUNTAIN COMPREHENSIVE HEALTH
CORPORATION:
W. Barry Lewis
Lewis and Lewis Law Offices
ADMINISTRATIVE LAW JUDGE:
Jonathan R. Weatherby
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey, Chairman
14