Marquis Carter v. Webasto Roof Systems

                  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                      NOT TO BE PUBLISHED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-