Marquis Carter v. Webasto Roof Systems

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 RENDERED: APRIL 18, 2024
NOT TO BE PUBLISHED

Supreme Court of Kentucky
2023-SC-0313-WC

MARQUIS CARTER APPELLANT

ON APPEAL FROM COURT OF APPEALS
V. NO. 2022-CA-1380
WORKERS’ COMPENSATION NO. WC-21-00849

WEBASTO ROOF SYSTEMS; THOMAS APPELLEES
POLITES, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Marquis Carter appeals from an opinion of the Court of Appeals affirming

a decision of the Workers’ Compensation Board, which in turn, affirmed in part

and vacated in part an opinion and order issued by the Administrative Law

Judge (“ALJ”). Carter asserts two contentions of error. First, he argues the

Court of Appeals and the Board erred by affirming the ALJ’s determination of

his permanent impairment rating. Second, he argues the Court of Appeals

erred by affirming the Board’s decision to vacate and remand for additional

findings regarding the date his cumulative trauma injury manifested for statute

of limitations purposes. We affirm.
 FACTS AND PROCEDURAL HISTORY

In his Form 101, filed June 8, 2021, Carter alleged he sustained a work-

related cumulative trauma back injury as an assembly line worker at Webasto

Roof Systems, due to repetitive lifting, twisting, and pulling. He claimed his

painful back symptoms manifested on August 20, 2019, after which he sought

medical attention from his primary physician, Dr. Shannon Roberts, on August

23, 2019, and was subsequently informed by his pain management physician,

Dr. Brandon Gish, that the condition was possibly caused, at least in part, by

work-related cumulative trauma. In response, Webasto filed a Special Answer

raising several affirmative defenses, including the running of the applicable

two-year statute of limitations based on Carter allegedly having been informed

that earlier low back complaints treated by Dr. Roberts in 2016 were likewise

possibly work-related.

Carter was deposed on September 14, 2021. He testified he had

sustained no back injuries prior to being hired at Webasto in 2013.

Initially, Carter worked for about one year in the factory’s receiving

department where he operated a stand-up forklift and experienced back

discomfort “somewhat,” requiring occasional over-the-counter anti-

inflammatory medication. He thereafter worked about two years in the service

department where frequent lifting of 15-20 pound glass panels caused similar

sporadic back discomfort. Ultimately, he was transferred to the final assembly

department where his work activities intensified, requiring him to stand for

prolonged periods while engaging in repetitive screwing, turning, bending, and

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lifting of the glass panels. He testified it was there that his “back problems

kind of accumulated over the years” with no specific injury, but “really started”

to worsen in 2019. Though no physician ever specifically informed him his low

back complaints had been caused by his work activities, Carter admitted he

had been told “it’s possible.”

Carter testified his back pain intensified significantly by August 20,

2019, necessitating evaluation by Dr. Roberts on August 23, 2019. Over time,

Dr. Roberts provided muscle relaxers and cortisone shots, prescribed physical

therapy, performed diagnostic tests including an MRI, and referred Carter to

Dr. Brandon Gish for pain management. He reported both Dr. Roberts and Dr.

Gish were continuing to provide treatment.

Carter worked under medically imposed physical restrictions until

January 19, 2021, but has not worked since that time. Based on advice

provided by the human resources department at Webasto, he testified he had

applied for and received short-term and long-term disability insurance benefits.

He was terminated by Webasto in January of 2022, and has since applied for

Social Security disability benefits.

Carter next testified at the March 16, 2022, final hearing. He admitted

to having seen Dr. Roberts in 2016 for back complaints but asserted symptoms

had fully resolved, requiring no further treatment relative to back problems

from 2017 until his return to her office on August 23, 2019. Though he had

experienced some occasional back discomfort during that period, these

sporadic episodes were never as severe as the unrelenting pain he had

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experienced since August of 2019. He testified Dr. Gish had informed him his

current back problems could have possibly arisen due to the nature of his work

activities at Webasto, and he acknowledged Dr. Roberts had apprised him

similarly regarding his back complaints in 2016.

At the time of the hearing, he remained under the medical care of both

Dr. Roberts and Dr. Gish for severe low back and bilateral lower extremity

pain, receiving ongoing prescriptions for muscle relaxers and pain medications

and referrals for additional physical therapy. He admitted he was incapable of

returning to his former work activities and acknowledged his termination had

been due to the exhaustion of his leave time.

The medical records of Dr. Roberts revealed Carter was examined on July

11, 2016, at Baptist Health for low back pain. More particularly, Dr. Roberts’

assistant, Sarah Grimm, PA, assessed “Pain secondary to repetitive pressure on

the area related to job.” It was noted Carter had not been appropriately rotated

between various workstations and a letter was sent to Webasto imposing

physical restrictions relative to the specific job activities causing his

discomfort. Following an inconsequential recheck on July 20, 2016, Dr.

Roberts’ medical office continued to follow Carter relative to various medical

needs unrelated to any further back complaints. Interestingly, he reported no

back pain at his annual physical examination on July 24, 2019.

A month later, on August 23, 2019, however, Carter returned with

complaints of severe back pain. It was noted Carter “does a lot of heavy lifting

at work.” Due to the severity of his symptoms, pain injections were

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administered on that date and on follow up examinations on September 1,

2019, and January 13, 2020. Subsequently, a June 6, 2020, pelvic and

abdominal CT scan demonstrated facet degenerative joint disease at L4-5, and

November 12, 2020, lumbar x-rays showed no fracture but multilevel

spondylosis changes, most advanced at L4-5. A February 19, 2021, lumbar

MRI confirmed multilevel spondylosis, most pronounced at L4-5, with moderate

spinal canal and neuroforaminal narrowing.

The medical records of KORT Physical Therapy revealed Carter

underwent initial evaluation for physical therapy on March 18, 2021, at which

time a treatment plan recommended a four-week course of physical therapy,

with two sessions performed each week.

The medical records of Dr. Brandon Gish at Commonwealth Pain and

Spine revealed Carter underwent an initial evaluation on February 4, 2021, for

low back pain, with the medical history indicating an onset of symptoms two

years previously due to a work injury, and a recommendation for a lumbar

MRI. Two months later, on April 7, 2021, Carter’s ongoing symptoms were

listed as fatigue, lower extremity swelling, back pain, neck pain, joint pain,

muscle pain, limited motion, numbness and shooting pain, and insomnia, for

which a course of nonsteroidal anti-inflammatory drugs (NSAID) and pain

medications were prescribed. Due to persistent severe pain, lumbar medial

branch nerve blocks at L3-L5 were performed, with consideration of future

medial branch blocks on the left and right, along with radiofrequency ablation.

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 Dr. Gregory Snider performed an independent medical evaluation (IME)

at Webasto’s request on September 28, 2021, which included a medical

history, review of medical records, and physical examination. Dr. Snider

diagnosed Carter as having

low back pain radiating to his left thigh. Imaging studies revealed
degenerative change. In my opinion, this is likely multifactorial,
arising from age, obesity, prior knee injury with altered gait, and
potentially a work-related component. It is clear from the medical
records that Mr. Carter was at least intolerant to certain activities
at Webasto and was aware of a work-related etiology as far back as
2016.

Regarding causation, Dr. Snider further elaborated:

Mr. Carter has evidence of multilevel degenerative change,
somewhat in advance of what one would expect based solely on his
age and habitus. These changes were symptomatically aggravated
by his work at Webasto, at least according to the medical record. . .
.

As above, Mr. Carter’s complaints are multifactorial and other
contributing causes are age, habitus, altered gait from remote left
knee injury, diabetes, and other avocational activities.

Dr. Snider concluded Carter reached maximum medical improvement as of

January 13, 2021, and assigned a whole person impairment rating as follows:

According to the AMA Guides, 5th Edition, 1 for Mr. Carter’s lumbar
complaints, estimate 6% WPI. In my opinion, half of this is
apportioned to avocational factors and half to aggravation over the
last four or so years of his employment at Webasto. Total: 3% WPI
for assumed cumulative trauma.

In a supplemental report issued on November 22, 2021, Dr. Snider noted all

parties agreed a work-related back injury occurred in 2016. Having assumed

1 American Medical Association (AMA), Guidelines to the Evaluation of

Permanent Impairment (5th ed. 2000).

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Carter’s back pain persisted since that date, Dr. Snider determined the work-

related impairment would have been established in 2016.

Dr. Gregory Nazar performed an IME at Carter’s request and issued a

rebuttal report on December 8, 2021. He agreed with Dr. Snider’s assessment

of a 6% AMA impairment rating but disagreed in relation to manifestation and

apportionment.

Regarding the onset of Carter’s symptomatic condition, Dr. Nazar opined

Carter’s cumulative trauma low back injury had manifested on August 20,

2019, when the severity of his pain caused him to seek medical attention.

Regarding apportionment, Dr. Nazar attributed 80% of Carter’s back

condition to pre-existing conditions and only 20% to the cumulative traumatic

impact of his work. Carter’s pre-existing conditions included his genetic or

familial predisposition for developing symptomatic degenerative spinal

conditions, his morbid obesity demonstrated by carrying 280 pounds on a

5’11” frame, his advancing age of 62 years, and his history of ongoing

symptomatic degenerative changes which had previously resulted in milder

back discomfort. Though Dr. Nazar opined Carter had qualified for no AMA

impairment rating prior to August 20, 2019, he nonetheless concluded these

pre-existing conditions had already placed Carter on a progressive course for

development of increasingly painful low back symptoms even absent his work

environment, which merely accelerated the occurrence.

On March 16, 2022, the ALJ issued a Benefit Review Conference (BRC)

Order and Memorandum, which listed the following contested issues: (1)

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injury under the Act; (2) work-relatedness/causation; (3) statute of limitations;

(4) temporary total disability benefits; (5) KRS 2 342.730 benefits; (6) pre-

existing disability and/or impairment exclusion; (7) credit/offsets; and (8)

unpaid or contested medical expenses. Additionally, the ALJ noted that the

timeliness of Webasto’s statute-of-limitations defense had been placed into

issue.

Upon consideration of the evidence, the ALJ issued an opinion, award,

and order on May 16, 2022. The ALJ determined Carter had carried his

burden of establishing a compensable work-related injury. The ALJ awarded

Carter medical expenses and permanent partial disability benefits based upon

the 3% impairment rating assessed by Dr. Snider with enhancement by the “3”

multiplier 3 because Carter could not return to his pre-injury duties. The ALJ

further rejected Webasto’s statute of limitations defense based on Carter’s

testimony that his 2016 back complaints had completely resolved. As found by

the ALJ, Carter’s testimony in this regard was supported by the medical

records of Dr. Roberts which did not reflect any treatment for back pain from

late 2016 until August 23, 2019. The ALJ further relied on Dr. Nazar’s opinion

that Carter had a 0% impairment rating prior to August 2019.

Carter filed a petition for reconsideration arguing he was entitled to

benefits based on the entire 6% impairment rating, while Webasto filed no

petition. The ALJ granted Carter’s petition for reconsideration in part,

2 Kentucky Revised Statutes.

3 See KRS 342.730(1)(c)1.

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modifying the opinion and award to correct a factual misstatement regarding

Dr. Nazar’s assessment. However, the ALJ denied reconsideration of his

decision to award benefits based on the 3% work-related AMA impairment

rating as assessed by Dr. Snider. Thereafter, Carter appealed to the Board and

Webasto cross-appealed.

In a decision entered on October 28, 2022, the Board affirmed in part

and reversed in part. The Board affirmed the ALJ’s determination of benefits

based upon the 3% work-related AMA impairment rating. However, the Board

vacated the award of benefits and remanded to the ALJ for additional findings

pertaining to the manifestation date of Carter’s cumulative trauma injury for

statute of limitations purposes. The Board concluded the ALJ failed to

undertake the proper analysis of KRS 342.185(3), which provides a cumulative

trauma claim shall be filed “within two (2) years from the date the employee is

told by a physician that the cumulative trauma is work-related.” On remand,

the Board directed the ALJ to

make additional findings and determine the date of manifestation
pursuant to the correct legal standard set forth in the statute and
pertinent cases. . . . After doing so, the ALJ shall resolve the
statute of limitations issue and make determination as to whether
Carter filed his Form 101 within two years of the date of
manifestation. Should the ALJ determine the claim was not filed
within the two-year statute of limitations, he shall enter an
amended order dismissing Carter’s claim for failure to comply with
the statute of limitations, KRS 342.185(3). Should the ALJ
determine Carter’s claim was filed within the two-year statute of
limitations pursuant to KRS 342.185(3), he may reinstate his order
and award based upon the impairment rating assessed by Dr.
Snider.

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 Carter petitioned the Court of Appeals for review of the Board’s decision.

The Court of Appeals affirmed the Board in a unanimous opinion. Carter v.

Webasto Roof Sys., No. 2022-CA-001340-WC, (Ky. App. June 9, 2023). He now

appeals to this Court as a matter of right. 4

STANDARD OF REVIEW

Review from an ALJ’s decision on a workers’ compensation claim

proceeds on three levels. Lexington Fayette Urb. Cnty Gov’t v. Gosper, 671

S.W.3d 184, 199 (Ky. 2023). “The Board performs the first level of review[,]” as

set forth in KRS 342.285, and functions essentially to correct error, “though

without the power of constitutional review.” Id. The Court of Appeals performs

the second level of review from the decisions of the Board pursuant to KRS

342.290 with the purpose of correcting the Board only where “the Court

perceives the Board has overlooked or misconstrued controlling statutes or

precedent, or committed an error in assessing the evidence so flagrant as to

cause gross injustice.” Id. (quoting W. Baptist Hosp. v. Kelly, 827 S.W.2d 685,

687-88 (Ky. 1992)). Further review by this Court is available “as a matter of

right under Section 115 of the Kentucky Constitution[,]” and is meant to

address “new or novel questions of statutory construction, or to reconsider

precedent when such appears necessary, or to review a question of

constitutional magnitude.” Id. at 200 (quoting W. Baptist, 827 S.W.2d at 688).

4 KY. CONST. § 115; Vessels ex rel. Vessels v. Brown-Forman Distillers Corp., 793

S.W.2d 795, 798 (Ky. 1990).

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Thus, we “will not simply ‘third guess’ the decisions of the Board and the Court

of Appeals upon the same evidence.” Id.

In determining disputed issues of fact, “the ALJ as ‘the finder of fact . . .

has the authority to determine the quality, character and substance of the

evidence presented.’” Id. at 198 (quoting Paramount Foods, Inc. v. Burkhardt,

695 S.W.2d 418, 419 (Ky. 1985)). Additionally, “an ALJ has sole discretion to

decide whom and what to believe, and may reject any testimony and believe or

disbelieve various parts of the evidence, regardless of whether it comes from

the same witness or the same adversary party’s total proof.” Id. (quoting

Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)). On

appellate review, “the standard of review is whether the [factual] finding was

‘clearly erroneous,’ meaning ‘unreasonable under the evidence presented.’” Id.

at 199 (quoting Letcher Cnty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 126 (Ky.

2019)). However, we review “questions of law and the application of law to

facts under the de novo standard.” Id.

ANALYSIS

Carter first argues the Court of Appeals and Board erred by affirming the

ALJ’s reliance on Dr. Snider’s opinion attributing half of the 6% AMA

impairment rating to nonoccupational factors. 5 He specifically contends Dr.

Snider’s opinion did not comply with apportionment analysis set forth by

5 Carter also argues his own expert, Dr. Nazar, failed to comply with the AMA

Guides regarding apportionment of causation. However, as the ALJ did not rely on Dr.
Nazar’s opinions as to the impairment rating, we need not address this issue.

11
Section 1.6 on pages 11-12 of the AMA Guides, and that the apportionment

further failed to comply with the decision of the Court of Appeals in Finley v.

DBM Techs., 217 S.W.3d 261 (Ky. App. 2007). We disagree.

Initially, we note Carter’s argument concerning compliance with the AMA

Guides was not listed as a contested issue in the BRC order. However, Carter

had previously listed this issue as contested in a disclosure filed on June 28,

2021. Further, the issue was argued and briefed by Carter at all levels of

litigation. Apparently, the ALJ, Board, and the Court of Appeals treated the

issue as properly preserved or otherwise subsumed within the work-

relatedness and causation arguments. Perceiving no indication this issue was

waived, we turn to the merits.

KRS 342.730(1)(e) specifically precludes “impairment for nonwork-related

disabilities” from being considered in determining the extent of a claimant’s

partial permanent disability. Tudor v. Indus. Mold & Mach. Co., Inc., 375

S.W.3d 63, 66 (Ky. 2012). In Gosper, we recently summarized the law

pertaining to work-related causation in the workers’ compensation setting as

follows:

[w]ork-related causation is a factual determination subject to the
sound discretion of the ALJ, as the finder of fact. When
determination of causation demands medical understanding and
analysis beyond mere lay knowledge and skill, “the question is one
properly within the province of medical experts” and “disregarding
the medical evidence” is not justified. Medical opinions addressing
causation need not be stated with absolute certainty or
conclusiveness but are sufficient if expressed within “reasonable
medical probability.” The mere possibility of work-related
causation is insufficient. While KRS 342.0011(1) requires objective
medical findings of a harmful change in the human organism to

12
 establish a compensable “injury,” the statute does not limit proof of
the causation of such an “injury” to objective medical findings.

671 S.W.3d at 202 (internal citations omitted). Further, “[i]t is the quality and

substance of a physician’s testimony, not the use of particular ‘magic words,’

that determines whether it rises to the level of reasonable medical probability,

i.e., to the level necessary to prove a particular medical fact.” Brown-Forman

Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).

Carter correctly cites the rule that a physician’s opinion pertaining to an

impairment rating must be based on the AMA Guides. Jones v. Brasch-Barry

Gen. Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006). However, for an

impairment rating to be properly based on, or “grounded in the Guides is not to

require a strict adherence to the Guides, but rather a general conformity with

them.” Plumley v. Kroger, Inc., 557 S.W.3d 905, 912 (Ky. 2018). Moreover, we

have long recognized “[t]he proper interpretation of the Guides and the proper

assessment of an impairment rating are medical questions.” Id. at 913

(quoting Kentucky River Enters., Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003)).

Ultimately, “this Court’s only prerogative is to evaluate the ALJ’s decision to

ensure that it is not contrary to the evidence.” Id.

We may briefly dispose of Carter’s argument regarding the proper use of

the AMA Guides by noting the absence of any medical evidence of record

criticizing Dr. Snider’s use of the Guides generally or his apportionment of

causation particularly. Moreover, in his rebuttal to Dr. Snider’s opinion, Dr.

Nazar, reported:

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 In the IME examination by Dr. Gregory Snider, he initially
apportions 50% of his impairment rating to pre-existing factors
and 50% to his cumulative work-related disability culminating on
the date of August 20, 2019. I feel that is likely a reasonable
assessment, although as you know in my IME report, I felt a little
more strongly that the pre-existing component was greater (80%)
in his circumstance.

(Emphasis added). Dr. Nazar reaffirmed his general approval of Dr. Snider’s

methodology stating, “It appears we both agree (at least on his initial report)

that a portion of this [6% impairment rating] should be apportioned to pre-

existing problems, as opposed to the work-related injury itself from the

cumulative lifting he was doing.” Under these circumstances, it was

incumbent on Carter to produce some affirmative evidence contradicting Dr.

Snider’s apportionment method whether by cross-examination or contrary

medical opinion. We will not substitute our independent interpretation of the

AMA Guides for that of the medical experts.

Further, we adhere to “[t]he general rule . . . that compensation must be

allowed for all of the injurious consequences flowing from the original injury,

and not attributable to an independent, intervening cause.” Ford Motor Co. v.

Jobe, 544 S.W.3d 628, 633 (Ky. 2018) (quoting Beech Creek Coal Co. v. Cox,

314 Ky. 743, 744, 237 S.W.2d 56 (1951)). Pertaining to apportionment of

causation, Kentucky workers’ compensation law recognizes a distinction

between a pre-existing dormant condition that is aroused into disabling reality

by the work-related injury and a pre-existing active condition that

independently produces all or part of the final disability. Finley, 217 S.W.3d at

14
265; see also 8 Larson’s Workers’ Compensation Law § 90.04[1]-[2] (2023). A

pre-existing dormant condition occurs

where the underlying pre-existing disease or condition is shown to
have been asymptomatic immediately prior to the work-related
traumatic event and all of the employee’s permanent impairment is
medically determined to have arisen after that event—due either to
the effects of the trauma directly or secondary to medical treatment
necessary to address previously nonexistent symptoms
attributable to an underlying condition exacerbated by the event[.]

Finley, 217 S.W.3d at 265. Conversely, a pre-existing active condition “must

be symptomatic and impairment ratable pursuant to the AMA Guidelines

immediately prior to the occurrence of the work-related injury.” Id. An

employer bears the burden to prove the existence of a pre-existing condition.

Id.

However, this Court has also recognized, in certain “atypical” situations,

“the employee’s pre-existing medical condition cannot be classified as either

active or dormant.” Wetherby v. Amazon.com, 580 S.W.3d 521, 530 (Ky. 2019).

Indeed, every deduction from an impairment rating is not necessarily a “carve-

out” under Finley, but instead, may result from the mandatory application of

the AMA Guides. Id. at 528. Indeed, page 381 of the AMA Guides specifically

discusses the apportionment of causation to a spinal injury as follows:

If requested, apportion findings to the current or prior condition,
following jurisdiction practices and assuming adequate information
is available on the prior condition. In some instances, to apportion
ratings, the percent impairment due to previous findings can
simply be subtracted from the percent based on the current
findings. Ideally, use the same method to compare the individual’s
prior and present conditions. . . . Because there are two methods
and complete data may not exist on an earlier assessment, the
apportionment calculation may be less than an ideal estimate.

15
(Emphasis added).

Here, Dr. Snider opined Carter’s “age, habitus, altered gait from remote

left knee injury, diabetes, and other avocational activities” were independent

contributing causes to the back pain he experienced. This assessment was

based on Dr. Snider’s physical examination and review of Carter’s pertinent

medical history and records. He attributed these nonoccupational factors to

account for 50% of the total current 6% impairment rating. Importantly, Dr.

Snider neither made any conclusion these pre-existing conditions were

dormant and otherwise aroused by the cumulative work-related trauma, nor

did he specifically opine these pre-existing conditions were actively

symptomatic at the time Carter asserted the manifestation of cumulative

trauma.

Thus, as in Wetherby, the present appeal is distinguishable from Finley,

217 S.W.3d at 266, where the undisputed medical evidence compelled a finding

the claimant’s work-related injury exacerbated a pre-existing dormant

condition, and the only question was whether the pre-existing condition was

aroused permanently or merely temporarily. In the absence of contrary

medical evidence, we view any purported deficiencies concerning the lack of

explanatory detail in Dr. Snider’s report to merely affect the weight and

credibility of the evidence, the evaluation of which is committed to the sound

discretion of the ALJ. We decline Carter’s invitation to expand the holding of

Finley, and further conclude the Board and the Court of Appeals were correct

16
in determining that Dr. Snider’s report constituted substantial evidence upon

which the ALJ was entitled to rely.

Carter next argues the Court of Appeals erred by affirming the Board’s

decision to vacate the award and remand to the ALJ for additional findings

regarding the manifestation date for his cumulative trauma. We disagree.

In 2018, the General Assembly enacted KRS 342.185(3) to set forth the

applicable limitations period in cumulative trauma claims as follows:

The right to compensation under this chapter resulting from work-
related exposure to cumulative trauma injury shall be barred
unless notice of the cumulative trauma injury is given within two
(2) years from the date the employee is told by a physician that the
cumulative trauma injury is work-related. An application for
adjustment of claim for compensation with respect to the injury shall
have been made with the department within two (2) years after the
employee is told by a physician that the cumulative trauma injury is
work-related. However, the right to compensation for any
cumulative trauma injury shall be forever barred, unless an
application for adjustment of claim is filed with the commissioner
within five (5) years after the last injurious exposure to the
cumulative trauma.

(Emphasis added). This provision was intended to

provide[] a bright-line two-year limitation period from the date the
plaintiff is told her cumulative trauma is work-related.
Additionally, it establishes a firm five-year repose period from the
date of last exposure.

Anderson v. Mountain Comprehensive Health Corp., 628 S.W.3d 10, 15 (Ky.

2021). “[T]he manifestation date . . . [is] the date a claimant is informed by a

physician that her cumulative trauma injury is work-related[.]” Ford Motor Co.

v. Duckworth, 615 S.W.3d 26, 32 (Ky. 2021). We have held “the manifestation

date is a necessary determination in cumulative trauma injury claims.” Id. at

17
33. Such a proper determination is required to establish “whether the claimant

filed his claim within two years of that date.” Id.

Here, by awarding benefits, the ALJ obviously rejected Webasto’s

argument that Carter’s claim was time barred due to his present debilitating

chronic low back symptoms and limitations being linked to the transient acute

complaints reported in 2016. However, the ALJ made no explicit factual

determination of when Carter was informed by a physician that his current

disabling condition and complaints were caused by work-related cumulative

trauma, thereby establishing a manifestation date congruent with the

requirements of KRS 342.185(3).

Thus, we agree with the Court of Appeals and the Board that the ALJ’s

findings did not comport with KRS 342.185(3). And, because the Board retains

authority under KRS 342.285 (2)(c) to determine whether an award conforms

with KRS Chapter 342 “regardless of whether the particular error in applying

the law . . . was contested by a party,” we hold Webasto’s failure to file a

petition for reconsideration on this issue did not preclude the Board from

remanding to the ALJ for a factual determination of the manifestation date and

application of the appropriate legal standard to establish the claim’s timeliness.

See Whittaker v. Reeder, 30 S.W.3d 138, (Ky. 2000).

We reject Carter’s assertion that remand for additional findings would be

an exercise in futility. Specifically, his argument that no evidence suggests any

physician ever informed him that his injuries were work-related is belied by our

review of the record. At the final hearing, Carter himself testified:

18
 My doctor told me that—that this came—could come from just
repetitive working, and over the years . . . things take wear and
tear on you, you know. I went to a—a Dr. Gish, and Dr. Gish had
said that.

Moreover, while other evidence of record may be equivocal, it, separate from

Carter’s own testimony, is sufficient to support a contested factual issue

relative to Webasto’s limitations defense. Putting aside Webasto’s continued

insistence that any cumulative trauma low back injury manifested in 2016,

page 18 of Dr. Gish’s April 16, 2021, medical record notes the onset of work-

related low back pain dating back “2 years: 2018[.]” Additionally, the medical

records from Carter’s initial evaluation with KORT therapy indicate June 8,

2019, as the onset date of injury. Alternatively, the records of Dr. Roberts

appear consistent with Carter’s claimed manifestation date of August 20, 2019,

and Dr. Nazar likewise adopted that date as the onset of Carter’s current

symptomatic condition.

Confronted by such conflicting evidence, it would be inappropriate for

this Court to invade the province of the trier of fact by inferring a manifestation

date from the ALJ’s award or otherwise making an independent finding. Thus,

we express no opinion regarding the appropriate manifestation date. On

remand, the ALJ, as trier, must exercise its discretion to make a finding in

accordance with KRS 342.185(3) based on its view of the evidence as a whole,

and thereafter apply the appropriate legal standard to weigh Webasto’s

limitations defense.

Accordingly, the decision of the Court of Appeals is hereby affirmed.

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 All sitting. VanMeter, C.J.; Bisig, Conley, Keller, and Nickell, JJ.,

concur. Thompson, J., concurs in result only by separate opinion in which

Lambert, J., joins.

THOMPSON, J., CONCURRING IN RESULT ONLY: I agree with the

majority’s resolution of the permanent impairment rating issue and agree that

our precedent requires that we vacate and remand for additional findings by

the Administrative Law Judge (ALJ) regarding the date Carter’s cumulative

trauma injury manifested to make it explicit that his workers compensation

action was not barred by the statute of limitations. However, I disagree with the

majority’s discussion of this later issue. The majority seems to imply that a

claimant being told by a doctor that a previous injury may be or is “work

related” can be interpreted in hindsight as the claimant being told that his

injury is in fact an ongoing progressive condition which constitutes a “work-

related cumulative trauma injury.” I also write separately to clarify the nature

of cumulative trauma injuries and how such diagnosis comes about.

“[C]umulative trauma injuries . . . have similarities to both single-

traumatic-event injuries and occupational diseases. Like single-traumatic-

event injuries, cumulative trauma injuries are the result of trauma and, like

occupational diseases, they develop over time.” Consol of Kentucky, Inc. v.

Goodgame, 479 S.W.3d 78, 82 (Ky. 2015). Cumulative trauma is essentially

“gradual wear and tear” or “many mini-traumas[.]” Id.; Randall v. Pendland,

770 S.W.2d 687, 688 (Ky. App. 1988).

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 The obligation to give notice and the period of limitations for a

cumulative trauma/gradual injury case is “triggered by a worker’s knowledge of

the harmful change and its cause rather than by the specific incidents of

trauma that caused it.” American Printing House for the Blind ex rel. Mutual Ins.

Corp. of America v. Brown, 142 S.W.3d 145, 148 (Ky. 2004). With a cumulative

trauma injury, the knowledge of the harmful change does not automatically

correspond with disability onset. Pine Branch Mining, LLC v. Hensley, 590

S.W.3d 268, 274 (Ky. App. 2019). It instead “becomes manifest (for purposes of

notice/limitations)” when the claimant is diagnosed with a work-related

cumulative trauma injury and advised of that fact. Id; Consol of Kentucky, Inc.,

479 S.W.3d at 84.

While Carter had the burden of proving that he was entitled to workers’

compensation benefits, the burden was on Webasco Roof Systems to prove that

his claim was barred by the statute of limitations. Letcher Cnty. Board of Educ.

v. Hall, 576 S.W.3d 123, 126 (Ky. 2019); Lizdo v. Gentec Equip. 74 S.W.3d 703,

705 (Ky. 2002).

Webesco argued that Carter suffered a cumulative trauma injury in 2016

and that his filing of his claim in 2021 was violative of the statute of

limitations. The ALJ’s findings of fact and conclusions of law flatly rejected this

argument because “the evidence does not support such a conclusion.” Instead,

the ALJ found that Carter’s testimony that he recovered from his back

problems in 2016 was credible and in accordance with his medical records

which did not reflect any treatment for any kind of low back problems from late

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2016 until August 23, 2019. The ALJ rejected Dr. Snider’s supplemental report

that Carter’s vocational impairment would have been established in 2016 as

not persuasive as it was premised on assumptions which were not supported

by the medical record. The ALJ resolved “[t]he above evidence supports a

conclusion that [Carter] did not suffer a permanent cumulative trauma injury

in 2016, but did suffer a permanent cumulative trauma injury on August 20,

2019. As such, [Carter’s] claim is not barred by the statute of limitations.”

I interpret such findings as rejecting any claim that Carter was told by a

doctor any time prior to August 23, 2019 (when he was first seen for the acute

pain suffered on August 20, 2019), that he had a work-related cumulative

trauma injury. As explained in Consol of Kentucky, Inc., 479 S.W.3d at 84, the

ALJ should have made an explicit finding as to when Carter was first informed

by a doctor that he had a work-related cumulative trauma injury and vacating

and remanding for such a finding is appropriate. But I vehemently disagree

with the majority’s implication that the ALJ could appropriately find, based on

the information submitted to it, that Carter received such a diagnosis prior to

August 23, 2019. 6

The majority’s focus on whether Carter knew he had a work-related

injury, a repetitive work-related injury, or the onset of such injury, rather than

6 The majority opinion states that in Carter’s Form 101 he claims he was

informed by Dr. Brandon Gish, his pain management physician, sometime after
seeking treatment from Dr. Shannon Roberts, on August 23, 2019, that his “condition
was possibly caused, at least in part, by work-related cumulative trauma.” Thus, it
was up to Webasto to disprove this initial manifestation date.

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when Carter was diagnosed and told by his doctor that he had a work-related

cumulative trauma injury—the standard of manifestation necessary to start the

statute of limitation clock—is puzzling. The manifestation date is not the date

of symptoms of a work-related injury, but the date when a claimant is informed

of the specific diagnosis that such injury is a work-related cumulative trauma

injury. The majority opinion states:

We reject Carter’s assertion that remand for additional findings
would be an exercise in futility. Specifically, his argument that no
evidence suggests any physician ever informed him that his
injuries were work-related is belied by our review of the record. At
the final hearing, Carter himself testified:

My doctor told me that—that this came—could come
from just repetitive working, and over the years . . .
things take wear and tear on you, you know. I went to
a—a Dr. Gish, and Dr. Gish had said that.

Moreover, while other evidence of record may be equivocal, it,
separate from Carter’s own testimony, is sufficient to support a
contested factual issue relative to Webasto’s limitations defense.
Putting aside Webasto’s continued insistence that any cumulative
trauma low back injury manifested in 2016, page 18 of Dr. Gish’s
April 16, 2021, medical record notes the onset of work-related low
back pain dating back “2 years: 2018[.]” Additionally, the medical
records from Carter’s initial evaluation with KORT therapy indicate
June 8, 2019, as the onset date of injury. Alternatively, the records
of Dr. Roberts appear consistent with Carter’s claimed
manifestation date of August 20, 2019, and Dr. Nazar likewise
adopted that date as the onset of Carter’s current symptomatic
condition.

(Emphasis added). All the alternative quoted “proof” that the majority relies

upon for its conclusion that there was an active and unresolved dispute as to

when Carter was first informed that he had a work-related cumulative trauma

injury, only supports the fact that Carter suffered a previous work-related

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injury based on the nature of his work, had work-related low back pain in 2016

and perhaps had further work-related low back pain in 2018 or 2019, prior to

the time his condition manifested as a disabling reality that was diagnosed as a

cumulative trauma injury. 7 Such pronouncements by doctors that Carter’s

pain was work-related and even Carter’s understanding that Dr. Gish told him

his pain “came” or “could come from . . . repetitive working . . . wear and tear”

(emphasis added) and Carter’s possible report to physical therapy that the

acute pain he suffered on August 20, 2019, may have begun a couple of

months earlier, is not the same as saying that any doctor ever informed Carter

prior to August 23, 2019, that he was diagnosed with a work-related

cumulative trauma injury.

As explained in Hill v. Sextet Min. Corp., 65 S.W.3d 503, 507 (Ky. 2001), a

claimant can be aware of having certain symptoms and experiencing flare-ups

of those symptoms and even be aware that those symptoms are associated with

that claimant’s work, yet not have been informed by a doctor that this work

“was gradually causing harmful changes . . . that were permanent.” A claimant

is not required to self-diagnose a gradual work-related injury in which the

demands of work have accelerated a degenerative condition into a disabling

reality. Id.

7 Webasco only asserted that Carter’s condition was manifested in 2016. There

is no reason to consider, then, whether later dates might qualify as the initial
manifestation date.

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 Because cumulative trauma injuries are gradual injuries, while the origin

of such injuries when they finally strike as a disabling reality may be very clear

when looking backwards, they are rarely clear before they become a serious

condition that requires ongoing and protracted medical treatment. Doctors

have no obligation to engage in speculation that work-related pain may actually

and eventually become permanently disabling at some point in the future.

While Carter did suffer a work-related injury in 2016, every indication is that

no one informed him at that time that he was suffering from work-related

cumulative trauma. This makes sense because indications were his injury was

temporary and either resolved or appeared to resolve, as he was able to return

to work, and apparently did not suffer any significant back pain after

recovering from that injury.

Minor back pain is a fact of life for many adults who have entered into

their middle or senior years and not worthy of any particular note unless and

until it becomes debilitating. Likewise, it is hardly surprising that a doctor

might attribute back pain to several possible causes without opining that a

worker has a work-related cumulative trauma, especially if at that time it did

not constitute an active impairment because it was not sufficiently advanced to

constitute any degree of permanent partial disability.

As Carter appeared to fully recover from his 2016 injury, there was no

need for any medical professional to look more closely at this injury and make

sweeping pronouncements about what future effects he might have from the

stresses of his physically demanding job. Simply put, the future was

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unknowable, and doctors deal much more with diagnosing the “here and now”

based on past trauma and past and current symptoms, rather than making

diagnoses based on what may happen in the future. Carter’s doctors may have

suspected that at some point he might have permanent work-related low back

problems but not know with any certainty when or if “the straw would break

the camel’s back.” Webasto failed to prove that if Carter’s doctors had such

suspicions, they were ever communicated to Carter as a diagnosis at any point

which would serve to divest Webasto of being liable for workers compensation

benefits for Carter’s work-related injury. Accordingly, I concur in result only.

Lambert, J., joins.

COUNSEL FOR APPELLANT:

James D. Howes
Law Office of James D. Howes

COUNSEL FOR APPELLEE:
Donald J. Niehaus
Walton Niehaus Law, PLLC

ADMINISTRATIVE LAW JUDGE:

Hon. Thomas Polites

WORKERS’ COMPENSATION BOARD:

Hon. Michael Wayne Alvey

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