RENDERED: JUNE 4, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky
Court of Appeals

NO. 2021

- CA

- 0121

- WC

FORD MOTOR COMPANY APPELLANT

v. PETITION FOR REVIEW OF A DECISION

OF THE WORKERS ’ COMPENSATION BOARD ACTION NO. WC

- 2017

- 01439

VIKKI ALLEN; HONORABLE JONATHAN R

. WEATHERBY

, ADMINISTRATIVE LAW JUDGE ; AND WORKERS ’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

**   **  **

BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.

COMBS, JUDGE: This is a Workers’ Compensation case. Appellant, Ford Motor

Company, contends that the Workers’ Compensation Board exceeded its authority

in remanding this cumulative trauma claim to the Administrative Law Judge for

further analysis. Finding no error, we affirm.- 2

- In 2012, Appellee, Vikki Allen (Allen), began working for Ford as an

assembler. On August 17, 2017, she filed a Form 101, Applicati on for Resolution

of an injury claim, alleging a March 24, 2017

, injury to her right shoulder and neck

due to repetitive work duties. Allen subsequently amended the claim to include

her left shoulder. Allen had been treated for a right shoulder problem i n 2013.

According to her deposition testimony, she fully recovered and resumed her full

job duties on the assembly line without restrictions.

By Opinion and Order rendered on August 22, 2020, 1 the

Administrative Law Judge (ALJ) dismissed Allen’s right s houlder cumulative

trauma claim in its entirety, reasoning that:

Plaintiff’s right shoulder injury became manifest on March 1, 2013, when she presented to OHSIM [ 2 ] and was diagnosed with a repetitive motion injury to the right shoulder.

Because KRS [ 3 ] 342.185(1) acts as a statute of repose, a claim for work related right shoulder injury is barred if not filed within two years of the date of manifestation. The ALJ therefore finds that the Plaintiff’s right shoulder claim must be DISMISSED

.

1 As amended September 10, 2020.

2 Ford Motor Company Occupational Health and Safety Information System.

3 Kentucky Revised Statutes.- 3

-

(Empha sis original

. ) The ALJ did award benefits for the left shoulder, having

found that Allen “sustained a harmful change to the left shoulder

. . . due to

overcompensation and that the mechanism of injury is cumulative trauma.” The

left shoulder is not at issu e before us.

Allen appealed to the Workers’ Compensation Board (Board). By

Opinion rendered on December 30, 2020, the Board vacated in part and remanded

for additional findings and analysis as follows:

The above findings set forth by the ALJ explaining h is reasoning for determining Allen’s right shoulder condition manifested on March 1, 2013 are insufficient. Furthermore, the above demonstrates and [ sic ] improper analysis was performed in reaching this determination.

The law concerning when a cu mulative trauma injury manifests is clear. An injury caused by cumulative trauma manifests when a worker discovers that a physically disabling injury has been sustained [and] knows it is caused by work. [] Alcan Foil Products v. Huff

, [2 S.W.3d 96, 101 (K y.1999)]. In this claim, it is clear that the second part of the above test was never conducted to determine when Allen was advised by a medical professional that her right shoulder condition resulted from cumulative trauma. See also Consol of Kentucky v [

. ] Goodgame

, [479 S.W.3d 78 (Ky. 2015)]. In this claim, the record is simply devoid of any substantive evidence indicating Allen was aware, after having been advised by a physician, that her condition was work

- related in 2013. On remand, the ALJ must se t forth adequate evidence in the record indicating Allen was advised in 2013, if in fact she was, that she was suffering from a cumulative trauma injury to her right shoulder. We direct no specific result.- 4

- If, on remand, the ALJ determines the right shoulder cumulative trauma injury manifested in 2013, it is incumbent upon him to determine when the impairment rating for the right shoulder arose. Allen testified her condition related to the 2013 inj ury resolved and she experienced continuing cumulative trauma from 2013 until 2017. She testified she was able to perform her work activities without symptoms or limitations until March 24, 2017. In Special Fund v. Clark , [ 998 S.W.2d 487 (Ky. 1999)] the court explained that KRS 342.185 only operates to prohibit compensation for whatever occupational disability is attributable to trauma incurred more than two years preceding the filing of the claim. That portion of disability, if any, that results from

a dditional cumulative trauma within the two years leading up to and including the date that a claim is filed, and thereafter, may remain compensable.

Ford appeals

, arguing that the Board exceeded its appellate authority

by “re

- reviewing the evidence and d rawing contrary conclusions.” We disagree. In

Consol v. Goodgame

, where the ALJ failed to make a factual determination

regarding when the claimant was advised that he had a work

- related condition, our

Supreme Court held as follows :

[ F ] or cum ulative trauma injuries, the obligation to provide notice arises and the statute of limitations does not begin to run until a claimant is advised by a physician that he has a work

- related condition.

. . .

. . . KRS 342.185(1) acts as both a statute of l imitations and a statute of repose.

. . . For cumulative trauma injuries the running of both periods begins on the date the injured employee is advised that he has suffered a work

related cumulative trauma injury. Therefore, this claim- 5

- must be remanded to the ALJ so that she can determine when [the claimant] was advised that he suffers from a work

- related cumulative trauma injury. She must then determine if [the claimant] filed his claim within two years of that date.

479 S.W.3d at 82, 84. Accordingly, w e agree with the Board’s analysis and adopt

it as if it were our own.

Affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Joshua W. Davis Priscilla C. Page Louisville, Kentucky BRIEF FOR APPELLEE VIKKI ALLEN :

Ched Jennings Louisville, Kentucky