Ford Motor Company v. Vikki Allen ( 2021 )

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NOT TO BE PUBLISHED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
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-2017-01439
VIKKI ALLEN; HONORABLE APPELLEES
JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD
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.
In 2012, Appellee, Vikki Allen (Allen), began working for Ford as an
assembler. On August 17, 2017, she filed a Form 101, Application 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 in 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 shoulder 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.
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(Emphasis 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 issue 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
his 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 cumulative 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 (Ky.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 set
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.
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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 injury 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
additional 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 drawing 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 cumulative trauma injuries, the obligation to
provide notice arises and the statute of limitations does
not begin to run until a claimant is advised by a physician
that he has a work-related condition.
...
. . . KRS 342.185(1) acts as both a statute of limitations
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
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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, we agree with the Board’s analysis and adopt
it as if it were our own.
Affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE VIKKI
ALLEN:
Joshua W. Davis
Priscilla C. Page Ched Jennings
Louisville, Kentucky Louisville, Kentucky
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