LAMBERT, JUDGE.
Central Service, Inc., has petitioned this Court for review of the opinion of the Workers' Compensation Board ("the Board") affirming in part, vacating in part, and remanding, the opinion and order of the Administrative Law Judge ("ALJ") awarding benefits based upon Mary Ann Yarbrough's claim for benefits due to work-related cumulative trauma to her hands and wrists. Central Service contends that the ALJ erred in finding that Yarbrough gave timely notice, in finding that the statute of limitations had not expired, and in failing to find a date of manifestation. In addition, Central Service contends that the Board substituted its judgment for that of the ALJ when it instructed the ALJ to take into consideration several facts upon remand related to making a specific finding of the manifestation date. Having reviewed the record as well as the parties' respective briefs, we affirm in part, vacate in part, and remand.
Yarbrough is currently a fifty-seven year old woman with a high school education, but no specialized or vocational training. She worked for Central Service for twenty-seven years until November 2007. During her work for Central Service, Yarbrough performed intricate and repetitive work repairing and maintaining telephones and pay phone handles. While she experienced some aches and pains after work, she testified that her hands and wrists did not become a significant enough problem to interfere with her work until 2005, when she sought treatment from Dr. Burton Stodghill. She underwent a series of surgeries, including carpal tunnel release.
On December 7, 2009, Yarbrough filed an application for resolution of injury claim, claiming an injury to her hands and wrists and listing a date of injury of October 3, 2005. She stated that she notified Central Service of her injury on October 13, 2005. The parties stipulated to coverage under the Act; that an employment relationship existed; that she sustained an alleged work injury on October 3, 2005; that temporary total disability payments were paid at a rate of $190.56 per week for various periods of time beginning December 15, 2005, and concluding January 2, 2008, for a total of $4,330.54; that her average weekly wage was $285.85; and that her last day of work was in November 2007 on the date of her surgery. Contested issues included the extent and duration of her disability, work-relatedness, and notice and statute of limitations. Central Service maintained that Yarbrough had been aware since 1999 or 2000 that she had carpal tunnel syndrome and that it was related to her work. Following the final hearing, the ALJ entered an opinion, order, and award on December 2, 2011, finding that Yarbrough had sustained a work-related injury on October 3, 2005, due to repetitive or cumulative trauma from her work for which she had sustained a 1% permanent impairment pursuant to the AMA Guides, 5
Central Service filed a petition for reconsideration regarding the ALJ's findings addressing the statute of limitations and notice defenses, noting that the ALJ rejected these defenses because Yarbrough had sustained cumulative trauma from work performed within the two-year period prior to January 2, 2008. Central Service stated that Yarbrough had listed the date of notice as October 13, 2005, on her Form 101 and that the ALJ had not determined the date Yarbrough's disability had manifested. It sought a more definite pronouncement of the date her disability manifested. Additionally, Central Service argued that Yarbrough's claim should be dismissed because she had stopped working more than two years before she filed her claim, meaning that she could not have incurred any additional work injuries during the two years prior to the filing of her claim. The ALJ denied Central Service's motion for reconsideration, noting her reliance on the parties' stipulations, including the payment of temporary total disability benefits, which meant that Yarbrough was not required to file her claim until two years past the date she last received benefits, which was December 22, 2007.
Central Service appealed to the Board, which entered an opinion affirming in part, reversing in part, and remanding. The Board affirmed the portion of the ALJ's decision related to the statute of limitations defense, but vacated on the issue of notice and the award of income and medical benefits. It then remanded the case to the ALJ for additional findings of fact and a determination regarding the manifestation date of Yarbrough's injury and whether she provided timely notice. On remand, the Board specifically directed the ALJ to consider several facts it deemed relevant, including:
This petition for review followed.
On appeal, Central Service contends that the ALJ erred in finding that Yarbrough had provided timely notice, that the statute of limitations had not expired, and in not stating the date on which the injury manifested. Additionally, Central Service argues that the Board went too far in directing the ALJ to consider specific evidence on remand, thereby substituting its judgment for that of the ALJ.
In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), the Supreme Court addressed its role and that of the Court of Appeals in reviewing decisions in workers' compensation actions. "The function of further review of the WCB in the Court of Appeals is 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., at 687-88.
Because the issues before us relate to notice and statute of limitations, we shall confine our review of the ALJ's order to those topics. After setting out the applicable law, the ALJ described her charge as determining: "(1) whether the claimant sustained repetitive or cumulative trauma from work performed within the two-year period before the application was filed; (2) and whether it caused a harmful change in her wrists and hands and (3) whether such a change entitled her to any benefits." The ALJ then made the following findings based upon the medical proof:
In Brummitt v. Southeastern Kentucky Rehabilitation Industries, 156 S.W.3d 276, 279 (Ky. 2005), the Supreme Court of Kentucky provided a general definition of gradual injury claims:
As the fact-finder, the ALJ must determine when a gradual injury becomes manifest in order to determine whether the employee provided timely notice and timely filed his or her claim.
We shall first address the Board's holding regarding notice. After determining that Yarbrough was not required to give notice of a gradual work-related injury in 2000 because she had not been told her condition was related to her work, the Board remanded the matter to the ALJ for a specific finding as to the date Yarbrough's gradual injury manifested, and, in turn, whether she provided timely notice to Central Service in October 2005. The Board provided the ALJ with several factors to take into consideration when making this finding. Central Service contends that the Board exceeded its authority in listing factors for the ALJ to consider when making findings related to the date of manifestation, and in making any finding as to the date of manifestation. While we disagree that the Board exceeded its authority in listing factors for the ALJ to consider, we agree with Central Service that the Board did exceed its authority in making any finding as to the date of manifestation.
The law is settled in Kentucky that the ALJ, as the fact-finder, has the sole discretion to weigh the evidence presented in a workers' compensation action and that the Board may not substitute its judgment for that of the ALJ:
FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007).
Based upon this statement of the law, we must agree with Central Service that the Board exceeded its authority when it made the finding that Yarbrough was not required to give notice in 2000, that her injury became manifest when she saw Dr. Stodghill, and that Dr. Stodghill's records establish April 21, 2010, as the earliest date of manifestation. These pronouncements all constitute fact finding by the Board, which is strictly prohibited. Accordingly, we hold that the Board properly remanded the matter to the ALJ to find the date of manifestation and whether timely notice was provided, but exceeded its authority in making other findings related to these determinations. However, with respect to the instructions the Board provided to the ALJ, we hold that in doing so the Board merely provided the ALJ with guidance as to the legal analysis of "gradual injury" and its manifestation for purposes of notice as set forth in Brummitt, supra. Accordingly, on remand, the ALJ is directed to make the required findings regarding the manifestation of the gradual injury and determine whether Yarbrough's notice to Central Service of her work-related injury on October 13, 2005, was timely, relying on the facts of record she, as the fact-finder, deems relevant and appropriate in conjunction with the directions the Board provided.
Turning to the statute of limitations issue, we must also vacate the Board's holding that Yarbrough did not violate the two-year statute of limitations when she filed her Form 101 on December 16, 2009, because this holding of the Board is also based upon the date the gradual injury became manifest. The Board held that Yarbrough did not violate the limitations period based upon Central Service's payment of temporary total disability benefits, on and off, from December 15, 2005, through January 2, 2008. However, as with the previous analysis, this holding assumes a date of manifestation, which the ALJ must find based upon the evidence. Once the ALJ determines the date of manifestation based upon substantial evidence introduced in the record, the decision may then be reached as to whether Yarbrough timely filed her claim on December 16, 2009, based upon the date of manifestation and, if necessary, the dates on which she received temporary total disability benefits.
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed in part and vacated in part, and this matter is remanded to the ALJ to make specific findings regarding the date Yarbrough's gradual injury manifested, whether she provided timely notice to Central Service, and whether she timely filed her workers' compensation claim. If necessary, the ALJ shall then consider the remainder of the Board's pronouncements regarding the award of permanent partial disability benefits and future medical benefits.
ALL CONCUR.
