Opinion
NO. 2016-CA-001265-WC
01-26-2018
ANN TAYLOR, INC. APPELLANT v. JAMES MCDOWELL; HONORABLE STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James G. Fogle Louisville, Kentucky BRIEF FOR APPELLEE: John W. Spies Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-65846 OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Ann Taylor, Inc., appeals from the Workers' Compensation Board opinion reversing in part, vacating in part and remanding the Administrative Law Judge's (ALJ) opinion, award and order regarding the ALJ's denial and dismissal of James McDowell's claim as to his right shoulder injury on the basis that he did not give adequate notice of this injury to Ann Taylor and he did not prove his work-related accident was the proximate cause of this injury.
On Thursday, October 2, 2014, McDowell, who was employed by Ann Taylor in shipping and receiving, was loading a semi-truck trailer with packages from a conveyor belt when he was injured. Although McDowell consistently reported hitting his right elbow on the conveyor belt while trying to avoid falling boxes, his testimony was inconsistent regarding how his shoulder was injured.
In McDowell's deposition testimony, he reported two other people were helping him load the truck. The conveyor belt extended about halfway down the truck, roughly equal distance from the left and right side of the trailer. McDowell was standing at the end of the conveyor belt, to its right. They were stacking boxes that typically weighed between twenty to twenty-five pounds but could weigh up to sixty pounds. McDowell hit his right elbow on the right side of the conveyor belt while facing the back of the truck and trying to avoid a stack of falling boxes.
However, McDowell alternatively testified that he only hit his right shoulder, hit his right shoulder and head, or hit his whole right side, on the right side of the truck. He fell against the truck's wall or to the truck's floor, fell against the side of the wall near the floor, or hit the wall and dragged down it and ended up on the floor. He either only hit his shoulder on the wall, or also hit it and his elbow on the floor.
The other two men who were on the truck saw what happened. McDowell then got up and resumed working.
McDowell testified in his deposition that he told his supervisor Gene Lilly about his injury that day and was directed to report it to Laura Whitlock. Whitlock offered to send McDowell to a doctor, but he declined treatment and elected to continue working.
The next day McDowell's pain was all the way up to his shoulder. On Monday, McDowell's elbow swelled while he was working and he taped ice bags to his elbow and continued to work. Later that day, Whitlock sent him to BaptistWorx.
In McDowell's deposition testimony originally testified that he was sent to BaptistWorx on Friday, October 3, 2014, but then based on seeing their records agreed it must have been on Monday, October 6, 2014. In McDowell's hearing testimony, his timeline was consistent with the relevant records. --------
McDowell testified that at that appointment he reported pain in his right elbow going to his shoulder but did not remember reporting any specific pain in his shoulder, that he struck his shoulder on anything or that he fell to the floor of the truck. At the evaluation, he recalled the medical professionals checked his shoulder when they moved his arm and he told them it was a little stiff.
McDowell testified he was present when Whitlock filled out the incident report on October 6, 2014, but did not remember seeing it or signing it. He remembered telling her he hurt his elbow but had pain extending to his shoulder.
McDowell testified that when he saw Dr. Bonnarens, he told him his arm was stiff from his elbow to his shoulder but did not tell him about any right shoulder pain. McDowell testified that he started to experience right shoulder pain the first week of physical therapy. The pain in his shoulder did not bother him until his elbow pain lessened. After he continued to have problems with his right shoulder during physical therapy, the therapist expressed concerns with his shoulder because he was having trouble lifting it and told him to tell his doctor. He attributed the pain in his shoulder to his fall.
McDowell first told Whitlock about his right shoulder hurting when he turned in paperwork about his physical therapy. He was told to have it examined, but no paperwork was completed.
McDowell told Dr. Bonnarens about his problems with his shoulder when he returned to him after four weeks of physical therapy. He was later diagnosed with a torn rotator cuff and had surgery.
At the hearing, McDowell testified he hit his elbow on the conveyor belt, fell back and hit his shoulder against the side of the truck. By lunchtime, he had pain from his wrist through his elbow but not all the way to his shoulder. He told his supervisor Lilly about his injury that day and was directed to report it to Whitlock. He told Whitlock "I fell and hit my elbow and stuff, just like that."
McDowell was receiving overtime and did not want to lose it. He applied ice after work. He worked full days on Thursday, October 2, 2014, Friday, October 3, 2014, Saturday, October 4, 2014. He was off Sunday but returned to work on Monday, October 6, 2014.
McDowell testified that the information he wrote down about his accident on BaptistWorx's new injury patient information form "[l]oading boxes in trailer, hit elbow on conveyor" was an accurate description but he also fell backwards and hit his shoulder on the truck. He said he did not write down this additional information because it was mainly his elbow bothering him and he was worried about losing overtime work. McDowell admitted he did not tell Dr. Bonnarens he had fallen and did not report shoulder pain.
McDowell testified that at his March 19, 2015 appointment, he told Dr. Bonnarens about hitting his shoulder and falling. He testified that Dr. Bonnarens's description of what happened on his medical report for that visit was correct but incomplete.
The first report of injury indicated shipping supervisor Whitlock was notified on October 6, 2014, and filed the report that day. It stated McDowell was loading a trailer when he hit his elbow on the conveyor.
BaptistWorx's records indicate McDowell was seen on October 6, 2014, for right elbow pain from a work injury that occurred on October 2, 2014. According to the new injury patient information form McDowell filled out and signed, he was loading boxes in a trailer when he hit his elbow on the conveyor. McDowell was examined, sent to have his elbow x-rayed and then diagnosed with a right olecranon process fracture with a chip to the bone.
Records from McDowell's treating orthopedic physician, Dr. Frank Bonnarens, indicated his first visit was on October 9, 2014. McDowell presented with pain in the right elbow. "He said he was loading things on to conveyor when he struck the elbow. . . . Patient did not report any falls." The physical examination showed McDowell "demonstrates good range of motion of his upper extremities." Dr. Bonnarens's overall impression was that it was an olecranon bursitis, early and X-rays of the elbow showed that McDowell had an osteolyte, possible small chip off. He referred McDowell for physical therapy.
According to Dr. Bonnarens's records, on November 6, 2014, McDowell complained of pain in his right elbow and shoulder and, after an examination, Dr. Bonnarens suspected a torn rotator cuff and referred McDowell for an arthrogram MRI of his right shoulder.
The MRI took place on December 16, 2014. On December 18, 2014, Dr. Bonnarens noted "MRI does show a tear of the supraspinatus tendon, shows partial tearing of the labrum, and AC joint arthropathy. It looks like we are dealing primarily with a rotator cuff tear. This is consistent with the injury he describes."
On March 6, 2015, when Dr. Bonnarens responded to questions on a form from Ann Taylor's insurance company he indicated that the recommended rotator cuff surgery was not causally related to McDowell's work injury and McDowell was asymptomatic prior to his work injury.
According to Dr. Bonnarens's records, during McDowell's March 19, 2015 appointment, he provided a clarified patient history as to how he was injured. McDowell reported that falling boxes pushed him backwards making him fall into the conveyor belt, striking his elbow. He did not notice his shoulder injury until the pain left his elbow and he realized there was pain in his shoulder. Dr. Bonnarens then stated "[b]ased on the information and the history provided by the patient, it does look like that the rotator cuff tear was reasonably related to his fall[.]"
On September 11, 2015, Dr. Bonnarens filled out a medical questionnaire for Ann Taylor's insurance company and responded to the pertinent questions. Dr. Bonnarens stated that the mechanism of McDowell's injury was inconsistent with what he described during his deposition, because his injury would have required a 180-degree spin. However, Dr. Bonnarens also reported that the mechanism of his injury was consistent with McDowell hitting his shoulder on the wall. Dr. Bonnarens opined that McDowell's right shoulder surgery was related to his work injury based on his history, but was not consistent with a reconstruction of the accident.
Dr. Craig Roberts performed an independent medical evaluation (IME) of McDowell on August 20, 2015. He reported McDowell had "a work-related injury on October 2, 2014, while loading a truck when some boxes began to fall and he fell backwards striking his right elbow on a conveyor belt and then striking his right shoulder onto the ground." His diagnostic impression was that McDowell's right shoulder rotator cuff tear was "[t]o a reasonable degree of medical probability, . . . the result of the work-related injury of October 2, 2014."
The ALJ thoroughly summarized McDowell's pertinent testimony in his opinion. He noted that McDowell changed his story several times during his deposition and at the final hearing. The mechanism for how McDowell's shoulder could have been injured involved him hitting his right elbow on the conveyor in the middle of the truck and somehow hitting the remaining right side of his body on the side of the truck itself or hitting his right shoulder against the side of the truck just below the floor. The ALJ also noted the documentary evidence recorded immediately after the accident showed that McDowell did not report any fall or injury to his shoulder to any of his medical providers or employer in the days immediately following his workplace accident. The ALJ opined:
Based on this documented history, I can only conclude that Plaintiff failed to report a right shoulder injury, symptoms or any falls occurring on October 2, 2014 to Dr. Bonnarens one week after the now alleged occurrence of a fall or collision with the wall of the truck at the time he also injured his left elbow. This is significant because the statute does not necessarily require an injured worker to be aware of, and report each injury resulting from an accident, but must report the accident itself. Reliance Diecasting Co. v. Freeman, 471 S.W.2d 311 (Ky. 1971). Here, the employer was only timely apprised of an accident involving harmful contact of the employee's right elbow with a conveyor. There was no report of a fall that caused injury or potential injury.
. . .
Despite the consistent reporting of right elbow pain and injury to the right elbow only, Plaintiff now presents with claims of right shoulder pain and a right shoulder injury. Of significance is that he not only claims a new body part that sustained an injury on Thursday, October 2, 2014, but also a separate mechanism of injury.
It was only on 12/16/2014, some 2 1/2 months after the supposed date of injury that Dr. Bonnarens was presumably informed of the alleged right shoulder injury as that is when he ordered an arthrogram MRI of right shoulder, arthroscopic repair of rotator cuff and physical therapy. The MRI of right shoulder dated 12/16/2014 revealed a tear of the supraspinatus tendon, also showing partial tearing of the labrum, and AC joint arthropathy.
The Plaintiff now reports that not only did he hit his right elbow on the conveyor, but also falling boxes caused him to completely fall backward onto the side of the truck and as a result, he struck his right shoulder on the truck wall. Plaintiff's reporting of the new mechanism of injury and body part injured months after it occurred is inconsistent.The ALJ opined that McDowell's testimony was unreliable because he was inconsistent about how his shoulder was injured. The ALJ questioned how McDowell could suffer both an elbow injury and a contemporaneous torn rotator cuff and not notice pain from that condition until two and one-half months post-trauma.
In his report dated 03/06/2015, Dr. Bonnarens determined that the right shoulder injury and need for subsequent surgery is not related to the events of October 2, 2014.
In his subsequent report dated 09/11/2015, Dr. Bonnarens concluded that the mechanism of injury described by the Plaintiff in his deposition transcript was physically impossible and would require a 180-degree spin. As such, Dr. Bonnarens determined that the event described by the Plaintiff in his deposition transcript, inconsistent with his initial reporting of the incident, did not cause his current right shoulder condition or the subsequent need for right shoulder arthroscopic surgery.
The contradictory versions concerning how and when the alleged injury to Plaintiff's right shoulder occurred, coupled with the medical evidence in the record creates serious concerns regarding the Plaintiff's credibility as a witness. This lack of credibility compels a conclusion that Plaintiff's current post-injury condition to his right shoulder is wholly unrelated to the Thursday, October 2, 2014 work incident and should be dismissed for his failure to establish work-relatedness between a
very real rotator cuff tear and what seems to be a completely fictitious version as to how and when that condition occurred.
The Defendant/Employer also asserts that the Plaintiff's claims should be dismissed for failure to give due and proper notice of the alleged right shoulder injury.
. . .
As I have noted previously, his current allegations of reporting a right shoulder injury to his employer immediately following the incident is not consistent or corroborated in the employer's records, First Report of Injury, medical records, or recorded statement obtained in February, 2015, over four months post-injury. His current version of events is simply not credible in comparison to the version of events that was presented on several occasions within a temporal proximity to the incident in question. Consequently, I find that Plaintiff's claim of right shoulder injury should also be dismissed for failure to give due and timely notice to the employer.
In the ALJ's relevant findings of fact and conclusions of law, he stated as follows:
2. Findings of fact and conclusions of law made by the undersigned ALJ as set out in the foregoing "Analysis" which are incorporated by reference herein, the same as if set out in words and letters.
. . .
5. Based on the total weight of the lay and medical evidence regarding the Plaintiff's claimed work accident of 10/02/2014 that allegedly resulted in a rotator cuff injury to Plaintiff's right shoulder, I find that the Plaintiff has failed to carry his burden of proof that he suffered a work-related accident on 10/02/2014 that was the proximate cause of a right shoulder injury for the reasons I have articulated in the foregoing "Analysis."
6. I further find, that as to the alleged work injury to the right shoulder of 10/02/2014, the Plaintiff failed to give the Defendant/Employer due and timely notice of the alleged work accident that caused the claimed work-related injury. KRS 342.281.The ALJ dismissed McDowell's claim as to his right shoulder injury.
McDowell filed a petition for reconsideration arguing the ALJ made insufficient factual findings. The ALJ denied the petition, noting he incorporated his analysis section into his findings of fact and conclusions of law.
On appeal to the Workers' Compensation Board, McDowell argued: (1) the ALJ erred in dismissing his right shoulder claim due to failure to give due and proper notice; and (2) the ALJ failed to make adequate findings of fact on the issue of causation regarding McDowell's alleged right shoulder condition and requested remand for additional findings.
The Board noted that while a right shoulder injury was not mentioned in the first report of injury or illness, McDowell testified he reported pain from his elbow to his shoulder to his employer, testified that he never reviewed the injury report and the report was not signed. It also noted that McDowell's shoulder injury was discovered quickly; McDowell complained of right shoulder pain to Dr. Bonnarens a month after his injury and was diagnosed with a rotator cuff tear two-months after his injury. Dr. Bonnarens opined that a torn rotator cuff was consistent with the injury McDowell described and that it was reasonably related to his fall. Because McDowell never signed the injury report, the Board held "[b]ased on this fact alone, it would be impossible for the ALJ to determine exactly what McDowell gave notice of regarding shoulder pain when the injury report was filled out. The ALJ's dismissal of McDowell's right shoulder claim due to lack of due and proper notice is erroneous and reversed as a matter of law." It ordered "[i]n an amended opinion and order, the ALJ shall find that notice of McDowell's right shoulder condition was due and proper."
The Board determined the ALJ made inadequate findings as to causation, noting that he only wrote two sentences regarding causation. It stated the ALJ did not sufficiently articulate his findings to apprise the parties and the Board of the reasons for his ultimate conclusions. It also took issue with the ALJ's lack of credibility finding for McDowell where it was based in part upon medical evidence that the ALJ did not specifically identify what that evidence was and Dr. Bonnarens expressed opinions establishing a causal relationship between the work incident and the shoulder injury. The Board vacated and remanded for additional findings. Ann Taylor appealed.
"Appellate review of an ALJ's decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law." Miller v. Go Hire Employment Dev., Inc., 473 S.W.3d 621, 629 (Ky.App. 2015). Reversal is not warranted merely because there is evidence that would have supported a different outcome; it is only warranted where there was no evidence of substantial probative value to support the ALJ's decision. Id.
"It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers' compensation claim." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). The claimant must prove each element through substantial evidence, which is "defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999).
The ALJ is the exclusive finder of fact pursuant to Kentucky Revised Statutes (KRS) 342.285(1). The ALJ "has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App. 2009). "[A]n ALJ 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." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007).
"[A]n ALJ is vested with broad authority to decide questions involving causation." Miller, 473 S.W.3d at 629. Where medical evidence is conflicting concerning causation, the question of which evidence to believe and what inferences are to be drawn from it, is the exclusive province of the ALJ. Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004); Square D. Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993).
In making its decision, the ALJ must provide a sufficient explanation of the basis for its decision by summarizing the conflicting evidence concerning disputed facts, weighing the evidence to make findings of fact and determining the legal significance of those findings to enable adequate review. Miller, 473 S.W. 3d at 630. "Only when an opinion summarizes the conflicting evidence accurately and states the evidentiary basis for the ALJ's finding does it enable the Board and reviewing courts to determine in the summary manner contemplated by KRS 342.285(2) whether the finding is supported by substantial evidence and reasonable." Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 62 (Ky. 2012) (footnote omitted).
Ann Taylor argues the Board usurped the ALJ's authority by making a finding of fact that McDowell gave proper notice. It argues there was conflicting evidence as to whether McDowell gave notice to his employer as soon as practicable and the ALJ properly made findings resolving which evidence was credible and properly found that notice a month after the accident was untimely and the notification about the elbow injury was insufficient for it to be able to anticipate a torn rotator cuff.
KRS 342.185, KRS 342.190, and KRS 342.200 govern the notice requirement. Granger v. Louis Trauth Dairy, 329 S.W.3d 296, 298 (Ky. 2010). KRS 342.185(1) states that "no proceeding under this chapter for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof[.]" KRS 342.190 requires that the notice "shall state . . . [the] nature and cause of the accident[.]" KRS 342.200 states:
The notice shall not be invalid or insufficient because of any inaccuracy in complying with KRS 342.190 unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this chapter if it is shown that the employer, his agent or representative had knowledge of the injury or that the delay or failure to give notice was occasioned by mistake or other reasonable cause.
"The requirement of KRS 342.185 that notice of 'accident' be given as soon as practical has been construed, in light of KRS 342.190, to mean that notice of injury must be given, and this means notice of 'the specific injury for which the employee is claiming compensation.'" Reliance Diecasting Co. v. Freeman, 471 S.W.2d 311, 312 (Ky. 1971) (quoting Proctor and Gamble Mfg. Co., 357 S.W.2d 866 (Ky. 1962)). As explained in Granger, 329 S.W.3d at 298 (footnotes omitted):
When read in concert, KRS 342.185 and KRS 342.190 require an injured worker to give written notice of a work-related accident, including certain details regarding the accident and resulting injury, and to do so "as soon as practicable" after the accident occurs. The purpose of the requirement is threefold: 1.) to enable an employer to provide prompt medical treatment in an attempt to minimize the worker's ultimate disability and the employer's liability; 2.) to enable the employer to investigate the circumstances of the accident promptly; and 3.) to prevent the filing of fictitious claims. KRS 342.200 excuses an inaccuracy in complying with KRS 342.190 unless it misleads and injures the employer. It also excuses a delay in giving notice if the employer has actual knowledge of the injury or if the delay results from mistake or other reasonable cause. Although a lack of prejudice to the employer excuses an inaccuracy in complying with KRS 342.190, it does not excuse a delay in giving notice."The nature of the injury is important on the question of notice insofar as it relates to the knowledge of the injured person of the extent of his injury." Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 816 (Ky. 1968). "The courts have found notice of an accident and the resulting harm to be inadequate where the worker's conduct thwarted the purposes of the requirement." Trico Cty. Dev. & Pipeline v. Smith, 289 S.W.3d 538, 542 (Ky. 2008) (footnote omitted).
While it is the ALJ's duty to determine the factual question of when notice was given, whether notice is adequate and given as soon as practicable is a legal question. See Shields v. Pittsburgh & Midway Coal Min. Co., 634 S.W.2d 440, 444 (Ky.App. 1982) (explaining a statement that the employer received due and timely notice of a claim is a legal conclusion, which should rest upon a factual determination as to when notice was given); Bartley v. Bartley, 274 S.W.2d 48, 49 (Ky. 1954) (concluding as a matter of law that notice was timely); Columbus Min. Co. v. Childers, 265 S.W.2d 443, 445 (Ky. 1954) (same). See also Trico Cty. Dev. & Pipeline v. Smith, 289 S.W.3d 538, 543 (Ky. 2008) (notice to insurance carrier eleven days after the accident "must be viewed as being timely.")
Although it is mandatory that notice be given, Kentucky courts liberally construe the protections of the Workers' Compensation Act "in favor of the employee to effectuate [its] . . . beneficent purposes[.]" Marc Blackburn Brick Co., 424 S.W.2d at 816. "[T]he purpose of the notice requirement is not to create a technical barrier to meritorious claims[.]" Smith v. Cardinal Const. Co., 13 S.W.3d 626, 629 (Ky. 2000). See Bates & Rogers Const. Co. v. Allen, 183 Ky. 815, 210 S.W. 467, 473 (1919) (interpreting "as soon as practicable" liberally to allow compensation for a meritorious claimant who "attempts to give the notice very shortly after he learns the nature and extent of his injury[.]")
There are many Kentucky cases where the employer received general notice of an injury, but how that injury affected a specific part of the body or how serious it was, was not discovered until later. In Little, 357 S.W.2d at 868 (Ky. 1962), an employee was involved in an accident while driving a truck, suffered severe bruises and abrasions and was absent from work for two months, but never made a claim for workers compensation. Afterwards, the employee thought he was suffering from stomach trouble, but thirteen months after the accident he died from a dissecting aneurysm attributable to the accident. Id. at 867-68. The employer argued the injury was non-compensable because while it had timely notice of the accident and that the employee had sustained injuries, it did not receive any notice of the particular injury that caused the employee's death. Id. at 867. The Court distinguished cases in which the employee has knowledge of his particular injury and fails to report it, from the situation in which the employee had no knowledge of the serious nature of his injury, explaining in this case it was reasonable under KRS 342.200 for the employee to fail to give adequate notice where he had a "mistaken personal diagnosis and want of better knowledge." Little, 357 S.W.2d at 868. See Reliance Diecasting Co., 471 S.W.2d at 313 (explaining notice of fall from step ladder gave reasonable notice that employee might suffer a back injury and the employer did not require any further notice until the development of the injury into a compensable state was diagnosed); Blue Bird Min. Co. v. Litteral, 314 Ky. 709, 712, 236 S.W.2d 936, 938 (1951) (explaining "[i]t is common knowledge that a severe lick on the head may be followed by serious injury, therefore we hold that when the foreman knew of [the employee] being hit on the head with a lump of coal, he had notice of his injury [later hearing loss].").
Similarly, if an accident appears to be minor, a short delay in reporting it until the injury becomes manifest can be reasonable. "The law does not require the impossible; hence, the Court has determined that a worker was not obliged to give notice of a latent injury until he became aware that a compensable injury has been sustained." Smith, 13 S.W.3d at 627. An injured person may be uncertain as to whether an injury is serious: "He hopes the pain is temporary and will go away. But if it persists, he must act diligently to ascertain his trouble and promptly notify his employer." Marc Blackburn Brick Co., 424 S.W.2d at 816. See Bartley v. Bartley, 274 S.W.2d 48, 49 (Ky. 1954) and Marc Blackburn Brick Co., 424 S.W.2d at 816-17 (Ky. 1968) (holding delays of forty-four and sixty-six days in giving notice of an injury were reasonable where the injuries were reported as soon as practicable once diagnosed).
The ALJ erred in finding that McDowell waited two and one-half months, until December 16, 2014, to report his shoulder injury to Dr. Bonnarens. Dr. Bonnarens's records show that on November 6, 2014, McDowell complained of pain in his shoulder and after an examination Dr. Bonnarens suspected a torn rotator cuff and referred him for an MRI. The ALJ appears to have conflated the date of the MRI, December 16, 2014, with the date that McDowell told Dr. Bonnarens of his shoulder pain. While the Board focused on the fact that McDowell neither read nor signed the initial report of injury as requiring a finding of appropriate notice, we believe the question is whether McDowell waiting about a month after his shoulder injury to give notice of it was as soon as practicable as a matter of law under the circumstances.
When McDowell reported an injury to his elbow, it is undisputed that he either did not know he had injured his shoulder at the time of the accident, or he believed any injury to be minor and not requiring any treatment. Under these circumstances, there was no reason for him to report facts concerning the portion of the accident that he did not believe had resulted in an injury.
There is also no dispute that as McDowell's elbow injury improved, his shoulder pain worsened. McDowell reported this pain to his doctor a month after his injury, resulting in his employer being notified based on the doctor's report. Any delay in notification was attributable to McDowell's previous lack of symptoms. Therefore, the notice a month after the injury when Dr. Bonnarens first suspected a torn rotator cuff was adequate as a matter of law under the circumstances. The delay was reasonable because McDowell had no reason to believe he had injured his shoulder until he began experiencing more serious symptoms.
Ann Taylor argues the ALJ's findings on causation were sufficient to allow for meaningful appellate review. However, Ann Taylor alternatively argues to the extent that the ALJ's findings were insufficient on this issue, the Board should have only remanded for the ALJ to supply additional findings to support its previous ruling, rather than both vacating and remanding.
We agree with the Board that the ALJ did not provide a sufficient explanation of the basis for its decision to enable adequate review. Although the ALJ incorporated his analysis into his findings of fact, the ALJ needed to make specific findings as to why he preferred one set of opinions from Dr. Bonnarens over his other set of opinions and why he rejected Dr. Roberts's opinion as to causation.
Ann Taylor's argument that the Board should have remanded without vacating on the issue of causation is not well-taken. If the Board only remanded, arguably this would make its opinion non-final and non-appealable and, thus, our Court would not have the jurisdiction to review the Board's decision. Similarly, if we were to reverse its opinion and require it to only remand, we would render a final opinion non-final. See Hampton v. Flav-O-Rich Dairies, 489 S.W.3d 230, 234 (Ky. 2016).
When the Board vacated and remanded for the ALJ to make factual findings as to causation, it did not constrain the ALJ from exercising independent judgment as fact-finder. On remand, the ALJ will have to write a new opinion and decide anew. Id. at 234-35; Miller v. Go Hire Employment Dev., Inc., 473 S.W.3d 621, 631-32 (Ky.App. 2015).
Accordingly, we affirm the Board's opinion reversing in part, vacating in part and remanding the ALJ's opinion, award and order regarding the ALJ's denial and dismissal of McDowell's claim as to his right shoulder injury on the basis of inadequate notice and failure to prove causation.
TAYLOR, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: James G. Fogle
Louisville, Kentucky BRIEF FOR APPELLEE: John W. Spies
Louisville, Kentucky