FORD MOTOR COMPANY VS. COMPENSATION CANTU (ANDREA), ET AL.Annotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
FORD MOTOR COMPANY
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-00239
ANDREA CANTU; HON. LAWRENCE
F. SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
AFFIRMING IN PART AND
REMANDING IN PART
** ** ** ** **
BEFORE: CLAYTON AND DIXON, JUDGES; GRAVES,1 SENIOR JUDGE.
CLAYTON, JUDGE: This is an appeal of a workers’ compensation case involving
an employer’s notification obligations under KRS 342.038, KRS 342.040, and the
statute of limitation defense by the employer as stipulated in KRS 342.185.
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
Appellee Andrea Cantu began working at Ford’s truck plant in
Louisville, Kentucky in May of 1998. Ms. Cantu worked the “tack-off job” at
Ford which required her to bend repeatedly as she wiped anywhere from 70-75
trucks per hour over a ten (10) hour shift. On September 3, 1998, Ms. Cantu
developed low back pain and pain in her left thigh. She notified Ford’s medical
department and medical personnel about the pain. Ford’s records reflect that Ms.
Cantu stated that her back pain was a result of her bending and performing on the
tack-off job for the three (3) days prior to notification. Ford’s medical records
indicated that a diagnosis was made, at this time by Dr. Kenneth Farmer, its
physician, and it was for a sprain and strain of the lumbar spine.
Ms. Cantu testified that she told Dr. Farmer the nature of her work
and Ford’s medical records corroborate this. Dr. Farmer described the tack-off job
as one of the jobs in the paint department which would only require the down
wiping of the side of a car. He described the job as being a relatively easy job and
was certainly a job that would not bother a person’s back to any great degree. Dr.
Farmer recommended physical therapy to Ms. Cantu and she was referred to Dr.
David Petruska for her condition.
Ms. Dana Ballinger testified that she was employed by Ford as their
workers’ compensation representative. Ms. Ballinger verified that she handled Ms.
Cantu’s claim and stated that Ford’s records reflected that Ms. Cantu reported a
back injury on September 3, 1998. She stated that while a few medical bills were
paid, no temporary total disability (TTD) benefits were paid because Ms. Cantu
never lost time from work for that injury date. Ms. Ballinger indicated that under
the circumstances of this case she was not required to file any forms with the
Office of Workers’ Claims (OWC) nor did she file any forms for the suspension of
Ms. Cantu underwent physical therapy and received heat medication
and epidurals. She also was moved to the paint department. Ms. Cantu testified
that on January 15, 1999, while she was working in the paint department using an
orbit type sander that vibrated, she developed pain in her hands. Ms. Cantu further
testified that she reported this injury to Ford’s medical department and that she was
given night splints to wear. Ms. Ballinger noted that she did not have a report of
an alleged injury on January 15, 1999, and that no TTD benefits nor medical bills
were paid for this alleged injury.
In May of 1999, Ms. Cantu re-injured her back during physical
therapy. As a result, Dr. Petruska treated her and recommended additional
physical therapy. Ford’s records show that on May 12, 1999, Ms. Cantu was
treated for a sprain and strain of the lumbar spine. Ms. Cantu was seen by Dr.
Farmer and given a Form 5166. She stated that she reported to the medical
department that her renewed back injury was the result of being put back on the
tack-off job. Ms. Cantu testified that she reported to the medical department that
her back started hurting the day before leaving physical therapy. Dr. Farmer
testified that at that time he thought Ms. Cantu’s back injury was a continuation of
her original 1998 back injury. Ms. Ballinger had a record of an alleged injury that
occurred on May 12, 1999. No voluntary payment of TTD benefits was made so
she did not make any filings of IA-1s, IA-2s, S1s or any filings with the OWC in
regard to this injury.
On May 13, 1999, Ms. Cantu was seen again by Dr. Farmer and he
diagnosed once again that she had a sprain and strain of the lumbar spine. On May
18, 1999, Ms. Cantu was treated again at the Ford plant for a sprain and strain of
the lumbar spine and an appointment was made for her to see an orthopedic
surgeon. On May 25, 1999, Ms. Cantu was seen again at the Ford plant medical
Ms. Ballinger confirmed that on May 27, 1999, Ms. Cantu filled out a
Form 113 indicating that Dr. Farmer was to be her designated treating physician.
Ford’s records further indicate that, during this period of time, Ford paid medical
bills to a chiropractor and to Louisville Orthopedic and Health South on behalf of
Ms. Cantu. Ford’s records reflect that on June 7, 1999, the orthopedic surgeon
could not find a problem with Ms. Cantu, and that she wanted to see her private
physician but was advised to see Dr. Farmer instead. Ms. Cantu refused to meet
with Dr. Farmer and was given a “pass out” to leave work for the day.
On June 8, 1999, Dr. Petruska took Ms. Cantu off work due to her
back condition. She continued on this medical leave until January 4, 2000. At this
time, Ms. Cantu’s claim was denied by the OWC, however, she did not receive
notification of the denial. Dr. Farmer stated that he did not feel like Ms. Cantu’s
injuries were work related because Ms. Cantu was in poor physical condition and a
prior car wreck had left her with neck and back troubles. Dr. Farmer did
acknowledge, however, that Mrs. Cantu was off for a sufficient period of time to
entitle her to receive TTD benefits had a determination been made that her injuries
were work related.
Ms. Cantu was put on medical leave with the leave being marked as
“personal” beginning June 8, 1999. Dr. Farmer testified that Ford listed Ms.
Cantu’s leave as “personal.” Ms. Ballinger testified that when a person went on
leave, she was notified by the medical department and/or by the employee that the
person was going out on “occupational” medical leave. If it were recorded as
“occupational” then she would see it, however if it were characterized as
“personal,” she would not. As a result, Mrs. Ballinger did not get a request from
anyone to pay Ms. Cantu TTD benefits for her leave.
Ford’s records reflect that on December 21, 1999, Dr. Farmer
received a Form 1566 from Dr. Ragland and records from Dr. Petruska diagnosing
Ms. Cantu with a herniated disc. These medical records further noted that Ms.
Cantu could return to work on December 22, 1999, with restrictions placed on her
of no lifting over 25 pounds and no repetitive bending or twisting at the waist with
no prolonged standing or sitting. There was also a 7% impairment rating contained
in this report. On January 4, 2000, Ms. Cantu came back to work. Dr. Farmer
testified that records reflected that prior to this time Ms. Cantu was off work for
about six (6) months with a back problem. Dr. Farmer testified that Ms. Cantu’s
back condition started out as being treated as an “occupational” claim but was later
changed to “personal.” Dr. Farmer further testified that contrary to Dr. Petruska’s
findings, Ms. Cantu’s jobs while at Ford would not have caused a significant
amount of degenerative disc disease.
After a hearing, the Administrative Law Judge (ALJ) found that Ms.
Cantu refused Dr. Farmer’s treatment and that she listed her medical leave as
“personal” in June of 1999; thus, Ford was removed from having the obligation to
file a First Report of Injury with the OWC as required by KRS 342.038 and from
the obligation of filing a notice of benefit suspension as required by KRS 342.040.
With this ruling, Ms. Cantu’s claim for back injury would be barred, as provided
under KRS 342.185, since her claim was filed after the two (2) year statutory
period. Ms. Cantu appealed this decision to the Workers’ Compensation Board
(Board) which overturned this judgment by finding that it was Ford that noted Ms.
Cantu’s leave as “personal.” The Board further found that Ford had neglected its
duty to file a first report with the OWC and to file a notice of benefit suspension;
therefore, the statute of limitations was tolled. Ford now appeals the Board’s
STANDARD OF REVIEW
The standard of review for overturning a finding of fact from the ALJ
is “clearly erroneous.” Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
The Kentucky Supreme Court has ruled that “[a] finding which is unreasonable
under the evidence presented is ‘clearly erroneous’ and, perforce, would ‘compel’
a different finding.” Id.
The fact finder, “and not the reviewing court, has the authority to
determine the quality, character and substance of the evidence presented to the
Board.” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418-19 (Ky. 1985). As
correctly noted by the Board , the ALJ may choose whom and what to believe.
Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). Wolf Creek Collieries v.
Crum, 673 S.W.2d 735, 736 (Ky. App. 1984) the Court noted that “[t]he claimant
bears the burden of proof and risk of persuasion” before the initial court. “[I]f the
claimant is unsuccessful before the [initial court], and he himself appeals to the
[appellate court], the question before the [appellate] [c]ourt is whether the evidence
was so overwhelming, upon consideration of the entire record, as to have
compelled a finding in his favor.” Id. With this standard in mind, we will review
the Board’s decision.
“KRS 342.038 requires an employer to notify the Workers’
Compensation Board …of a work-related injury. KRS 342.040 requires the
employer to notify the Board of the employer's termination of compensation
payments or of the failure to make payments when due. KRS 342.040 also places
a duty upon the Board to then notify an employee of his or her right to prosecute a
claim.” Newberg v. Hudson, 838 S.W.2d 384-85 (Ky. 1992). In the event that an
employer does not comply with these provisions, the employer may be precluded
from raising the two (2) year statute of limitation defense found in KRS 342.185
[N]o 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 and unless
an application for adjustment of claim for compensation
with respect to the injury shall have been made with the
office within two (2) years after the date of the
There is nothing in the record that indicates that Ms. Cantu listed her
medical leave as “personal.” In fact, the record clearly indicates that it was Ford
who marked Ms. Cantu’s leave as “personal.” As set forth above, Ms. Ballinger,
indicated in her testimony that when a person went on leave, she would be notified
by the medical department and/or by the employee that the person was going on
“occupational” medical leave. Dr. Farmer stated in his deposition that when he
saw Ms. Cantu on May 12, 1999, he considered Ms. Cantu’s low back pain to be a
continuation of Ms. Cantu’s previous low back complaints and not a new injury.
When Dr. Farmer was deposed on June 5 , 2006, he was specifically asked, “So
you-all made the decision to put [the notation] personal versus workers’ comp?”
(Deposition June 5, 2006 p. 592). Dr. Farmer replied in the affirmative. Id.
On May 13, 1999, less than a month before Ms. Cantu went on leave,
Dr. Farmer diagnosed her with a sprain and strain of the lumbar spine. On June 7,
1999, Ms. Cantu decided to see her private physician, which is permissible by KRS
342.020. At this point, Dr. Farmer stated that based on his assumption that the
tack-off job was relatively minor, the fact that Ms. Cantu was in poor physical
condition, and the fact that she had been involved in a car wreck with neck and
back troubles prior to notification of her injuries, he attributed the low back
problems to be non work-related. From the testimony of Dr. Farmer, it is implicit
that he decided to make a contradictory diagnosis of Ms. Cantu once she decided to
seek private care.
We find that the ALJ’s finding of fact which stipulated that Ms. Cantu
listed her leave as “personal” was clearly erroneous. Since there was not any
evidence proffered to indicate that Ms. Cantu listed her leave as “personal,” but
there was sufficient evidence to the contrary that Dr. Farmer or someone from
Ford’s personnel listed the leave as “personal,” the Board’s decision to reverse the
ALJ on this issue was not erroneous.
Next, Ford asserts that it was unaware of Ms. Cantu’s leave as a work
related injury because she did not go back to see Dr. Farmer as advised and her
leave was marked “personal;” thus, they were relieved of their duty to file an
acceptance or denial form with the OWC. Ford relies on Newberg, supra, to
support its assertion.
In Newberg, the employer gave the employee a form to fill out. The
employee failed to specify on the forms provided by the employer that his injury
was work-related. Id. As a result, the employer did not comply with KRS 342.038
because it did not have adequate notice that the claimant was going on leave for a
work related injury. The court ruled that the employer could use the statute of
limitations defense. The Newberg court noted that “where there is no evidence that
the employer's noncompliance with the notice provisions was in bad faith and there
is evidence of a good-faith attempt to ascertain the reason behind an employee's
absence from work,” equitable estoppel will not be applied. Id.
In this case, Ms. Cantu had followed the policies of Ford. She had
undergone physical therapy under Ford’s direction for over a year. Ms. Cantu had
met with Dr. Farmer at least three (3) times before she decided to see her private
physician. It is stipulated in the record that when Ms. Cantu was seen by Ford’s
orthopedic surgeon on June 7, 1999, and he could not find a problem with her
back, she was “advised” to seek further treatment from Dr. Farmer, Ford’s
physician. Ms. Cantu then decided to seek the opinion of her private physician
which, as set forth above, was within her rights pursuant to KRS 342.020.
Once Ford decided that it was not going to make payments for Ms.
Cantu’s back injury, it had a duty to notify the commissioner pursuant to KRS
342.040(1). While Ford asserts that it was “innocently unaware” of Ms. Cantu’s
leave as a work related injury, there is no record of Ford attempting to ascertain the
reason behind Ms. Cantu’s absence from work. With Ms. Cantu’s history of
checkups and physical therapy with Ford medical personnel for over a year, it is
unreasonable to find that Ford was innocently unaware of her injury being workrelated.
In Newberg, the court noted that an employer will not be equitably
estopped from asserting a statute of limitations defense when it refrains from
acting in bad faith and when “there is evidence of a good-faith attempt to ascertain
the reason behind an employee's absence from work[.]” Id. In this case, there has
not been any evidence or testimony presented to indicate that Ford made a good
faith effort to determine the reasoning behind Ms. Cantu’s absence.
Kentucky’s Supreme Court has noted that “fairness dictates that the
employer's noncompliance will preclude its reliance upon the statute of limitations
so that the protection that is intended to benefit the employee is not thwarted by the
employer for the employer's own benefit.” Id at 388. Since Ford did not comply
with the statute or make a good faith effort to ascertain the reason behind Ms.
Cantu’s absence from work, it is barred from asserting a statute of limitations
defense on this injury.
Ford’s next issue on appeal is that the Board went outside its scope of
review to decide on the issue of causation of Ms. Cantu’s lower back injury. From
a review of the Board’s opinion, it is apparent that the appellant misconstrued the
interpretation of the opinion by the Board. The Board reversed and remanded the
issue of Ms. Cantu’s 1998 work-related back injury as being barred by the statute
of limitations “to the ALJ for consideration of an award of TTD, PPD and medical
benefits arising from the low back injury.” (R. 33). The Board did not make a
finding of fact on this issue, but simply remanded this issue to be “considered” by
the ALJ, since the ALJ did not make any findings of fact initially on this issue.
The Board’s ruling on this issue is affirmed.
Ford’s third issue on appeal is that any entitlement to TTD for the
carpel tunnel injury of Ms. Cantu must be limited to the dates of June 8, 2000,
through July 20, 2000. We shall not delve into this issue because it is not ripe for
review. There have not been any factual findings made regarding the appropriate
period of TTD. The Board correctly remanded this issue back to the ALJ for their
determination on those facts. “The ALJ, as the finder of fact, and not the reviewing
court, has the sole authority to determine the quality, character, and substance of
the evidence.” Square D Co. v. Tipton, 862 S.W.2d 308-09 (Ky. 1993). Since the
evidence about Ms. Cantu’s carpel tunnel has not been evaluated by the ALJ, it
cannot be reviewed at this time.
For the above stated reasons, we affirm the decision of the Board and
this order is remanded to the ALJ for actions consistent with this opinion.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Wesley G. Gatlin
Christopher P. Evensen