               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED?'
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
 BEFORE THECOURT. OPINIONS CITED FOR CONSIDERATION
 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISION IN THE FILED DOCUMENT AND A COPY OF THE
                                          .




 ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
 DOCUMENT TO THE COURT AND ALL PARTIES TO THE
 ACTION.
                                             RENDERED: DECEMBER 17, 2015
                                                    NOT TO BE PUBLISHED

               ,Suprrun Court ofIT,fipPArk
                              2015-SC-000135-WC


FRESENIUS MEDICAL CARE HOLDINGS                                       APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-001006-WC
                  WORKERS' COMPENSATION NO. 11-88476



GENEVIEVE NOBLE;
HONORABLE JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                           APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Fresenius Medical Care Holdings, appeals a Court of Appeals

decision which affirmed a Workers' Compensation Board ("Board") opinion that

vacated and remanded the dismissal of one of Genevieve Noble's claims for

workers' compensation. Fresenius argues that the Board erred by vacating the

dismissal of Noble's cumulative injury claim, which she stated occurred on

March 8, 2010, because she did not give due and timely notice of the incident.

For the below stated reasons, we affirm the Court of Appeals.

      Noble began her employment with Fresenius in February 2004 as a

dialysis nurse. Her job involved traveling to different medical facilities where

she administered dialysis treatment to patients. Her job duties required her to
lift 40 to 50 pounds, push a 300 pound dialysis machine on rollers, and

manually manipulate patients.

      Noble testified in a deposition that she began to have lumbar pain in

2008. She told her current physician, Dr. Thomas Schurfranz, about her pain.

Noble did not remember discussing with Dr. Schurfranz the cause of the back

pain and stated that he did not provide an opinion as to the cause of her pain.

However, Dr. Schurfranz's notes from 2010 stated that Noble's lumbar

symptoms were worsened by her work as a dialysis nurse and that Noble told

him that her lumbar pain increased as a consequence of "pulling up a patient."

Dr. Schurfranz also provided Noble a light duty excuse on March 11, 2010, in

which she was to refrain from lifting in excess of ten pounds or standing for

more than thirty minutes at a time for six weeks. Noble testified that the first

time she was informed by a physician that her lumbar pain was work-related

was sometime in September or October 2011.

      Noble filed a Form 101 on December 27, 2011, alleging that she suffered

"work-related cumulative trauma for which she was referred to Dr. Elmer

Dunbar on March 8, 2010." She also alleged work-related injuries occurred on

April 26, 2011 and August 9, 2011. Noble admitted that she did not inform

Fresenius of her potential March 8, 2010 injury until either February or March

2011. At that time, Noble inquired of Fresenius how to file a workers'

compensation claim. Fresenius challenged Noble's March 8, 2010 claim on the

grounds that since it took her a year to inform it of the potential work-related

cumulative trauma injury she did not provide due and timely notice.



                                        2
       After a review of the evidence, the Al..J made the following findings

regarding the notice provided for the March 8, 2010 claim:

       15. No proceeding 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 342.185.
       16. An employee has the burden of proof and the risk of non-
      persuasion to convince the trier of fact of every element of his
      workers' compensation claim. Snawder v. Stice, 576 S.W.2d 276
      (Ky. App. 1979).
       17. [Noble] testified that she asked her supervisor how to go about
      filing a workers' compensation claim if she did not have a specific
      injury. This is the only indication of the giving of notice on the
      part of [Noble] for this particular injury and it took place
      approximately one year after the injury date according to [Noble].
      The ALJ finds that this does not constitute the giving of notice to
      the employer as soon as practicable after the happening of the
      injury.
      18. The ALJ therefore concludes based upon the evidence
      available, that [Noble] has failed to establish that notice was
      properly given with regard to the March 8, 2010 injury.
      19. [Fresenius] is relieved from liability of the contested expenses
      regarding the March 8, 2010, injury.

The ALJ did award Noble temporary total disability benefits and permanent

partial disability benefits for the August 9, 2011 claim. The ALJ also awarded

Noble medical expenses for the April 26, 2011 and the August 9, 2011 injuries.

      Noble filed a petition for reconsideration challenging the ALJ's dismissal

of her March 8, 2010 cumulative trauma injury claim. She argued that no

physician informed her prior to when she approached Fresenius in February or

March 2011 that her lumbar injury was potentially related to her employment.

Thus, Noble argues she was not even required to provide notice at that time.

Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). The ALJ denied Noble's

petition for reconsideration. Noble appealed to the Board.



                                        3
      The Board vacated in part and remanded the matter to the ALJ for

further fact finding. The Board held:

      [W]e believe the matter must be remanded to the ALJ for additional
      findings. The ALJ failed to make a specific finding as to whether
      Noble sustained a cumulative trauma injury. Thus, the ALJ must
      first determine whether Noble sustained a work-related cumulative
      trauma injury prior to resolving the issue of due and timely notice
      of the work injury. The findings of fact and conclusions of law
      contained in the numerical paragraphs 17, 18, and 19 as set out
      herein are insufficient and do not adequately address the issue of
      whether Noble sustained a cumulative trauma injury and the law
      concerning the obligation to provide notice of a cumulative trauma
      injury. On remand, should the ALJ determine a cumulative
      trauma injury occurred, he must also make a finding as to the date
      of manifestation of the cumulative trauma injury. After
      determining the date of manifestation, the ALJ must then decide
      whether notice was timely.

Fresenius appealed to the Court of Appeals which affirmed the Board. This

appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of 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. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole




                                        4
discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).

      KRS 342.185(1) requires a claimant to give notice of an injury to the

employer "as soon as practicable after the happening thereof." A cumulative

trauma injury is a "gradual, work-related injury as opposed to a single

traumatic event." Manalapan Mining Company, Inc. v. Lunsford, 204 S.W.3d

601, 604 (Ky. 2006). With a cumulative trauma injury, the claimant must give

notice of the injury by the date of manifestation thereof.   Special Fund v. Clark,

998 S.W.2d 487 (Ky. 1999). The date of manifestation of a cumulative trauma

injury generally occurs when a physician informs the claimant that she has

sustained a cumulative work-related injury. Hill, 65 S.W.3d 503.

      Fresenius argues in its appeal that there was sufficient circumstantial

evidence to support the ALJ's conclusion that Noble did not provide adequate

notice for her March 8, 2010 claim for a work-related cumulative trauma

injury. Fresenius notes that the records of Dr. Schurfranz from 2010 indicate

he believed that Noble's lumbar pain was being caused by her employment as a

dialysis nurse. Thus, it contends that it is highly unlikely that he did not

mention to Noble that her employment was causing her lumbar pain prior to

March 2011. Fresenius also notes that Noble asked how to file a workers'

compensation claim in February or March 2011, but claims that she was not

informed by a physician that her lumbar problem was work-related until

September or October 2011. Fresenius contends that this timeline discrepancy




                                         5
indicates one of her doctors informed her of the presence of a work-related

injury before February or March 2011.

       The. ALJ's findings on the alleged March 8, 2010 cumulative trauma

injury are inadequate. Because Noble alleged a cumulative trauma injury, the

ALJ should have first determined if she suffered such an injury. If such an

injury occurred, then the ALJ should have determined the date of

manifestation for that injury, usually the date she was informed by a physician

that the injury is work-related. After determining the date of manifestation,

the ALJ then can analyze if notice was timely provided. Thus, because the ALJ

did not perform a proper cumulative trauma injury analysis, we must agree

with the Board. We note that on remand the ALJ is free to make any finding

regarding Noble's cumulative trauma injury claim that is supported by the

record.

      Thus, for the above stated reasons, we affirm the decision of the Court of

Appeals.

      Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. All concur. Wright, J., not sitting.




                                         6
COUNSEL FOR APPELLANT,
FRESENIUS MEDICAL CARE HOLDINGS:

Frederick Allon Bailey
Patrick Joseph Murphy, II


COUNSEL FOR APPELLEE,
GENEVIEVE NOBLE:

Stephanie Nicole Wolfinbarger




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