DREMA CRUM v. SEALMASTER BEARING; HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JULY 18, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-002469-WC
DREMA CRUM
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-01094
SEALMASTER BEARING1; HON. ROGER
D. RIGGS, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BUCKINGHAM, McANULTY, AND PAISLEY, JUDGES.
McANULTY, JUDGE.
Drema Crum petitions for review of an opinion
of the Workers’ Compensation Board that affirmed the decision of
the Administrative Law Judge (ALJ) dismissing her claim for
failure to give sufficient notice of a work-related injury to
her employer, Sealmaster Bearings.
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We affirm.
Appellant’s petition for review erroneously refers to her employer’s name in
the singular, rather than the plural, form. The correct name is Sealmaster
Bearings.
Drema Crum, who was born in 1959, has an eighth grade
education and a GED with a work history as a seamstress and
restaurant cook/waitress.
In January 1994, she became employed
by Sealmaster Bearings as an assembly-line worker.
On July 27,
1999, while working as an equipment set-up operator, Crum felt a
severe pain in her back when she was placed in an awkward
position reaching around the back of a machine to press two
buttons with her hands while balancing on her right leg.
One of
her co-workers gave her some pain medication but because it was
near the end of her shift, Crum did not immediately report the
incident.
The next morning Crum was still experiencing severe
back pain, so she went to her family physician, Dr. Donald
Blair, who ordered an MRI.
Earlier that same morning, Crum
telephoned Sealmaster and told her supervisor, Dan Ackerman,
that she was not able to come to work because she had hurt her
back the day before.
On August 3, 1999, Crum signed a leave of
absence request form indicating the request was for personal
illness or injury.
After reviewing the MRI, Dr. Blair referred
Crum to Dr. Henry Tutt, a neurosurgeon.
On September 9, 1999, Dr. Tutt examined Crum and
recommended conservative treatment with physical therapy in part
because while the MRI indicated disk protrusion at the L4-L5
level of the lumbar spine, the quality of the film was poor.
After Crum did not respond to the conservative treatment, Dr.
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Tutt performed a left L4-L5 discectomy with decompression of the
cauda equina on October 11, 1999.
Following the surgery, Crum
continued to complain of back and left leg pain.
A subsequent
MRI indicated no new herniation or disk protrusion and Dr. Tutt
was unable to determine a cause for Crum’s complaints.
He
opined that Crum had reached maximum medical improvement, could
return to work, and released her back to Dr. Blair.
Dr. Blair then referred Crum to Dr. Aleksander
Mogilevski, a neurosurgeon.
Dr. Mogilevski treated her with
several epidural steroid injections and oral prednisone between
March and May 2000, which provided only temporary relief.
In
September 2000, Crum began treatment with Dr. Richard Donnini,
an osteopath and pain management specialist, who has placed her
on a regiment of physical therapy, pain medication, and periodic
epidural injections.
Crum has not returned to any type of work
since the July 1999 incident and was eventually terminated from
her employment with Sealmaster.
On July 27, 2001, Crum filed an Application for
Resolution of Injury Claim seeking workers’ compensation
benefits related to her July 27, 1999, injury.
Sealmaster
denied the claim based on lack of notice and causation, and
statute of limitations.
Crum filed a Form 107 medical report
prepared by Dr. Donnini in which he diagnosed her as suffering
from lumbar radiculopathy and post laminectomy syndrome of the
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lumbar.
He opined that the July 1999 incident caused her
complaints and he assessed a permanent 29% functional impairment
rating under the American Medical Association Guides to
Evaluation of Permanent Impairment.
In January 2002, Dan Ackerman and Kevin Carpenter,
Sealmaster’s human resource manager, were deposed.
Ackerman
testified that Crum telephoned him on July 28, 1999, and said
she could not come to work because she was having severe back
problems.
He said that he did not inquire further and would
have had her fill out an accident report if she had indicated
she had a work-related injury.
Ackerman also stated that Crum’s
description of how she injured herself was not consistent with
the characteristics of the machinery at the plant.
Carpenter
testified that the company had posted notices throughout the
plant telling employees to report all injuries, and that Crum
had filled out work-related injury reports involving two other
incidents in July 1998 and May 1999.
He stated Crum had signed
a personal injury leave of absence form for the July 27, 1999
incident, and had received benefits under the company’s sickness
and accident coverage, which included a total of $11,400 for
salary compensation representing 50% of her normal salary and
payment of her medical expenses.
On January 2, 2002, Dr. Gregory Snider, an
occupational medicine specialist, evaluated Crum at Sealmaster’s
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request.
In his report, Dr. Snider noted the absence of
documentation in the medical records, other than Dr. Donnini’s
report, attributing Crum’s injury to a work-related incident,
and referred to records indicating she had been treated for back
pain in 1997 and April 1999.
He diagnosed her status as post
L4-L5 discectomy with chronic low back pain and assessed a 13%
permanent functional impairment rating, but indicated Crum could
return to work with some restrictions.
Following a hearing at which Crum testified, the ALJ
issued an opinion dismissing her claim for lack of reasonable
notice to her employer of a work-related injury.
He stated:
The plaintiff is required to prove each and
every allegation of her claim.
Unfortunately for the plaintiff, the entire
record strongly supports the conclusion that
the plaintiff did not give reasonable notice
of a work-related injury of July 29, 1999
[sic]. The records of Cave Run Clinic
indicated Ms. Crum has suffered from chronic
low back problems for several years. Ms.
Crum, herself, has testified that she did
not tell her supervisor specifically that
she suffered an injury at work. Her
supervisor has testified specifically that
she did not report a work-related injury.
Records from the employer indicate that Ms.
Crum was aware of the requirement of filing
a notice of a work injury as she had done so
in the past, the latest occasion being two
months prior to the alleged work injury
herein. An application for sickness and
accident benefits for a nonwork-related
injury was signed by Ms. Crum indicating
that her ailments and complaints were not
work-related. The only treating physician
whose evidence has been presented herein,
Dr. Henry Tutt, indicated that Ms. Crum did
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not report a work injury but had reported
long term, chronic low back problems. This
overwhelming evidence leads to the
conclusion that the plaintiff has failed to
give reasonable notice of a work-related
injury of July 27, 1999.
Crum’s subsequent petition for reconsideration was summarily
denied.
On November 6, 2000, the Workers’ Compensation Board
affirmed the ALJ’s opinion and Crum petitioned for review by
this Court.
Crum challenges the ALJ’s determination that she did
not provide sufficient notice to support her claim.
Under KRS
342.185(1), no proceeding for workers’ compensation for an
injury 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 the
notice to include “the time, place of occurrence, nature and
cause of the accident . . . and the work or employment in which
the employee was at the time engaged . . . .”
KRS 342.200
further states, “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 purposes
of the notice requirement are threefold: (1) to provide prompt
medical treatment in an attempt to minimize the worker’s
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ultimate disability and the employer’s liability; (2) to enable
the employer to make a prompt investigation of the circumstances
of the accident; and (3) to prevent the filing of fictitious
claims because of the lapse of time.
Smith v. Cardinal Const.
Co., Ky., 13 S.W.3d 623, 627 (2000); Harlan Fuel Co. v.
Burkhart, Ky., 296 S.W.2d 722, 723 (1956).
The employee bears the burden of proof on the notice
requirement as an initial matter, as well as any claim of
justifiable delay.
See, e.g., Newberg v. Slone, Ky., 846 S.W.2d
694 (1992); Special Fund v. Francis, Ky., 708 S.W.2d 641, 643
(1986); Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644, 134
S.W.2d 221 (1939).
Mere lack of prejudice to an employer alone
is not sufficient to excuse a delay in providing notice.
See
Blue Diamond Coal Co. v. Stepp, Ky., 445 S.W.2d 866 (1969).
Whether a claimant gave timely and adequate notice is ultimately
a legal question, but the notice issue also involves factual
findings making it a mixed question of law and fact.
See, e.g.,
Harry M. Stevens Co. v. Workmen’s Compensation Board, Ky. App.,
553 S.W.2d 852 (1977); Blackburn v. Lost Creek Mining, Ky., 31
S.W.3d 921, 925 (2000).
As the fact-finder, an ALJ’s findings
on factual issues are conclusive if supported by substantial
evidence, but when legal questions or mixed questions of law and
fact are involved, the reviewing court has greater latitude to
determine whether the decision below is supported by evidence of
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probative value.
Purchase Transportation Services v. Estate of
Wilson, Ky., 39 S.W.3d 816, 817-18 (2001); Uninsured Employers’
Fund v. Garland, Ky., 805 S.W.2d 116, 117 (1991).
Where an
ALJ’s decision is adverse to a party with the burden of proof,
his factual findings are erroneous as a matter of law and may be
disturbed on appeal only if they are so unreasonable under the
evidence that a contrary finding is compelled.
See Special Fund
v. Francis, 708 S.W.2d at 643; Purchase Transportation Services,
39 S.W.3d at 817.
In the current case, most of the facts are undisputed.
The first time that Crum explicitly told Sealmaster that she was
seeking workers’ compensation benefits for her July 1999 injury
was when she filed her application in July 2001.
Prior to that
time, she requested and received benefits under the employer’s
sickness and accident insurance policy.
In support of her
position, Crum relies on her telephone conversation with her
supervisor, Dan Ackerman, the morning after the July 1999
incident.
In that conversation, Crum told Ackerman that she was
in severe pain from a back injury she sustained “yesterday.”
Crum vehemently argues this information was sufficient to place
Sealmaster on notice that she had sustained a compensable workrelated injury and that Sealmaster had a duty to make further
inquiries and investigate the circumstances of her injury.
Crum
asserts that Sealmaster stuck its head in the sand, took a “hear
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no evil, see no evil” approach, and ignored her attempt at
notice.
Crum’s argument, however, is contrary to the statutory
dictates, which require the claimant to provide information on
the time, place, nature, and cause of the accident resulting in
a work-related injury.
Crum’s attempt to shift the burden to
Sealmaster to investigate the circumstances of her injury when
she gave no indication it was work-related other than it
occurred at some unspecified time on a workday is not supported
by the law.
The cases she cites are distinguishable because in
those cases the employer either had actual knowledge that the
injury occurred at work or was specifically informed of that
fact, or there was a reasonable excuse for a delay in notice.
While case law establishes that the notice statutes should be
liberally construed, “liberal construction does not mean total
disregard for the statute, or repeal of it under the guise of
construction.”
Whittle v. General Mills, Inc., Ky., 252 S.W.2d
55, 57 (1952)(quoting Buckles v. Kroger Grocery & Baking Co.,
280 Ky. 644, 134 S.W.2d 221, 223 (1939)).
Crum contends that she made a good faith effort to
notify Sealmaster as soon as practicable and Sealmaster was not
misled by any inaccuracy in the notice.
The record indicates
that Crum did not identify her injury as work-related to her
treating physicians (prior to Dr. Donnini) and signed several
documents related to receipt of benefits and requests for leave
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attributing her disability to a personal injury.
The company
had notices prominently displayed at the workplace encouraging
employees to report any work-related accidents or injuries.
Crum was aware of this policy and had reported and filled out
forms associated with two prior incidents, one of which occurred
only two months before the July 1999 incident.
We hold that Crum did not provide sufficient notice to
satisfy the statutory requirements.
are supported by substantial evidence.
The ALJ’s factual findings
His legal conclusion
that Crum did not give due and timely notice or provide a
reasonable excuse for failure to do so is supported by evidence
of probative value and is not unreasonable.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert W. Miller
Grayson, Kentucky
Ronald J. Pohl
Picklesimer, Pohl & Kiser,
P.S.C.
Lexington, Kentucky
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