ERSULINE WEATHERS v. TOWN & COUNTRY FORD; W. BRUCE COWDEN, ADMINISTRATIVE LAW JUDGE; 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NOT TO BE PUBLISHED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-002641-WC
ERSULINE WEATHERS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 00-WC-00514
v.
TOWN & COUNTRY FORD;
W. BRUCE COWDEN, ADMINISTRATIVE
LAW JUDGE; WORKERS’ COMPENSATION
BOARD
OPINION
AFFIRMING
APPELLEES
** ** ** ** ** ** ** **
BEFORE:
JOHNSON, SCHRODER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Ersuline Weathers (Weathers) petitions for
review from an opinion of the Workers’ Compensation Board
(Board) which affirmed an opinion and order of the
Administrative Law Judge (ALJ) dismissing Weathers’ application
for workers’ compensation benefits on the basis that the
application failed to comply with the two-year statute of
limitations period as prescribed by Kentucky Revised Statutes
(KRS) 342.185.
Because the application was filed outside of the
two-year limitations period and there were no circumstances
which would have tolled the running of the statute of
limitations, we affirm.
Weathers began working as a salesman for Town &
Country Ford (Town & Country) in 1990.
On Sunday, April 26,
1998, Weathers attended church with his brother, Sidney Weathers
(Sidney).
Weathers drove a Ford Taurus demo car supplied by
Town & Country.
Sidney had previously purchased vehicles from
Town & Country and was interested in buying a car for his wife.
As a result, it was decided that Sidney, who lived directly
across the street from Weathers, would drive the Taurus home
from the church services for the purpose of test-driving the
vehicle.
With Sidney at the wheel, as the Taurus was stopped at
an intersection, it was struck from behind by a third party.
Weathers did not experience any pain at the time of the
accident, and went to work the following day at which time he
informed Town & Country of the accident.
Weathers acknowledges
that he did not inform Town and Country that he was injured in
the accident at this time.
Weathers testified that he began to
feel stiff but continued to work throughout the week.
It was
not until the following Saturday that he felt pain and weakness
in his back legs.
Weathers stated that the next Monday his legs
collapsed and that it was at that time he first sought medical
2
treatment.
Weathers alleges that when he first began to
experience pain he informed Town & Country that the pain was
related to the accident and that he was going to seek medical
attention.
Weathers eventually underwent a number of surgical
procedures.
Weathers’ private insurance carrier paid all of his
medical expenses.
Weathers signed up for and was awarded Social
Security disability benefits, and also received short-term and
long-term disability benefits through Town & Country from a
private disability insurance policy.
On April 28, 2000, Weathers filed an application for
workers’ compensation benefits.
on October 23, 2001.
A hearing on the claim was held
With regard to the hearing, of particular
significance is a hearing exhibit of Weathers’ application to a
private insurance carrier for short-term disability benefits
which was completed shortly after the accident.
Two sections of
the application indicate that the cause of the disability is
“illness,” and in another section the application indicates that
Weathers is not receiving or eligible for workers’ compensation
benefits.
On May 17, 2002, the ALJ issued an opinion and order
dismissing the application on the basis that the application for
benefits was not filed within the two-year statute of
limitations period as provided by Kentucky Revised Statute (KRS)
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342.185.
Weathers then appealed to the Board.
On November 27,
2002, the Board entered an order affirming the ALJ’s dismissal
of the application.
This petition for review followed.
The limitations period statute, KRS 342.185(1),
provides, in relevant part, as follows:
[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 department within two (2) years
after the date of the accident, or in case
of death, within two (2) years after the
death, whether or not a claim has been made
by the employee himself for compensation.
The notice and the claim may be given or
made by any person claiming to be entitled
to compensation or by someone in his behalf.
If payments of income benefits have been
made, the filing of an application for
adjustment of claim with the department
within the period shall not be required, but
shall become requisite within two (2) years
following the suspension of payments or
within two (2) years of the date of the
accident, whichever is later. (Emphasis
added).
On appeal, Weathers acknowledges that he did not file
his application for benefits within the two-year limitations
period.
However, citing to Galownia v. Starlink Satellites,
Case No. 2001-CA-002686-WC, an Opinion rendered by this Court on
August 2, 2002, and designated to be published, Weathers
contends that the limitations period was tolled on the basis
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that Town & Country did not comply with KRS 342.038(1) and/or
KRS 342.040(1).
We note that while the Galownia Opinion was
designated to be published, the case is currently pending before
the Supreme Court, and, as the August 2, 2002, Opinion is not
final, it was improper for Weathers to cite Galownia as
controlling authority.
Kohler v. Transportation Cabinet, Ky.
App., 944 S.W.2d 146, 147 (1997).
In light of this we will
construe Weathers’ argument as limited to the contention that
the statute of limitations was tolled because Town & Country
failed to comply with KRS 342.038(1) and KRS 342.040(1).
The first statute relied upon by Weathers, KRS
342.038(1) provides, in relevant part, as follows:
(1) Every employer subject to this chapter
shall keep a record of all injuries, fatal
or otherwise, received by his employees in
the course of their employment. Within one
(1) week after the occurrence and knowledge,
as provided in KRS 342.185 to 342.200,1 of an
injury to an employee causing his absence
from work for more than one (1) day, a
report thereof shall be made to the
department in the manner directed by the
commissioner through administrative
regulations.... (Emphasis added.)
1
KRS 342.185 to KRS 342.200, among other things, requires an employee to give
notice of an accident as soon as practicable after the happening thereof (KRS
342.185); requires an employee to give notice of an accident and workers’
compensation claim in writing (KRS 342.190); and provides that failure to
give notice or delay in giving notice shall not be a bar to a claim if it is
shown that the employer had knowledge of the injury or that the delay or
failure to give notice was occasioned by mistake or other reasonable cause
(KRS 342.200).
5
The second statute relied upon by Weathers, KRS
342.040(1), provides in relevant part, as follows:
(1) . . . If the employer's insurance
carrier or other party responsible for the
payment of workers' compensation benefits
should terminate or fail to make payments
when due, that party shall notify the
commissioner of the termination or failure
to make payments and the commissioner shall,
in writing, advise the employee or known
dependent of right to prosecute a claim
under this chapter. (Emphasis added.)
Several cases have considered the issue of whether the
statue of limitations is tolled if the employer fails to comply
with the reporting requirements contained in KRS 342.038(1) and
KRS 342.040(1).
As a preliminary matter we will briefly review
those.
In City of Frankfort v. Rogers, Ky. App., 765 S.W.2d
579 (1988), the employer failed to comply with the provision of
KRS 342.040(1) which requires the employer to notify the Board
if it stops making voluntary payments to an injured worker,
thereby preventing the Board from fulfilling its obligation of
notifying the worker of his right to prosecute a workers’
compensation claim against the employer.
The decision held that
an employer cannot blatantly disregard its statutory obligation
under KRS 342.040 and thereby manufacture the defense of
limitations under KRS 342.185.
6
In Newberg v. Hudson, Ky., 838 S.W.2d 384 (1992), the
case primarily relied upon by the ALJ, the employee suffered a
work-related injury on October 28, 1985, but did not miss his
first day of work as a result of the injury until November 19,
1985, and did not miss more than one day of work until December
1985.
After the claimant began missing work, the employer’s
personnel coordinator gave the claimant a form to complete for
weekly sickness payments under company policy.
The form
requested that the employee indicate whether a work-related
accident caused the work absence and, if so, requested a
description of the accident.
spaces blank.
The employee left the applicable
The claimant did not file his claim for benefits
until November 23, 1987.
The Supreme Court held 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 by the employer to ascertain the reason
behind an employee’s absence from work, then the statute of
limitations is not tolled.
In Ingersoll-Rand Co. v. Whittaker, Ky. App., 883
S.W.2d 514 (1994), there was a copy of a form in the employer's
file which, arguably, indicated that the employer had intended
to notify the Board of its termination of voluntary payments;
however, the notification was, inexplicably, never sent to the
Board as required by KRS 342.040(1).
7
The employer argued that
because it did not manufacture the limitations defense and did
not blatantly disregard its statutory obligation to notify the
Board, it should not be denied the defense.
The Court disagreed
and held that, regardless of proof of employer misconduct, an
employer's unexplained failure to file a notification with the
Board precludes the employer from asserting a limitations
defense.
The court reasoned that notification is an affirmative
duty on the part of the employer, and that it would be
unreasonable to expect the injured worker to bear the
consequences of such error since it was in no way his fault that
the notification requirement was not met.
In Colt Management Co. v. Carter, Ky. App., 907 S.W.2d
169 (1995), the employer was not allowed to plead a statute of
limitations defense after having failed to notify the Board
pursuant to KRS 342.040(1) that it had stopped paying voluntary
income benefits, and the Board did not know to advise the worker
of his rights.
In addition, the decision distinguished Newberg
v. Hudson, supra, and expressly rejected the employer's argument
that it was not barred from asserting a limitations defense
since there was no proof that it acted in bad faith.
The
decision held that it is not necessary that it be established
that the employer acted in bad faith for the employer to be
precluded from raising a statute of limitations defense, as it
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must merely be shown that such failure could not be attributed
to the worker.
In H. E. Neumann Company v. Lee, Ky., 975 S.W.2d 917
(1998), the claimant alleged that he suffered a work-related
heart attack as a result of becoming overcome by fumes while
using a cleaning solution.
After being released from the
hospital having undergone quadruple bypass surgery, the employee
testified that he called the employer’s office to see why his
medical bills were not being paid and was informed that he had
to fill out a workers’ compensation form.
The employee filled
out a form stating that the basis of his claim was work-related
and that he had missed fifty days of work at the time the form
was sent to his employer.
its insurance carrier.
The employer then sent the form to
The claimant received no response from
the employer and the employer failed to submit the first report
of injury with the Board as required by KRS 342.038(1) and also
failed to notify the Board as required by KRS 342.040(1) that it
would not pay benefits in response to the claimant’s
notification of a work-related disability.
The Supreme Court
held that unlike the situation in Newberg v. Hudson, supra, the
record reflected that the claimant missed more than seven (7)
days work immediately after the occurrence of the alleged injury
and that the claimant notified the employer of his injury and
his belief that it was work-related.
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The Supreme Court noted
that at that point the employer was under a duty to notify the
Board pursuant to KRS 342.038(1) and KRS 342.040(1).
The
Supreme Court noted that the failure of the employer to satisfy
the statutory notification requirement acted to toll the statute
of limitations by estopping the employer from prevailing on the
statute of limitations defense inasmuch as the claimant was
never notified by the Board regarding his rights and the time
frame in which he must act.
Finally, in J & V Coal Co. v. Hall, 62 S.W.3d 392
(2001), the employee was injured in April 1997 and filed his
claim in May 1999.
Following the accident the employee informed
his shift supervisor about the accident but continued working in
pain for approximately three weeks before advising his employer
that he would require medical treatment.
The employee did miss
work as result of injuries sustained in the accident thereby
triggering the notification provisions of KRS 342.038(1);
however, he did not miss a sufficient number of days to trigger
entitlement to temporary benefits under KRS 342.040(1).
Therefore, the “terminat[ion] or fail[ure] to make payments when
due” provision of KRS 342.040(1) was never triggered and,
consequently, the notification provisions of KRS 342.040(1) were
never triggered either.
The Supreme Court noted that even
though the employer did not comply with the notification
provisions of KRS 342.038(1), since the employee never qualified
10
for temporary income benefit payments under KRS 342.040(1), even
if the employer had complied with the reporting requirements of
KRS 342.038(1), the employee would not have qualified for
notification under KRS 342.040(1).
The Supreme Court noted that
under these circumstances the statute of limitations was not
tolled.
In consideration of the foregoing case authorities, we
are persuaded that the ALJ’s analysis of the present case is
correct:
From the facts of the case at bar, the
Administrative Law Judge must find that the
situation is more akin to the situation
described in Newburg v. Hudson, supra. From
the facts it can be ascertained that the
Plaintiff returned to work immediately after
the accident and worked for another one (1)
week before he testified that his legs
collapsed. The Plaintiff testified in fact
at the formal hearing that at no time did he
ever fill out any type of accident report or
incident report with the Defendant/Employer.
Medical reports reviewed by Dr. Goldman
reflect that the Plaintiff had been treated
in the past for polyarthritis in the hands,
back and hip, rheumatoid arthritis, and
diabetic polyneuropathy. Although the
record reflects that the Plaintiff testified
at the formal hearing that he did inform the
people at the dealership including Mr.
Butler, Mr. Meredith, as well as Ray
Buchanan, that his brother was test driving
the car at the time of the accident, section
2 of a short term disability application
marked as “Exhibit 2” to the formal hearing
testimony which was to be filled out by the
Plaintiff and was in fact signed by the
Plaintiff and dated May 20, 1998,
approximately twenty-four (24) days after
11
the alleged injury date indicated that the
Plaintiff’s accident or illness was not
work-related nor was he receiving or
eligible to receive workers’ compensation
benefits. Moreover, although it appears
from the record that the application was
filed two days after the applicable statute
of limitations would have run, there is no
allegation that the anniversary date was
such that would have extended the statute of
limitations by two days. The Administrative
Law Judge must, therefore, dismiss the
Plaintiff’s claim for occupational
disability benefits on statute of
limitations grounds based on Newberg v.
Hudson, supra, inasmuch as the
Administrative Law Judge finds that at all
times there has been no indication that the
Defendant/Employer has acted in any other
way than in good faith. Based on this fact,
all other issues are hereby deemed moot.
The fact-finder, the ALJ, rather than the reviewing
court, has the sole discretion to determine the weight,
credibility, quality, character, and substance of evidence and
the inference to be drawn from the evidence.
Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).
the discretion to choose whom and what to believe.
The ALJ has
Addington
Resources, Inc. v. Perkins, Ky. App., 947 S.W.2d 421, 422
(1997). The ALJ may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether
it came from the same witness or the same adversary party's
total proof.
Caudill v. Maloney's Discount Stores, Ky., 560
S.W.2d 15, 16 (1977).
Although a party may note evidence which
would have supported a conclusion contrary to the ALJ's
12
decision, such evidence is not an adequate basis for reversal on
appeal.
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46
(1974).
Where the decision of the fact-finder is in opposition
to the party with the burden of proof, that party bears the
additional burden on appeal of showing that the evidence was so
overwhelming it compelled a finding in his favor and that no
reasonable person could have failed to be persuaded by it.
Mosely v. Ford Motor Co., Ky. App., 968 S.W.2d 675, 678 (1998).
In such cases, the issue on appeal is whether the evidence
compels a finding in his favor.
Paramount Foods at 419; Daniel
v. Armco Steel Co., L.P., Ky. App., 913 S.W.2d 797, 800 (1995).
To be compelling, evidence must be so overwhelming that no
reasonable person could reach the same conclusion as the ALJ.
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224, 226 (1985).
The factual findings of the ALJ are supported by
substantial evidence, and we agree with the ALJ that the facts
in this case are most consistent with Newberg v. Hudson, supra.
Under the facts and controlling authorities, the evidence is not
so overwhelming as to compel a finding in favor of Weathers.
It
is evident that the reporting requirements of KRS 342.038(1) and
KRS 342.040(1) were never triggered.
conclusion of the Board:
13
We agree with the
Here, the ALJ was not convinced Weathers had
ever indicated to Town & Country that he
considered this to be a work-related injury
until after he filed his application two
years and two days following the alleged
injury. The record contained substantial
evidence to support such a finding.
Weathers acknowledged in his deposition that
when he returned to work and informed Town &
County there had been an accident, he did
not state he was injured. It is apparent
from the record that Weathers never
attempted to have the workers’ compensation
carrier pay any of his medical bills for the
multiple surgeries and injections and made
no effort prior [sic] to file the claim,
seek temporary total disability or other
income benefits. From these actions as well
as the statements on the short term
disability application that his complaints
were the result of an illness rather than an
injury, the ALJ could reasonably conclude
any assertion after filing the claim that
Weathers had reported a work-related
condition lacks credibility and were
compatible with a scenario of Weathers not
having reported the work injury. At no
point has Weathers indicated a belief that
the payment of short term and long term
disability was in lieu of workers’
compensation benefits. Weathers has simply
failed to offer credible evidence that he
reported his condition to Town & Country as
a condition related to a work injury. Since
the ALJ concluded Town & Country was not
aware that Weathers was asserting a workrelated injury until more than two years
after the date of the injury, the ALJ
correctly found the claim barred by the
statute of limitations. Each case cited by
Weathers in his appeal deals with an
instance in which the employer knew of an
alleged injury and failed to comply with KRS
342.038 and/or 342.040. Thus, none of those
decisions are applicable to the facts as
determined by the ALJ.
14
When reviewing decisions of the Board, our function is
to correct the Board only where we perceive that 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."
Western Baptist Hosp. v. Kelly, Ky.,
827 S.W.2d 685, 687-688 (1992).
In this case, the Board has not
overlooked or misconstrued controlling statutes or precedent or
committed an error in assessing the evidence so flagrant as to
cause gross injustice."
For the foregoing reasons the opinion of the Workers=
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Edward A. Mayer
Louisville, Kentucky
BRIEF FOR APPELLEE, TOWN &
COUNTRY FORD:
David C. Trimble
Lexington, Kentucky
15
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