KEVIN W. GARLAND v. H.T. HACKNEY COMPANY, INC.; HON. BRUCE W. COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
DECEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000382-WC
KEVIN W. GARLAND
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-62474
v.
H.T. HACKNEY COMPANY, INC.;
HON. BRUCE W. COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Kevin W. Garland has petitioned for review of
an opinion of the Workers’ Compensation Board entered on January
27, 2006, which affirmed the Administrative Law Judge’s
dismissal of his claim for workers’ compensation benefits.1
Having concluded that the Board did not err in assessing the
1
The ALJ’s opinion and order states that “[a]t a Benefit Review Conference
that was held in this matter on June 8, 2004, on [Hackney’s] motion this case
was bifurcated on the issue of statute of limitations.”
evidence nor did it overlook or misconstrue controlling
precedent,2 we affirm.
Garland, whose date of birth is August 10, 1970,
became employed with H.T. Hackney Co., Inc. in July 1989 as a
tractor-trailer truck driver.3
On November 9, 2000, during the
course of his employment with Hackney, Garland sustained
multiple injuries4 as the result of a motor vehicle accident,
including a broken leg, neck, wrist, and back.5
Garland
underwent numerous surgeries, procedures, and therapies from
November 9, 2000, until December 1, 2000, but returned to work
for Hackney in July 2001 in the office6 as a sales coordinator,7
with a reduction in his wages.8
His temporary total disability
income benefits were terminated on July 12, 2001.
2
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
3
Garland’s responsibilities as a truck driver included delivering wholesale
groceries to convenience stores and loading and unloading trucks.
4
Additional orthopedic surgery is anticipated eventually in the form of a
total hip replacement.
5
The truck Garland was driving was hit head-on by another tractor-trailer
truck that was attempting to avoid a collision with a vehicle that had pulled
into its lane of traffic.
6
He was released by his doctors to return to work.
7
His job duties consisted of taking care of log books and sales
representatives, checking pricing, running reports from a computer, and
purchasing some products.
8
Garland testified that at the time of the accident, he earned $13.75 to
$14.75 per hour and normally worked overtime. He now earns $10.00 an hour
and works a 40-hour week.
-2-
On December 17, 2003, Garland filed a Form 101
Application for Adjustment of Injury Claim with the Department
of Workers’ Claims.9
On September 13, 2005, the ALJ entered an
opinion and order denying Garland’s workers’ compensation claim
as barred by the statute of limitations at KRS 342.185(1).
The
ALJ found that Hackney had met its burden of proof and complied
with KRS 342.040(1) in the transmission of the required
information contained in the 1A-2 reporting form.
Further, the
ALJ ruled that the fact that Garland did not receive the WC-3
form by mail standing alone could not toll the statute of
limitations.10
Garland then appealed the ALJ’s decision to the
Board, making the same claims.
The Board held that the ALJ’s
decision was based upon substantial evidence and the Board
further concluded that the voluntary payment of medical expenses
did not toll the statute of limitations set forth in KRS
342.185.
The Board entered its opinion on January 27, 2006,
affirming the ALJ’s opinion.
Because the facts of this case are not in dispute, we
will quote the relevant portions of the ALJ’s opinion as
follows:
9
While this claim was pending, the name was changed to Office of Workers’
Claims.
10
See Miller v. Stearns Technical Textiles Co., 145 S.W.3d 414 (Ky.App.
2004).
-3-
3.
[Garland] has introduced the testimony
of [his] wife, Sandra Garland. Ms.
Garland testified that she has been
married to [Garland] for 15 years. She
further testified that her current
address is 1809 Old Calvert City Road,
Calvert City, Kentucky. She testified
that she is the one who takes care of
the paperwork and financial matters at
home and she is the one who checks the
mail. She testified that at the time
of the November 9, 2000[,] accident she
and her husband lived at 2638 Fairmont
Street in Paducah. She testified that
they then moved to 6920 Shawn Lane in
Paducah in July 2001. She further
testified that they moved once again to
the Calvert City address in April 2003.
She further testified that on October
3, 2001[,] they did not live at the
Fairmont address but lived at the Shawn
Lane address and that they had lived at
that address for approximately three
months as of October 2001. She was
handed Exhibit 1 to Joe Peters
deposition which was the WC-3 letter
dated October 3, 2001. She further
noted that the address on the letter
marked Fairmount Street was wrong
inasmuch as she lived on Fairmont
Street. She testified that they never
received the WC-3 letter from the
Department of Workers’ Claims. She
testified that she checked with the
local post office prior to her
deposition. The post office did not
have any record of the Shawn Lane
address but did have a change of
address card from where they moved from
Shawn Lane to Calvert City. On crossexamination, Ms. Garland testified that
the temporary total disability benefits
were received at the Fairmount [sic]
address in Paducah and that those
benefits were paid through July 12,
2001. She testified that two checks
however were received at the Shawn Lane
-4-
address. She testified that they moved
from the Fairmount [sic] address to the
Shawn Lane address sometime in July
2001 but she could not recall the exact
date of when the Fairmount [sic]
address ceased to be her mailing
address. She testified that when she
moved from Fairmount [sic] to Shawn
Lane she completed a change of address
card. She testified that she received
the two disability checks at the Shawn
Lane address because she called the
case worker for the insurance company
and informed him that their address had
changed. Ms. Garland further noted
that she had no difficulty receiving
forwarded mail at her new address at
6920 Shawn Lane.
4.
[Hackney] has filed the deposition of
Mr. Joe Peters. Mr. Peters holds the
position of Resource Management Analyst
III for the Office of Workers’ Claims.
His responsibilities include checking
electronic filings and editing and
checking those filings for errors. His
job also includes developing training
courses for in-house and out-of-house
insurance carriers. He testified that
a WC-3 letter was sent to Kevin Garland
at 2638 Fairmount, Paducah, Kentucky
42001 after the insurance carrier filed
an IA-2 report indicating that
temporary total disability benefits had
ceased. Mr. Peters testified that
there was no record of a return of the
letter in the electronic file. He
testified that if the letter had been
returned a current address would have
been investigated and the letter would
have been sent to the new address.
However, because there is a copy of the
WC-3 letter in the department’s imaging
system he would assume that the letter
was mailed and the original was
received by [Garland].
-5-
5.
11
[Hackney] has also filed the deposition
of Mr. John Sampson, Jr. as evidence in
this claim. Mr. Sampson is employed by
AIG, the insurance carrier in this case
as a claims manager. He has been
employed by AIG for nine years but has
worked in his current position for nine
months. Around the time period of 2000
and 2001 he held the title of senior
claims specialist. He handled
[Garland’s] claim from the beginning
which was the day of the November 9,
2000[,] accident. He testified that
AIG on behalf of [Hackney] paid
[Garland] temporary total disability
benefits beginning November 10, 2000[,]
and continued those payments through
July 12, 2001. The temporary total
disability benefits were mailed to
[Garland] at 2638 Fairmount, Paducah,
42001. He testified that he spoke with
Ms. Garland on July 12, 2001. He
testified that Ms. Garland called on
July 12, 2001[,] to advise him that
[Garland] returned to work on July 9,
2001. He testified that he explained
to her that on July 6, 2001[,] he had
generated a temporary total disability
check that paid him through [ ] July
12, 2001. He further explained to her
that there was a four day overpayment.
He requested that she write void across
the check when she received it and send
it back to AIG. She explained that
they had recently moved and that she
would wait until she received the
check.11 At that time she would cash
the check and send AIG the difference.
He denied that at any time during his
conversation with Ms. Garland did she
give him a new mailing address and he
further denied that at no time did
Kevin Garland or his wife Sandra
Garland inform him of their move to the
Shawn Lane address. He testified that
The Board misstates this finding by the ALJ.
-6-
See infra n. 13.
the July 6, 2001[,] check was mailed to
the 2638 Fairmount address and was
never returned back to AIG. He stated
that an IA-2 subsequent report noting
the return to work was completed and
filed [with] the Department of Workers’
Claims on or about September 28, 2001.
He further stated that since that time
a mileage reimbursement check in the
amount of $1,056.64 was sent to
[Garland] at the same address of 2638
Fairmount, Paducah, Kentucky 42001 on
December 11, 2001. He testified that
the reimbursement check was never
returned to AIG. He explained that if
a check has not been cashed within 180
days of its issuance, the check is
automatically voided in the insurance
carrier’s system and the reimbursement
check and the July 6, 2001[,] temporary
total disability check [have] not been
voided. Therefore[,] he opined that
both checks have been cashed. On
cross-examination, Mr. Simpson
testified that he transacted the July
6th check but the checks are actually
mailed out from a different office in
New Jersey. He stated that he puts the
information into a computer system
which automatically goes to a check
printing office, which is located in
New Jersey and that the New Jersey
office mails the check from there. He
testified that if there is a change of
address he would put that information
into the computer system and the check
would then be mailed to the new
address.
Garland argued before the ALJ that the statute of
limitations for his workers’ compensation claim should have been
tolled because the WC-3 letter was mailed to an incorrect
address and he never received it.
-7-
Further, Garland argued that
Hackney’s agent did not notify the Office of Workers’ Claims of
his new address in July 2001, and that the statute should have
been tolled because the letter generated at the Office of
Workers’ Claims may not have ever been delivered to central
processing, stamped, or deposited with the postal service.
In
the alternative, Garland argued that KRS 342.185 should be
interpreted to allow a filing of a claim for benefits within two
years from the last payment of voluntary benefits, including
medical benefits.
In contrast, Hackney argued that the
temporary total disability benefits terminated on July 12, 2001,
and Garland’s application for an adjustment of injury claim was
not filed until December 17, 2003, more than two years after the
termination of his temporary total disability benefits, and the
fact that Garland moved to a new address in July 2001 does not
provide an excuse for Garland’s failure to timely file an
application for benefits.
The ALJ ruled that Hackney had sustained its burden of
proving that it had provided notice to Garland pursuant to KRS
342.040(1).
The ALJ applied the applicable law to the facts and
determined Garland’s claim was barred by the statute of
limitations.
7.
The ALJ stated as follows:
KRS 342.185(1) provides as follows as is
applicable to this issue:
Except as provided in subsection (2)of
this section, no proceeding under this
-8-
chapter for compensation for an injury or
death shall be maintained . . . 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. . . . 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.
The facts of this case demonstrate that the
last temporary total disability payment was
made on July 12, 2001. The application of
an adjustment of claim however was not filed
until December 17, 2003, clearly beyond the
2 year statute of limitations. The facts of
the case further demonstrate that upon
terminating the temporary total disability
benefits, the claims administrator for
[Hackney] filed a Form IA-2 notifying the
Office of Workers Claims that the
termination date for temporary total
disability benefits was July 12, 2001. This
fact is confirmed through the testimony of
Joe Peters. As a result of receipt of this
form, the Office of Worker’s Claims sent a
WC-3 letter to [Garland] at 2638 Fairmount
(sic), Paducah, Kentucky 42001 on or about
October 3, 2001. The testimony of Joe
Peters again confirms this fact and the
testimony of Joe Peters further confirms
that from the electronic files that the WC-3
letter was sent and there was no record of a
return of the letter in the electronic file.
Although the record further reflects that
[Garland’s] wife called the claims adjustor
on July 12, 2001[,] to inform him that
[Garland] had in fact returned to work on
July 9, 2001[,] which precipitated the
termination of temporary total disability
benefits and also explained to him during
the same telephone call that they had
-9-
recently moved, there is no indication that
[Garland] informed the adjustor at that time
of the new address. In fact the adjustor
testified specifically in his deposition
that at no time did [Garland] or his wife
inform him of a new mailing address. He
further confirmed that at no time did
[Garland] or his wife inform him of the move
to the Shawn Lane address.
8.
The [ALJ] rejects [Garland’s] argument that
the statute of limitations should be tolled
under the circumstances of this particular
case inasmuch as [Hackney] and/or its
insurance carrier failed to ask for a new
address during this telephone call. The
[ALJ] points out and the record so reflects
that [Garland’s] wife testified on cross
examination that when she moved from the
Fairmont address to the Shawn Lane address
that she completed a change of address card
at the downtown branch of the Paducah Post
Office. She further testified on cross
examination that she received two disability
checks at the Shawn Lane address presumably
based on this change of address form. In
further support that [Garland] received mail
at the Shawn Lane address which was sent to
the old address the [ALJ] cites to the
deposition testimony of John Sampson, the
claims manager for AIG, who testified that a
mileage check in the amount of $1,056.64 was
sent to [Garland] at [his] former address,
2638 Fairmount (sic), Paducah, Kentucky
42001 on December 11, 2001[,] and this
reimbursement check was never returned to
AIG as undeliverable. Moreover, Mr. Sampson
explained that if the check was not cashed
within 180 days of its issuance, the check
was automatically voided in the insurance
carrier system and that this reimbursement
check had not been voided. Moreover,
attached to [Hackney’s] brief is a copy of
this check #079822365 dated December 19,
2001[,] and addressed to [Garland] at 2638
Fairmount, Paducah, Kentucky 42001 which has
-10-
been endorsed on the back indicating
receipt.
9.
Although [Garland’s] wife’s testimony
indicates that the street name for [Garland]
contained with the Department of Workers
Claims notification letter and with the
reimbursement check has been incorrectly
recorded as Fairmount when in actuality the
correct spelling is Fairmont, as it applies
to the reimbursement check [Garland] did in
fact receive said check upon the change of
notification form not withstanding [sic]
this incorrect spelling. To this extent,
the [ALJ] finds that the misspelling played
no consequence in the failure of the notice
letter from being forwarded. For these
reasons, the [ALJ] will find that contrary
to the holding in Lizdo v. GenTech
Equipment, 74 S.W.3d 703 (Ky. 2002) the
[ALJ] finds that the employer did in fact
comply with the provisions of KRS 342.040(1)
in the transmission of the required
information contained in the IA-2 reporting
form. Under the circumstances, the [ALJ]
finds that [Garland’s] testimony that she
did not receive the WC-3 form as mailed by
the Department of Workers Clams is
insufficient in and of itself to toll the
statute. Under the circumstances of this
case and as previously pointed out the [ALJ]
finds significant the following to
substantiate this finding:
1.
[Garland’s] wife did testify on cross
examination that she filled out a change
of address form at the downtown post
office branch located on 4th Street
across from City Hall in Paducah,
Kentucky.
2.
[Garland’s] wife acknowledged that she
in fact did receive 2 temporary total
disability checks at the Shawn Lane
address notwithstanding the fact that
they were mailed by the insurance
carrier to the old address of 2638
-11-
Fairmount in July 2001 and the evidence
further demonstrates that a
reimbursement check dated December 2001
which was mailed to the former address,
incorrectly spelled, was endorsed by
[Garland] and therefore received.
3.
Joe Peters, with the Department of
Workers Claims, stated that there was no
return on the WC-3 form.
For these reasons the [ALJ] must find that
this claim must be dismissed as barred
because the Form 101 application was filed
outside the 2 year period put forth in KRS
342.185(1). . . .
Garland subsequently appealed to the Board and
asserted the same arguments.
The Board held that there was
substantial evidence to support the ALJ’s decision that
Garland’s claim was time-barred, and that Garland’s policy
argument regarding KRS 342.185 was a decision for the
Legislature and not the Board.
This petition for review
followed.
As the fact-finder, the ALJ has the sole discretion to
determine “the quality, character, and substance of evidence.”12
The function of further review of the Board in the Court of
Appeals is “to correct the Board only where [this] Court
perceives the Board has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the
12
Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002).
-12-
evidence so flagrant as to cause gross injustice”.13
In the case
before us, we are unpersuaded that the view of the evidence
taken by the ALJ and the Board was unreasonable.
Because we
agree with the Board’s rationale on this issue, we quote from
Chairman Gardner’s opinion and adopt the following as our own:
KRS 342.040(1) places certain
obligations on the employer and on the
Office of Workers’ Claims. The employer has
the affirmative duty to notify the Office of
Workers’ Claims of its refusal to pay
temporary total disability (“TTD”) benefits
after a worker misses more than seven days
of work due to a work-related injury. The
statute also requires the Office of Workers’
Claims to advise the worker of the right to
file a claim and [the] applicable period of
statute of limitations. KRS 342.185 tolls
the period of limitations until voluntary
income benefits are suspended. When KRS
342.040(1) and KRS 342.185(1) are read
together, it is clear the two-year statute
of limitations period does not begin to run
until: 1) the employer ceases payment of
voluntary income benefits; 2) the employer
provides notice of the cessation of benefits
to the Office of Workers’ Claims, and (3)
the Office of Workers’ Claims sends the
employee the required notice.
KRS 342.990 provides both civil and
criminal penalties for failure to comply
with KRS 342.040, but neither it nor any
other statute provides a remedy for workers
whose rights are affected by the failure to
comply. Thus, the courts have turned to
equitable principles in order to protect
them. See Newberg v. Hudson, 638 S.W.2d
384, 389 (Ky., 1992). In Newberg, the
Kentucky Supreme Court held that an
employer’s failure to strictly comply with
13
Western Baptist Hospital, 827 S.W.2d at 687-88.
-13-
KRS 342.040 estopped it from raising the
limitations defense. The rationale is that
if the Office of Workers’ Claims does not
receive an employer’s notice of termination
or refusal, it cannot perform its obligation
to the affected worker. Furthermore, it is
not necessary to establish the employer
acted in bad faith for the employer to be
precluded from raising the statute of
limitations defense. Rather, it merely must
be shown that such failure could not be
attributed to the worker. H.E. Newman Co.
v. Lee, [975 S.W.2d 917, 921 (Ky. 1998)];
Colt Management Co. v. Carter, 907 S.W.2d
169 (Ky.App. 1995); Ingersoll-Rand Co. v.
Whittaker, 883 S.W.2d 514 (Ky.App. 1994).
Here, H.T. Hackney did not fail to
comply with KRS 342.040(1) in an attempt to
manufacture a limitations defense. Further,
the Office of Workers’ Claims did not fail
to comply with KRS 342.040(1). Rather, the
employer provided incorrect information to
the Office of Workers’ Claims regarding
Garland’s current address and as a result,
the statutory notice purportedly never
reached Garland. However, as testified to
by Sampson, the insurance adjuster, Garland
never provided him with the new address or,
for that matter, informed him of their
move.14 The ALJ rejected Garland’s argument
that the statute of limitations should be
tolled under those circumstances. The ALJ
found it significant that Garland’s wife
testified on cross-examination that she
received two disability checks at the former
address, based on a change of address form
filed with the United States Postal Service.
The ALJ found the circumstances
contrary to those in Lizdo v. Gentec
Equipment, [74 S.W.3d 703 (Ky. 2002)] where
the [S]upreme [C]ourt held the statute of
limitations was tolled based upon the
failure of the employer to establish that it
14
The Board misstated the finding by the ALJ.
-14-
See supra n.10.
had complied with the newly amended filing
regulations by submitting an electronic IA-2
in addition to the paper Form SF-3A
contained in the file. The court’s focus
was on whether the employer had exactly
fulfilled the statutory obligations imposed
upon it in order to trigger the
commissioner’s issuance of the notice
required by KRS 342.040(1) advising the
claimant of his right to prosecute a claim.
Here, H.T. Hackney provided the Office
of Workers’ Claims with the only address it
had for Garland, and he did not provide the
claims administrator, Sampson, with a new
address. The Office of Workers’ Claims
mailed the notice letter to the address it
had on file. Garland properly received all
the TTD checks, which were mailed to the
Fairmont [sic] address, at the Shawn Lane
address through forwarding by the United
States Postal Service. Further[,] the WC-3
letter was not returned to the Office of
Workers’ Claims as undeliverable. In the
face of this evidence, Garland’s own
testimony that he did not receive the notice
letter does not compel the result he seeks.
. . .
Garland’s other argument is that the statute of
limitations in KRS 342.185 should have been tolled by the
payment of medical benefits.
According to KRS 342.185(1), [i]f
payments of income benefits have been made, the filing of an
application for adjustment of claim with the office 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.”
-15-
Garland’s reliance on Purdy v. Palmore,15 and Hetteberg v. City
of Newport,16 is misplaced because, as Member Young points out in
his concurring opinion, “KRS 342.185(1) has since been amended
to limit tolling to voluntary payment of income benefits[.]”
KRS 342.185 is unambiguous and the plain meaning of the words
chosen by the Legislature require us to reject Garland’s
argument.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark D. Pierce
Paducah, Kentucky
R. Christion Hutson
Paducah, Kentucky
15
789 S.W.2d 12 (Ky. 1990).
16
616 S.W.2d 35 (Ky. 1981).
-16-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
