RENDERED: MARCH 5, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
LOUIS TRAUTH DAIRY; HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT, SENIOR JUDGE.
WINE, JUDGE: Shane Granger appeals from an opinion of the Workers’ Compensation Board (“the Board”) pursuant to Kentucky Rule of Civil Procedure (“CR”) 76.25. On appeal he claims the Board misconstrued the application to the present case of Kentucky Revised Statute (“KRS”) 342.185, which mandates that compensation shall not be available unless the injured employee provides notice “as soon as practicable” after the accident causing the injury. We disagree.
History
Granger has been employed by Louis Trauth Dairy (“the Dairy”) for more than ten years. On August 15, 2007, Granger was working in the Dairy when one of the milk-packing machines jammed, causing a crate bearing nine containers of milk to come down a chute and strike him in the shin. The force of the blow knocked Granger to the ground, and he immediately noticed a red welt on his leg. Granger did not report this incident to the Dairy. He reportedly felt that it was “no big deal” at the time.
The next day, Granger noticed that the welt was bigger and had begun to turn black and blue. Granger’s leg continued to worsen as the days passed. By October of 2007, Granger noticed that the spot was getting red and discolored, “like a blister or a boil.” Thereafter, the spot on Granger’s leg became an open wound. Granger attempted to care for the wound at home, using ointment and Band-Aids.
After approximately one-and-a-half weeks of at-home treatment, Granger called his family physician who bandaged the wound and provided him with a prescription cream for his leg. Granger returned for a second appointment with his family physician approximately one or two weeks later. At that time, Granger’s family physician referred him to a specialist who prescribed other treatment for the wound.1
Granger testified that he spoke to his supervisor, Ed Kramer, about the accident at some time in November, although he could not recall the exact date. Dave Wiseman, a shift supervisor for the Dairy, stated in his deposition testimony that the Dairy always stressed to its employees the importance of immediately reporting injuries because the presence of animal fats, bacteria, and chemicals in the workplace created an environment that could cause even minor cuts to become infected.
Although the exact date Granger attempted to report the injury is not clear, it is clear that when Granger did attempt to report the injury, he was told by Kramer that it was too late. Granger brought this workers’ compensation claim after he was unable to file a report. On review, the Administrative Law Judge (“ALJ”) found that Granger’s delay in reporting the injury was not the result of mistake or reasonable cause, and that he failed to give notice “as soon as practicable.” The Board upheld the ALJ’s finding that Granger failed to give timely notice. Granger now appeals.
Analysis
When reviewing a decision of the Board, we will only reverse where the Board has misconstrued or overlooked controlling law or has so flagrantly erred in evaluating the evidence that gross injustice has occurred. Daniel v. Armco Steel Co., L.P., 913 S.W.2d 797, 798 (Ky. App. 1995). This requires us to review the ALJ’s decision. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). See also, Newberg v. Parsons, 852 S.W.2d 336-339 (Ky. 1992). Such review is influenced by which party prevailed before the ALJ. Notably,
[w]hen the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did.
Id. at 643. However, when the fact-finder finds against the party bearing the burden of proof, the task on appeal is much greater. Indeed,
[i]t is of no avail in such a case to show that there was some evidence of substance which would have justified a finding in his favor. [Rather, h]e must show that the evidence was such that the finding against him was unreasonable because the finding cannot be labeled “clearly erroneous” if it reasonably could have been made.
Id. (Emphasis added). In the present case, since the ALJ found against Granger, we may not disturb his finding unless it could not have been reasonably made. The test for reasonableness is whether the evidence would compel a finding in his favor. Id. For the reasons set forth below, we maintain that the ALJ’s finding with respect to Granger’s delay in notice was reasonably made.
The issue presented is whether Granger provided his employer with timely notice of his work-related injury as required by KRS 342.185. KRS 342.185 provides in pertinent part that,
no proceeding under this chapter for 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 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 accident.
Further, KRS 342.190 requires that notice be given in writing and that the notice include the time and place of the occurrence as well as a general description of the nature and extent of the resulting injury.
Regardless, a delay in giving notice may be excused where an employer has knowledge of the injury or where the delay was due to mistake or other reasonable cause. KRS 342.200. Indeed, KRS 342.200 states that “notice shall not be invalid or insufficient because of any inaccuracy in complying with KRS 342.190 unless it is shown that the employer was in fact misled to [the employee’s] injury.” However, “[a] lack of employer prejudice does not waive a delay in giving notice.” Trico County Development & Pipeline v. Smith, 289 S.W.3d 538, 542 (Ky. 2008).
A work-related injury is defined by KRS 342.0011(1) as a “traumatic event .... which is the proximate cause producing a harmful change in the human organism.” Thus, each of the above-referenced statutes, when considered together, “require timely notice of the work-related accident (i.e., the traumatic event) as well as of the resulting harm.” Trico County Development, 289 S.W.3d at 541.
The purpose of the notice requirement is threefold: “[1]to enable the employer to provide prompt medical treatment in an attempt to minimize the worker’s 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.” Id. at 542.
Granger maintains that he provided notice to his employer as soon as he “became aware of the seriousness of his injury.” He maintains that the law does not require an employee to report a minor incident in which there is no injury. Granger avers that he believed (although he was mistaken in such belief) that he had not suffered anything other than a minor injury. Granger opines that the ALJ agreed with him on this point, as the ALJ’s opinion stated that “it is not practical to expect an employee to give notice of every little bump or bruise that occurs in the workplace.” Continuing in this line of reasoning, Granger argues that an injury only becomes practical to report when it becomes something worse than a small bump or bruise. Thus, he argues that any delay in providing notice was due to mistake or reasonable cause under KRS 342.200.
However, the cases which Granger cites do not support his claim. Granger first points to Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866 (Ky. App. 1962), where an employee missed work for two months, never made a claim for worker’s compensation, and then died thirteen months later. In Little, supra, the court allowed the estate to make a claim on the grounds that the employee was unaware of the condition from which he suffered (he thought he had stomach trouble when he actually had a dissecting aneurysm) and because doctors had trouble diagnosing it.2 Unlike Little, the present case is not one where the employee suffered an injury which he was unaware of or was difficult for doctor’s to diagnose.
Granger also analogizes his case to that of Harlan Fuel Co. v. Burkhar, 296 S.W.2d 722 (Ky. 1956), where an employee did not provide notice until four months after he had been committed to a hospital for silicosis. In Harlan, supra, however, the employer had knowledge of the injury because it was the company doctor who had treated the employee. As such, this case is also distinguishable from the present one.
Finally, Granger’s claim stemmed from a specific traumatic event (rather than cumulative trauma). Alcan Foil Products v. Huff, 2 S.W.3d 96, 101 (Ky. 1999), and Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001). Sufficiency of notice is measured from the date of the accident in cases such as the present one. Id. Here, Granger suffered an acute episode of trauma (when the milk crate struck his leg), and he was aware at the time that he had an injury. While Granger believed his injury to be minor, this does not obviate the requirement that he give notice. The ALJ conceded that it may have been initially understandable for Granger not to have reported what he believed was just a minor welt or bruise. However, the ALJ determined that “60+ days” was too long for Granger to have believed his continually worsening condition was minor and unworthy of reporting to his employer.
As fact-finder, the ALJ has the sole authority to adjudge the weight and credibility of the evidence. Miller v. East Ky. Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997). Further, there is no statutory timeframe for the notice requirement and the ALJ has discretion in determining whether notice was given “as soon as practicable.” Newberg v. Slone, 846 S.W.2d 694, 699 (Ky. 1992). See also, Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644, 134 S.W.2d 221, 223 (1939). Because the ALJ could have reasonably found that Granger’s failure to give notice until more than two months after the injury was unreasonable, we will not disturb its finding.
Accordingly, the opinion and order of the Workers’ Compensation Board is hereby affirmed.
KELLER, JUDGE, CONCURS IN RESULT ONLY.
LAMBERT, SENIOR JUDGE, DISSENTS AND FILES SEPARATE OPINION.
LAMBERT, SENIOR JUDGE, DISSENTING: In my view, Granger’s delay in reporting was not unreasonable and was of sufficient timeliness to meet the statutory standard. As shown in the majority opinion, the initial injury did not appear to be severe and was of the type normally treated at home or permitted to heal on its own. Although the injury worsened over time, Granger obtained reasonable medical treatment and attempted to give notice within three months of the date of the accident.
Although quoting from KRS 342.200 and citing to Trico County Development & Pipeline v. Smith, 289 S.W.3d 538 (Ky. 2008), the majority has failed to apply the law appropriately. While this was a “traumatic” event, it was not unreasonably believed to be of a minor or insignificant nature. If this Court requires every bump and bruise to be reported to preserve a claimant’s right to proceed at a later time, industrial employers will be inundated with trivial complaints. The majority attempts to distinguish this case from Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866 (Ky. 1962), on grounds that in the Little case, the employee was unaware of the injury or encountered difficulty in obtaining a diagnosis. Contrary to the majority, I regard Little as highly persuasive. In each case, the employee suffered what was believed to be a minor injury that later developed into a far more serious injury or medical condition. The Court explained:
In this case the employee was not aware of the serious nature of his injury. Actually it was not discovered until after his death. KRS 342.200 seems to contemplate just such a situation. It provides that want of notice shall not be a bar if ‘occasioned by mistake or other reasonable cause’. The employee’s failure to give more adequate notice of a specific injury was because of his mistaken personal diagnosis and want of better knowledge. If the notice of the accident and apparent injuries received by the employer was inadequate, surely reasonable cause existed for the failure to give additional information. The employer cannot sustain its position on this point.
Id. at 868.
In my view, less than three months delay in reporting a perceived minor injury that became more serious with the passage of time, notwithstanding appropriate medical treatment, is not a sufficient basis for dismissal.
BRIEF FOR APPELLANT: Larry Hicks Edgewood, Kentucky |
BRIEF FOR APPELLEE: Stephen R. Chappell Mark J. Hinkel Lexington, Kentucky |
1 A medical report by the specialist, Dr. Eldrige, stated that Granger had suffered an abrasion bruise injury to his right leg in August, and that he subsequently developed hematoma, ecchymosis, bruising, marked edema, and swelling of the lower extremity resulting in a pressure necrotic wound of the right pre-tibial area.
2 Little is also distinguishable because it involved a provision which allows a claim for death to be made within one year of the employee’s death by his survivors, regardless of whether a claim was made by the employee.
