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Workers’
Compensation Board
OPINION
ENTERED: October 3, 2014
CLAIM NO. 201301923
DARYL LAFERTY PETITIONER
VS. APPEAL FROM HON. OTTO
DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE
UNITED PARCEL SERVICE
and HON. OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member. Daryl
Laferty ("Laferty") appeals from the February 24, 2014, Order and the
April 14, 2014, Order overruling his petition for reconsideration of Hon. Otto
Daniel Wolff, IV, Administrative Law Judge ("ALJ"). In the February
24, 2014, Order, the ALJ sustained United Parcel Service, Inc.'s
("UPS") Motion to Dismiss, ordering the claim dismissed due to a
failure to file the Form 101 within the statutory period as mandated by KRS
342.185(1). On appeal, Laferty asserts the ALJ erred by dismissing the claim.
The Form 101, filed December 10, 2013, alleges
on July 21, 2011, Laferty sustained injuries to his heart and kidneys and
suffers migraines due to the following incident: "Mr. Laferty experience
[sic] heat exhaustion, dehydration and heat stroke while delivering packages in
100 degree temps." The Form 101 asserts "[n]otice was given to
supervisor on date of injury."
Medical records attached to the Form
101 indicate Laferty was examined by Dr. Brian M. Plato, D.O., on September 11,
2012. In this medical record, Dr. Plato diagnosed the following:
1. Migraine without aura, with intractable migraine, so stated,
without mention of status migrainosus.
2. Tension type headache, unspecified.
In Dr. Plato's "Progress
Notes," he wrote as follows:
Mr. Laferty began having headaches last
December, this all began following an episode of severe dehydration and 'heat
stroke' he had in the summertime requiring 3 days at Jewish Hospital.
Also attached to the Form 101 is a
medical record of Norton Healthcare dated August 20, 2013, containing the
following diagnoses:
1. Migraine without aura, with intractable migraine, so stated,
without mention of status migrainosus.
2. Tension type headache, unspecified.
3. Chronic migraine without aura, with intractable
migraine, so stated, without mention of status migrainosus.
Finally, attached to the Form 101 is a
medical record dated June 5, 2012, of Dr. Michael Payne who set forth the
following diagnoses: Headache; Insomnia; Memory Loss; and Hypertension.
UPS filed the medical records of Dr.
Janet Chipman and Dr. Wayne Gibson.
The medical record of Dr. Chipman
dated August 1, 2011, contains the following history:
Very nice 49-year-old well known to me after
caring for his wife and him both, he being status post laparoscopic
cholecystectomy with x-ray 6/2008. He comes in now with what he describes as
pain in his lower left abdomen. He relates that it is subsequent to his heat
stroke but I think actually the abdominal symptoms were the initiating factor.
He describes that the Wednesday morning about
10 days ago he had emesis x2. He went to work and did fairly well. That night
he came home and began to have a lot of abdominal cramping. He had sweating
during the night. He had pains all over his abdomen.
The next day he went to work and became
'overheated.' He tried to drink fluids but to no avail and finally had to go to
the Emergency Room at Jewish East. He says they gave him multiple bags of IV
fluids and sent him downtown. During that evaluation at Jewish East he had a CT
scan of the chest, abdomen and pelvis 7/21 where there were no acute findings.
IV contrast was not administered secondary to a GFR of only 29. He was seen to
have calcifications in the left anterior descending coronary vessel, worrisome
for coronary artery disease. He had a non-obstructing right kidney stone. The
GI tract appeared normal. He had an MRI of the thoracic aorta which was normal.
He also had a renal ultrasound that essentially was normal.
He says while in the hospital he continued to
have some mild abdominal pain. He was discharged two days after [sic] admitted
with some mild pain and was told to follow up with his primary care physician.
His stools were soft while in the hospital, changed to diarrhea once he got home
and then became also frank water. He has been started on Cipro and Flagyl by
Dr. Payne and the diarrhea had continued. He had 3 this morning that were all
runny. He has had no blood in this whatsoever.
He doesn't know of any exposure to any GI
viruses or intake or [sic] spoiled food.
Under "Diagnosis" is the
following:
Gastroenteritis. I think his heat exhaustion
is actually secondary to being in a depleted state from his gastroenteritis. It
seems that it started the day prior to the heat exhaustion, continued to a mild
level and has progressed on to the diarrhea phase. I am not sure if this is
related to an ischemic event or infectious.
Under a separate heading of
"Diagnosis" is the following: "Apparent renal insufficiency,
continued on Lisinopril."
The medical record of Dr. Gibson dated
August 10, 2011, indicates the following medical history: "[H]ypertension.
Syncope due to hypovolemia. Acute renal failure due to hypovolemia.
Cholecystectomy. Renal stones." Under "Impression" is the
following: “1. Coronary calcification with risk factors for CAD 2. Hypertension
3. Renal Stones."
On January 27, 2014, UPS filed a
Notice of Claim Denial denying the claim for the following reasons:
·
Plaintiff
was not employed by defendant on the date of alleged injury;
·
The
alleged injury did not arise out of and in the course of employment.
·
The
plaintiff did not give due and timely notice to employer of the injury.
·
The
claim is barred by limitations.
Under
"other reasons for denial" is: "Any affirmative defenses are
specifically pled."
On January 27, 2014, UPS filed a
Special Answer asserting the statute of limitations, KRS 342.270, is a complete
or partial bar to Laferty's claim. All other allegations were denied.
On February 7, 2014, UPS filed a Motion
to Dismiss Claim with Prejudice in which it set forth several grounds. First,
UPS asserted Laferty's alleged injuries were sustained on July 21, 2011, and he
filed his Form 101 on December 2, 2013. Second, UPS asserted it did not receive
notice of Laferty's alleged injuries until the Form 101 was filed and no
benefits were paid regarding the alleged injuries. Third, UPS asserted the
medical records of Dr. Chipman, filed in the record on February 7, 2014,
indicate Laferty was seen on August 1, 2011, eleven days after the alleged date
of injury, for gastroenteritis, and on that date Laferty asserted his
gastroenteritis was related to heat exposure.
Finally, UPS argued that pursuant to KRS 342.185(1), no claim for
compensation shall be maintained unless notice was given to the employer as
soon as practicable after the happening thereof and a Form 101 is filed within
two (2) years after the date of the accident.
On February 24, 2014, Laferty filed a
"Response to Defendant's Motion to Dismiss and Plaintiff's Motion to Place
Claim in Abeyance." Due to its immense significance, Laferty's response will
be set forth verbatim herein:
The Defendant/Employer's motion is not
appropriate. United Parcel Service, Inc. has requested that this claim be
dismissed with prejudice based on the statute of limitations as prescribed in
KRS 342.185(1), but they [sic] should be barred from asserting this defense as
the injury was timely reported to the Plaintiff's supervisor immediately and
the Plaintiff missed work due to the injury thereafter. UPS did not report the
injury to the DWC and/or its workers' compensation carrier. As such, the motion
to dismiss is groundless.
The fact that the 'workers' compensation
carrier never received notification of an alleged injury' is irrelevant as it
is the fault of its own insured, UPS, for not properly reporting the injury to
them and the DWC. The Plaintiff will testify that he worked a 10 1/2 hour shift
as a driver for UPS during a 100 degree [sic] and suffered from heat
exhaustion, dehydration and heat stroke. His supervisor came to where Mr.
Laferty was incapacitated and took him to the hospital. The Plaintiff was off
work for 6-7 weeks thereafter due to this injury, but did not receive any
benefits. Based upon these facts, the statute of limitations is tolled and the
Defendant cannot rely upon it as a defense.
Motion
The Plaintiff moves to have this claim
placed in abeyance while the appeals process of his union dispute is completed.
He does not want to jeopardize his prospect of being allowed to return to his
job through the union and employer negotiations or the union appeals process.
It was his desire in filing the claim to preserve his workers' compensation
rights.
WHEREFORE, the Plaintiff respectfully
requests that the attached Order be entered overruling the Employer's motion to
dismiss this claim and placing the claim in abeyance until the Plaintiff's
capable of proceeding in the workers' compensation claim without impacting his
union rights.
On February 24, 2014, the ALJ sustained
UPS's Motion to Dismiss, holding as follows:
This claim is hereby dismissed ["with
prejudice" has been crossed out with "ODW" handwritten above]
due to Plaintiff's failure to file the Form 101 Application for Resolution of
Injury Claim within the statutory period as prescribed in KRS 342.185(1).
In his March 7, 2014, petition for
reconsideration, Laferty made several arguments. First, Laferty asserted the
ALJ failed to review his response to UPS's Motion to Dismiss. Next, Laferty
asserted UPS is estopped from relying upon a statute of limitations defense
because its failure to give the statutory notice tolled the statute of
limitations. Laferty argued "UPS was required to report his work injury to
its workers' compensation carrier and the carrier was required [sic] give the
statutory notice that it was denying his claim because he was, in fact,
entitled to such benefits." Last, Laferty asserted the fact that UPS's
workers' compensation carrier never received notification of an alleged injury
is not his fault. Instead, it is UPS's fault for not reporting the injury to
the carrier and the Department of Workers' Claims.
In the April 14, 2014, Order
overruling Laferty's petition for reconsideration, the ALJ stated as follows:
This dismissal is correct. A simple review of
the claim file reveals Plaintiff alleged a July 21, 2011 work injury, but filed
his Form 101 on December 10, 2013, more than two (2) years after the alleged
work injury. Per KRS 342.040(1) an injured worker's claim must be filed within
two (2) years of his work incident. There are exceptions to this time
limitation, but no valid exception is shown herein.
On appeal, Laferty argues UPS was
required to report his injury to its workers' compensation insurance carrier,
and the carrier was required to give the statutory notice it was denying his claim.
Laferty asserts he has been denied protection under the Workers' Compensation
Act. Additionally, Laferty asserts the medical records attached to his Form 101
indicate he missed work after the July 21, 2011, incident. Laferty also argues
he was entitled to temporary total disability ("TTD") benefits during
the time he was off work and protection under the Act.
We vacate the February 24, 2014, Order
and the April 14, 2014, Order overruling Laferty's petition for reconsideration
and remand for a reopening of proof time and entry of a decision resolving the
issues of notice, the statute of limitations, and, if appropriate, the merits
of Laferty's injury claim. Laferty is
entitled to introduce evidence relevant to the issues of notice, the statute of
limitations, and the merits of his injury claim.
Several statutes are implicated by
this appeal.
KRS 342.185(1) states as follows:
(1) Except as provided in subsection (2) of
this section, no 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 office 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 the claim had been made by the employee himself for
compensation. The notice and 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 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.
KRS 342.190 mandates that notice and
claim shall be in writing.
KRS 342.200 states as follows:
The 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 his injury thereby. 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. (emphasis added).
KRS 342.038(1) and (3) state 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, 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 office in the manner directed by the
executive director through administrative regulations. An employer's
insurance carrier or other party responsible for the payment of workers'
compensation benefits shall be responsible for making the report to the Office
of Workers' Claims within one week of receiving the notification referred to in
subsection (3) of this section. (emphasis added).
...
(3) Every employer subject to this chapter shall
report to his workers' compensation insurance carrier or the party responsible
for the payment of workers' compensation benefits any work-related injury or
disease or alleged work-related injury or disease within three (3) working days
of receiving notification of the incident or alleged incident. (emphasis added).
KRS 342.040(1) states, in relevant
part, as follows:
(1) Except as provided in KRS 342.020, no income benefits shall
be payable for the first seven (7) days of disability unless disability
continues for a period of more than two (2) weeks, in which case income
benefits shall be allowed from the first day of disability.... In no event
shall income benefits be instituted later than the 15th day after the employer
has knowledge of the disability or death. Income benefits shall be due and
payable not less often than semimonthly. If the employer should terminate, or fail to
make payments when due, the employer shall notify the board of such termination
or failure to make payments and the board shall, in writing, advise the
employee or known dependent of right to prosecute a claim under this chapter.
In his Form 101, Laferty represented
notice was given to his supervisor on the date of the injury. Additionally, in
his February 24, 2014, "Response to Defendant's Motion to Dismiss and
Plaintiff's Motion to Place Claim in Abeyance," Laferty, through counsel,
represented he will testify that on July 21, 2011, the date upon which he
suffered a heat stroke, his supervisor found him incapacitated and took him to
the hospital. Assuming, arguendo,
Laferty is able to introduce evidence, either in the form of testimony and/or
documentation, indicating his supervisor found him incapacitated on July 21,
2011, and took him to the hospital, this is sufficient to trigger the notice
exception put forth in KRS 342.200, as Laferty's "employer, his agent or
representative had knowledge of the injury."
Additionally, should the evidence,
after a reopening of proof time, reveal Laferty missed more than one day of
work as a direct result of the July 21, 2011, incident, UPS was mandated by
statute to report to its workers' compensation insurance carrier "any
work-related injury or disease or alleged work-related injury or disease"
within three working days of receiving notification of the incident or alleged
incident. KRS 342.038(1) and (3). Assuming the evidence, after a reopening of
proof time, reveals Laferty's supervisor took Laferty to the hospital on July
21, 2011, the date UPS received notification of the incident would be July 21,
2011. Thus, UPS' workers' compensation insurance carrier was required to file a
report with the Office of Workers' Claims within one week of receiving
notification from UPS of the incident. KRS 342.038(1).
In addition, pursuant to KRS
342.040(1), should the evidence, after a reopening of proof time, reveal
Laferty missed work due to the work injury for at least seven days following
the July 21, 2011, incident, UPS was mandated by statute to notify the Office
of Workers' Claims of its failure to make voluntary payments. This would have
resulted in the Office of Workers’ Claims advising Laferty, in writing, of his
right to file a claim. KRS 342.040(1).
In his February 24, 2014,
"Response to Defendant's Motion to Dismiss and Plaintiff's Motion to Place
Claim in Abeyance," Laferty represented he was off work for six to seven
weeks following the July 21, 2011, incident. Additionally, the medical records of
Dr. Chipman, dated August 1, 2011, filed in the record by UPS, indicate Laferty
was discharged two days after being
admitted to the hospital following the July 21, 2011, incident, thus indicating
he indeed missed more than one day of work.
In the event, the ALJ finds UPS failed
to fulfill the requirements of KRS 342.038 and KRS 342.040(1), the ALJ shall
determine whether the two-year statute of limitations as set forth in KRS
342.185(1) was tolled as permitted by the applicable case law. See City of Frankfort v. Rogers,
765 S.W.2d 579 (Ky. App. 1988); Newberg v. Hudson, 838 S.W. 2d 384 (Ky.
1992); H.E. Neumann Co. v. Lee, 975 S.W.2d 917 (Ky. 1998).
In H.E. Neumann Co., supra,
the Supreme Court of Kentucky stated as follows:
Therefore,
once the employer herein had notice that claimant had missed more than one day
of work as the result of an alleged work-related injury, it had the duty of
filing a first report of injury with the board within one week. Moreover, when
the employer failed to make voluntary payments after claimant was absent from
work for seven days, it had the duty of notifying the board that no benefits
would be paid so that the board could notify claimant regarding the applicable
statute of limitations. The purpose of the above-referenced statutes is to
advise an injured worker, in writing, of his right to prosecute his claim, and
the time frame in which to do so, and to provide prompt resolution of asserted
work-related injury claims.
Id. at 920.
In H.E.
Neumann Co., supra, the Supreme Court ultimately determined the
two-year statute of limitations in KRS 342.185 had been tolled due to the
employer's failure to follow the notice requirements as set forth in KRS
342.038 and KRS 342.040(1). While this Board is aware that the facts in H.E.
Neumann Co., supra, differ slightly from the facts in the case sub judice, it is clearly relevant and potentially
applicable.
As stated by the Court in Newberg
v. Hudson, supra, "KRS 342.040 guarantees that an employee will
be notified of his or her right to prosecute a claim upon the employer's termination
of compensation payments or upon the employer's failure to make those payments
when due." Id. at 388. As also stated by the Court, whether the statute of limitations was tolled by the "employer's
failure to trigger this notification scheme [under KRS 342.040(1)] when it has
failed to make payments when due will depend upon the facts and circumstances
of each case." Id.
Accordingly,
the February 24, 2014, Order and the April 14, 2014, Order overruling Laferty's
petition for reconsideration are VACATED.
This claim is REMANDED to the ALJ
for a reopening of proof time and entry of a decision resolving the issues of
notice, the applicability of the statute of limitations, and, if appropriate,
the merits of Laferty's injury claim in conformity with the views expressed
herein.
RECHTER,
MEMBER, CONCURS.
ALVEY,
CHAIRMAN, CONCURS AND FILES A SEPARATE OPINION.
CHAIRMAN, ALVEY. I agree
with the majority to the extent the decision of the Administrative Law Judge
should be vacated and the claim remanded for a decision on the merits. However, I disagree with the majority to the
extent it is premature to advise the Administrative Law Judge as to which
statutes are applicable and any result which may be directed. This is particularly true of the advisory
opinion expressed by the majority regarding the application of several statutes
if established by the evidence which is inappropriate.
In essence, the Administrative Law Judge merely issued a summary
judgment which he is not entitled to do.
Our review of this appeal is therefore limited to vacating the
Administrative Law Judge’s order and remanding for him to make a determination
based upon the merits and I respectfully disagree with any additional
determinations made or recommended by the majority.
COUNSEL
FOR PETITIONER:
HON
WILLIAM E BROWN III
100
N MAIN ST STE 2
NICHOLASVILLE
KY 40356
COUNSEL
FOR RESPONDENT:
HON
LANCE YEAGER
10503
TIMBERWOOD CIRCLE #112
LOUISVILLE KY 40223
ADMINISTRATIVE LAW JUDGE:
HON OTTO D WOLFF
IV
8120
DREAM ST
FLORENCE
KY 41042
