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200-CA-00(NP)

RENDERED:  MARCH 20, 2015; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2014-CA-000746-WC


 

 

TONY GRAY                                                                              APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-13-01169

 

 

 

JAMES RIVER COAL COMPANY;
HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD                                                         APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  CLAYTON, MAZE, AND TAYLOR, JUDGES.

TAYLOR, JUDGE:  Tony Gray petitions this Court to review an Opinion of the Workers’ Compensation Board rendered April 2, 2014, affirming the Administrative Law Judge’s dismissal of his workers’ compensation claim as barred by the statute of limitations. 

                   On August 2, 2013, Gray filed a workers’ compensation claim alleging that he suffered a work-related knee injury on August 11, 2011, while employed by James River Coal Company.  James River filed a motion to dismiss arguing that Gray’s claim was time-barred by the two year statute of limitations in Kentucky Revised Statutes (KRS) 342.185(1).  James River points out that Gray actually sustained the work-related knee injury on August 1, 2011, rather than August 11, 2011.  Under KRS 342.185(1), James River argued that Gray filed his claim over two years after the injury, and the claim was untimely.  In Gray’s response, he admitted that the injury date was August 1, 2011, but argued that the statute of limitations (KRS 342.185(1)) was tolled due to James River’s failure to report his injury per KRS 342.038 and to report that it did not pay temporary total disability (TTD) benefits per KRS 342.040(1).  

                   By order rendered October 17, 2013, the ALJ concluded that James River did not violate KRS 342.038 or KRS 342.040(1); thus, the statute of limitations (KRS 342.185(1)) was not tolled.  Therefore, the ALJ dismissed Gray’s claim as time-barred.  Gray then sought review with the Board.  By Opinion rendered April 2, 2014, the Board agreed with the ALJ that Gray’s claim was time-barred under KRS 342.185(1) and affirmed the dismissal of the claim.  This review follows.

                   To begin, our review of an opinion of the workers’ compensation board is limited.  We only reverse the Board’s opinion where “the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause a gross injustice.”  W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).  In reviewing the Board’s opinion, we necessarily look to the ALJ’s opinion.  Relevant to this appeal, the ALJ’s findings of fact may only be disturbed if not supported by substantial evidence.  And, the ALJ, as fact-finder, possesses the sole discretion to judge the credibility of testimony and weight of evidence.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).

                   Gray contends that the ALJ erroneously dismissed his claim as time-barred under the two year statute of limitations found in KRS 342.185(1).  Gray admits that he filed the claim outside the two-year limitation period but maintains that James River is equitably estopped from raising the statute of limitations’ defense by its noncompliance with the notifications mandates of KRS 342.040(1) and KRS 342.038(1).  We will address each statute separately. 

                   KRS 342.040(1) provides:

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.  All income benefits shall be payable on the regular payday of the employer, commencing with the first regular payday after seven (7) days after the injury or disability resulting from an occupational disease, with interest at the rate of twelve percent (12%) per annum on each installment from the time it is due until paid, except that if the administrative law judge determines that a denial, delay, or termination in the payment of income benefits was without reasonable foundation, the rate of interest shall be eighteen percent (18%) per annum.  In no event shall income benefits be instituted later than the fifteenth 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'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.

 

                   Under KRS 342.185(1), a claim must be filed either within two years from the date of the work-related injury or within two years of the last payment of voluntary income benefits, whichever is the later date.  And, KRS 342.040(1) requires an employer to notify the commissioner of its termination of payment of voluntary income benefits or of its failure to make payment of voluntary income benefits.  If an employer fails to give notification to the commissioner as required by KRS 342.040(1), the employer “is not permitted to raise a limitations defense because its action effectively prevents the commissioner from complying with its duty . . . to notify the worker of his right to prosecute a claim and of the applicable period of limitations.”  Patrick v. Christopher East Health Care, 142 S.W.3d 149, 151-52 (Ky. 2004).  Under KRS 342.040(1), the employer’s duty to notify the commissioner is triggered when the employee misses more than seven days of work.  H.E. Neumann Co. v. Lee, 975 S.W.2d 917 (Ky. 1998).

                   In the case sub judice, the evidence indicates that Gray only missed, at best, six days of work – June 28, July 1, July 2, July 3, and July 5, 2013.  Hence, Gray was not entitled to income benefits under KRS 342.040(1), and James River breached no duty of notification thereunder.

                   Next, we address the contention that James River breached its notification duty under KRS 342.038(1) and is estopped from raising the statue of limitations as a defense.  In particular, Gray argues:

[A]s KRS 342.038 states, an employer must inform the Department of a work injury which causes its employee to miss more than one (1) day of work within seven (7) days of the injury or within seven (7) days of learning of the injury.  [James River] in the case sub judice did not file a first report of injury for the August 1, 2011[,] injury until September 10, 2013, well beyond the one (1) week statutory notification requirement, despite [Gray] missing work for more than one (1) day in June and July 2013.  Again, this failure by [James River] to comply with the notice requirements of KRS 342.038 resulted in a tolling of the limitations period found in KRS 342.185. 

 

Gray’s Brief at 8 (citations omitted).

                   We view the Kentucky Supreme Court’s opinion in J & V Coal Company v. Hall, 62 S.W.3d 392 (Ky. 2001) as dispositive.  Similar to the facts of this case, the Kentucky Supreme Court noted that the claimant failed to timely file his workers’ compensation claim and argued that the employer was estopped from raising the statutes of limitations defense because the employer failed to file the requested notice under KRS 342.038(1).  The Supreme Court held that the employer was not estopped from raising the statute of limitations defense and reasoned:

[T]he employer paid no voluntary income benefits, and the claimant did not miss work due to his injury for more than two weeks at any time before the period of limitations expired.  Thus, even if the employer had reported the claimant's injury as was required by KRS 342.038(1), he would not have been entitled to notice concerning his right to prosecute a claim as set forth in KRS 342.040(1).  Under those circumstances, we are not persuaded that the facts of this case compel the application of an equitable remedy in order to toll the period of limitations.

 

J & V Coal Co. v. Hall, 62 S.W.3d 392, 395 (Ky. 2001).

                   Likewise, as hereinbefore determined, James River was not required to give notice under KRS 342.040(1); thus, under the facts of this case, James River’s failure to provide notice under KRS 342.038(1) will not “compel application of an equitable remedy in order to toll the period of limitations.”  Hall, 62 S.W.3d at 395.

                   Considering the record below, we are unable to conclude that the ALJ erred by dismissing Gray’s claim as time-barred under KRS 342.185(1) and conclude the Board properly affirmed the dismissal of the claim.

                   For the foregoing reasons, the Opinion of the Workers’ Compensation Board is affirmed.

                   ALL CONCUR.

 

BRIEF FOR APPELLANT:

 

Adam L. Towe

London, Kentucky

 

BRIEF FOR APPELLEE JAMES RIVER COAL COMPANY:

 

Timothy C. Feld

Lexington, Kentucky