Workers’
Compensation Board
OPINION
ENTERED: February 5, 2016
CLAIM NO. 201379244
BLUEGRASS OAKWOOD PETITIONER
VS. APPEAL FROM HON. WILLIAM RUDLOFF,
ADMINISTRATIVE LAW JUDGE
DYLAN MULLIGAN
HON. WILLIAM RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Bluegrass Oakwood, Inc. appeals
from the July 8, 2015 Opinion and Order and the August 11, 2015 Order on
Petition for Reconsideration rendered by Hon. William J. Rudloff,
Administrative Law Judge (“ALJ”). The
ALJ determined Dylan Mulligan (“Mulligan”) suffered work-related injuries to
his back and left leg on April 10, 2013 and April 29, 2013, and awarded
temporary total disability benefits, permanent partial disability benefits, and
future medical benefits. Bluegrass
Oakwood appeals the determination that timely notice was provided following the
injury. For the reasons set forth
herein, we vacate and remand for further findings of fact.
Mulligan alleged he
suffered two distinct injuries in April 2013 while employed as a residential
assistant at Bluegrass Oakwood. The
first occurred on April 10, 2013 when Mulligan prevented a patient from falling
while in the bath. He immediately felt a
pull in his back, which he believed would resolve. He visited South Fork Medical Clinic on April
17, 2013 with complaints of hip pain, though he reported the pain began after
playing basketball.
About two weeks later,
on April 29, 2013, Mulligan was attempting to prevent a patient from
falling. He was pulled down and felt
another “pop” in his back. Mulligan continued
to work until the pain increased to an intolerable level. He visited the Lake Cumberland Regional
Hospital emergency room on May 26, 2013 and reported an injury while lifting a
patient. He was given work restrictions
which he provided to his employer on May 31, 2013.
Before the ALJ,
Bluegrass Oakwood argued it had not been provided notice “as soon as
practicable after the happening thereof”, as required by KRS 342.185. It presented the deposition testimony of
Christy Underwood, a human resources manager at Bluegrass Oakwood. Ms. Underwood testified employees are trained
to immediately report workplace injuries.
She also stated Mulligan told her the April 10, 2013 injury occurred
when he was picking up his child at home.
She also indicated Mulligan was unable to remember the name of the
patient he was assisting when he was injured on April 10, 2013. Ms. Underwood noted Bluegrass Oakwood retains
video footage for thirty days, which would have been available had Mulligan
more timely reported the alleged incidents.
Josh Wilson was
Mulligan’s supervisor at the time of the injury. Mr. Wilson stated that, when Mulligan first
reported the injury, he attributed his back pain to non-work-related events
such as lifting a small child and a basketball game. Mulligan was also unable to pinpoint the
exact dates of the injuries when he reported them to Mr. Wilson. Mr. Wilson testified his investigation of the
alleged injuries was hampered by the delay in reporting.
Mulligan testified he
did not immediately report the first injury because he believed it would
resolve. He stated he delayed in
reporting the second injury because he feared he would be fired.
The ALJ ultimately
determined Mulligan had provided timely notice.
He first cited the requirements of KRS 342.185(1), and then to Marc
Blackburn Brick Company v. Yates, 424 S.W.2d 814 (Ky. App. 1968). Yates stands for the proposition that
a delay in notice may be excusable when the circumstances indicate the claimant
believed the injury would resolve without medical care. The ALJ then provided the following analysis:
In
the case at bar, Mr. Mulligan stated that he was scared to report his injury to
the employer because he had heard that if you get hurt at work and report it,
the employer will find a reason to fire you.
He stated that he kept his mouth shut because he thought it was just a
simple sprain. The plaintiff stated that
his job with Oakwood was the best job he could find to support his family and
that he did not want to lose his job. I
note that the plaintiff’s second injury on April 29, 2013 was witnessed by
another employee. I make the
determination that there was no prejudice here to the defendant due to the
plaintiff’s delay in giving notice to the employer, which occurred on May 31,
2013, well within the 66-day delay in the Marc
Blackburn case. I make the
determination that the plaintiff’s May 31, 2013 notice was timely under KRS
342.200 and the Marc Blackburn
case.
In a petition for
reconsideration, Bluegrass Oakwood requested additional findings of fact, which
the ALJ denied. On appeal, Bluegrass
Oakwood again argues the ALJ’s analysis is incomplete. We agree.
KRS 342.185 requires
notice of an injury be provided to the employer “as soon as practicable” after
the happening thereof. The ALJ’s
analysis provides no cogent discussion of whether Mulligan provided notice “as
soon as practicable”. Though the ALJ
summarily concluded Bluegrass Oakwood was not prejudiced, again without any
significant discussion, that determination is irrelevant at this juncture. Lack of employer prejudice may excuse an
employee’s inaccuracy in complying with the notice requirements of KRS 342.190,
but does not waive a delay in providing notice.
Trico County Development & Pipeline v. Smith,
289 S.W.3d 538, 542 (Ky. 2008). See also Granger v. Louis Trauth Dairy, 329 S.W.3d 296 (Ky. 2010). Furthermore,
we note the ALJ failed to acknowledge or discuss the deposition testimony of
Ms. Underwood and Mr. Wilson. In short,
the analysis provided by the ALJ fails to demonstrate a clear understanding of
the applicable law, does not indicate consideration of all relevant evidence,
and inadequately sets forth the basis of the decision. Kentucky Supreme Court
in New Directions Housing Authority v. Walker, 149 S.W.3d 354, 358 (Ky.
2004).
Therefore, this claim
must be remanded for further findings of fact concerning the issue of timely
notice. A satisfactory discussion will
address the testimony provided by Ms. Underwood, Mr. Wilson and Mulligan, and
will squarely determine whether Mulligan provided notice “as soon as practicable.” We direct no particular result.
Accordingly, the July
8, 2015 Opinion and Order and the August 11, 2015 Order on Petition for
Reconsideration rendered by Hon. William J. Rudloff,
Administrative Law Judge are hereby VACATED. This claim is REMANDED to the ALJ for further findings of fact in accordance with
the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON ROBERT FERRERI
614 W MAIN ST #5500
LOUISVILLE, KY 40202
HON TAYLOR A MAYER
614 W MAIN ST #5500
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON MARK D KNIGHT
PO BOX 49
SOMERSET, KY 42502
CHIEF ADMINISTRATIVE
LAW JUDGE:
HON ROBERT L. SWISHER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601