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January 15, 2016 201285818

Commonwealth of Kentucky 

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

 

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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