Workers’
Compensation Board
OPINION
ENTERED: August 26, 2016
CLAIM NO. 201460001
HILDI L. KORSE PETITIONER
VS. APPEAL FROM HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE
BAPTIST HEALTH LEXINGTON
HON STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Hildi L. Korse (“Korse”)
appeals from the March 25, 2016 Opinion and Order and the May 6, 2016 Order on
Petition for Reconsideration rendered by Hon. Steven G. Bolton, Administrative
Law Judge (“ALJ”) dismissing her claim against Baptist Health Lexington
(“Baptist Health”) for failure to give due and timely notice. On appeal, Korse argues the ALJ erred in
dismissing the claim because she gave notice to an agent of Baptist Health on
the day of the injury. Alternatively,
Korse argues that if there was a delay, it was excusable because the employer
was not prejudiced, an agent had knowledge of the injury, and/or Korse made a
reasonable mistake. Finally, Korse
argues the ALJ ignored the beneficent purpose of the Act. For the reasons set forth herein, we affirm.
Korse testified by deposition on August 6, 2015 and at the
hearing held January 27, 2016. She was
employed by Baptist Health as a registered nurse. She testified she injured her back on
November 3, 2014 when she was assisting a technician in moving a patient. She reported the injury to Lee Ann
Cunningham, the technician, when the injury occurred.
Korse had soreness in her back, but was able to finish her
shift. However, she awoke the next
morning unable to get out of bed. Korse
believed she only had a muscle strain and fatigue. She sought treatment with Dr. Stan Sizemore,
but did not report her injury to Baptist Health until November 17, 2014, when
she notified the HR department. She was
taken off work for two weeks. Korse
admitted that, from the date of injury until November 17, 2014, when she called
the employer’s staffing office to inform them she was not able to work, she
reported she was missing work due to migraines and she was using her FMLA time. Korse never returned to work at Baptist
Health.
Korse was involved in a motor vehicle accident in
2007. At that time her body “ached all
over” but she did not seek medical treatment.
Korse admitted she had numerous health problems prior to the alleged
work injury, including a prior back injury, a rotator cuff tear, fibromyalgia
in her thoracic spine, neck and shoulders, sleep issues, restless leg syndrome,
anxiety and post-traumatic stress disorder.
She has treated for migraines since 2010. Prior to 2014, Korse was taking muscle
relaxers due to the diagnosis of fibromyalgia.
Her fibromyalgia primarily affected her mid back, neck and
shoulders. Korse denied telling anyone
at work that she had back pain prior to the alleged work injury. She acknowledged she had intermittent
sciatic pain beginning in 1996 after a pregnancy, but the problem became
chronic after the November 2014 incident.
Tara Bucher (“Bucher”), director of Building 5 North for
Baptist Health, testified by deposition on September 15, 2015. She supervised the employees in the building,
including Korse. During orientation, the
employees were instructed to notify her, the clinical house supervisor, or
employee health of any work injuries.
Bucher confirmed she was working on November 3, 2014. Korse did not report a work injury on that
date. Bucher first became aware Korse
was claiming a work injury from Human Resources two or three weeks after the
date of the alleged injury. Prior to
November 2014, Korse had used FMLA time for migraines and fibromyalgia not
attributable to any work incident.
Bucher did not recall Korse ever making a specific complaint of back
pain.
Lee Ann Cunningham, a patient care technician for Baptist
Health, testified by deposition on September 15, 2015. Cunningham asked Korse to assist in moving a
patient on November 3, 2014. Korse
helped boost the patient up in bed through the use of a draw sheet. The process took five seconds. Cunningham stated this was the only time
Korse assisted in moving the patient on that occasion. Korse did not indicate she had injured her
back, nor did she make any complaint of soreness in her back. Prior to that day, Korse had declined to
assist moving patients due to soreness in her back and numbness in her arm,
which she never related to her work activities.
The ALJ made the following findings relevant to this
appeal:
Here,
it is clear that the Plaintiff did not give prompt notice of her alleged
11/3/2014 injury, pursuant to the requirements of KRS 342.185(1). She admits
that the first notice she gave to Defendant/Employer was on 11/17/2014,
approximately two weeks after the alleged incident occurred.
Instead
of informing Ms. Tara Butcher [sic], who was her supervisor, on the day of the
incident, or the day after when she alleges that she could not get out of bed,
Ms. Korse waited until 11/17/2014 to notify Human Resources, which is not the
appropriate procedure for employees to give notice of their work-related
injuries.
However,
even more bizarre is that Ms. Korse did inform her employer when her doctor
ordered her off work for two weeks, but not only failed to mention the alleged
work injury, but told whoever she contacted that she was off due to her
fibromyalgia (migraines) and asked to be carried on Family Medical Leave Act
status.
The
testimony of Ms. Butcher [sic] and the aide who worked with Plaintiff on
11/3/2014, Ms. Cunningham, indicates that the Plaintiff never reported or made
any complaints to them of any alleged back injury. Plaintiff’s supervisor did not find out about
the alleged 11/3/2014 incident until several weeks after its alleged
occurrence, from HR. Even if Ms. Korse’
notification to HR were considered proper procedure, it was still two weeks
after the alleged occurrence and thus not timely pursuant to KRS 342.185(1).
Ms.
Korse’s testimony indicates that she knew right away that she hurt her back,
and that she “could not get out of bed” the next day, yet she indicated to the
staffing office of Defendant/Employer that her migraines were the reason that
she was missing work.
If
in fact, by 11/4/2014, Ms. Korse could not even get out of bed due to her back
pain, it was practicable for her to notify Defendant/Employer of her alleged
work-related injury. She failed to do so
and she has not produced any valid reason as to why it was not practicable for
her to give notice of her alleged back injury at that time.
. . . .
Here,
however, Ms. Korse ignored several opportunities to give the employer due and
timely notice of her alleged injury, but simply failed to do so for no
sufficient reason. In fact, if one
believes her testimony, she actually lied to the employer as to the reason for
her absence, although she articulated no reason as to why she would do so.
Due
to the lack of timely notice and the inexcusable and unreasonable delay in
reporting the alleged incident on the part of Korse, her employer was unfairly
prejudiced through loss of the ability to conduct a prompt investigation of
Plaintiff’s alleged work-related injury.
As such, I conclude that the issue of failure to give due and timely
notice of her alleged injury is sufficient reason alone to dismiss Ms. Korse’s
claim pursuant to KRS 342.185(1).
Korse filed a petition for reconsideration making
essentially the same arguments she raises on appeal. In his May 6, 2016 Order on Petition for
Reconsideration, the ALJ indicated he had considered all of the evidence and
made the factual determination that Korse ignored several opportunities to
provide prompt notice, and provided no sufficient reason for such failure. The ALJ further noted Korse lied to the
employer regarding the reason she was missing work for the two weeks following
the alleged injury. The ALJ noted he
felt the employer was unfairly prejudiced through the loss of the ability to
conduct a prompt investigation of the alleged work-related injury. The ALJ denied the petition for
reconsideration as an impermissible re-argument of the merits of the
claim.
On appeal, Korse argues the ALJ erred in finding notice was
not given promptly because she gave notice to an agent of the employer on the
date of injury. She contends she
informed Ms. Cunningham, the tech she was assisting at the time of the
injury. Alternatively, she argues the
notice given on November 17, 2014 was timely.
She contends that notice two weeks after the injury would be sufficient
to enable the employer to provide prompt medical treatment and would have
allowed the employer to investigate the incident. If it is determined there was a delay of two
weeks in giving notice, Korse argues the delay was excusable because Baptist
Health was not prejudiced by the delay.
Korse again asserts Baptist Health had knowledge of the injury through
its agent, Ms. Cunningham. Additionally,
she contends Baptist Health had knowledge that something was wrong when she
failed to show up for work. Korse states
she told the employer she was not feeling well.
She notes she is not a doctor and does not have the ability to diagnose
an occupational injury. She told the
staffing office she was sick. She
contends she was mistaken as to the reason she was off work and could reasonably
believe her fibromyalgia was the reason she was feeling sick. Finally, she argues the ALJ failed to
consider the beneficent purpose of the Act and did not liberally construe the
term “as soon as practicable”.
As the claimant in a workers’ compensation proceeding, Korse had the burden of proving each of the essential elements
of her cause of action, including the fact
she provided due and timely of her work-related injury to Baptist Health. Snawder v.
Stice, 576 S.W.2d 276 (Ky. App. 1979). Because she was unsuccessful
in that burden, the question on appeal is whether the evidence compels a
different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735
(Ky. App. 1984). “Compelling
evidence” is defined as evidence that is so overwhelming, no
reasonable person could reach the same conclusion as the ALJ. REO
Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985)
superseded by statute on other grounds as stated in Haddock v.
Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).
KRS 342.185 requires notice of a
work-related accident be given to the employer “as soon as practicable after
the happening thereof.” KRS 342.190
requires notice be provided in writing, and must include the time, place,
nature and cause of the accident as well as the nature and extent of injury. KRS 342.200, however, provides:
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.
Thus, a delay in giving notice can be
excused if the employer, his agent, or representative had knowledge of the
injury. Additionally, a delay in giving
notice may be excused due to mistake or other reasonable cause.
The Kentucky
Supreme Court held in Granger v. Louis Trauth Dairy,
329 S.W.3d 296 (Ky. 2010), the ALJ was correct in dismissing a claim based upon
inadequate notice, and affirmed the ALJ’s refusal to find an excusable delay in
reporting the injury pursuant to KRS 342.200. The Court noted the
purpose of the notice requirement is threefold: to enable an employer to
provide prompt medical treatment in an attempt to minimize the worker's
ultimate disability and the employer's liability; to enable the employer to
investigate the circumstances of the accident promptly; and to prevent the
filing of fictitious claims. The Court further noted that although
a lack of prejudice to the employer excuses an inaccuracy in complying
with KRS 342.190, it does not excuse a delay in giving notice. Having failed to convince the ALJ that he gave notice of the accident and resulting injury “as soon as
practicable”, his burden on appeal was to show the decision
to be unreasonable under the circumstances because overwhelming evidence
compelled a favorable finding.
While Korse has identified evidence supporting a different
conclusion, there was substantial evidence presented to the contrary. Testimony was conflicting as to whether Korse
informed Ms. Cunningham of the alleged injury.
The ALJ found Ms. Cunningham’s testimony more persuasive and determined
Korse did not provide notice on the date of the accident. He acted well within his discretion in doing
so. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).
Korse admits she did not tell the staffing office in the
two weeks following the alleged injury that she had sustained a work
injury. The evidence does not compel a
finding notice was given prior to November 17, 2014 or that the employer had
knowledge of a work injury prior to that date.
The ALJ acted within his discretion to determine which evidence to rely
upon, and it cannot be said the ALJ’s conclusions are so unreasonable as to
compel a different result. Ira A.
Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
There is no specific
timeframe for satisfying the notice requirement and the ALJ has discretion in
making the determination of whether notice was given “as soon as practicable”
based on the specific circumstances of the case. Newberg v. Slone, 846 S.W.2d 694 (Ky. 1992). As the ALJ noted, Korse testified she knew
she had sustained a work injury on November 3, 2014. Substantial evidence supports the ALJ’s
conclusion it was practicable for Korse to give notice of the injury by
November 4, 2014 when she could not get out of bed because of her back
condition. The ALJ determined notice two
weeks after the incident is not “as soon as practicable” and substantial
evidence supports that finding.
Therefore Korse had the burden of showing the delay was in some way
excusable.
The ALJ determined
Korse offered no valid explanation as to why she did not report the injury
sooner than November 17, 2014. She never
argued to the ALJ, as she does on appeal, that she was mistaken as to the
reason she was taken off work following the incident. Again, it is important to note Korse
testified she knew immediately she had hurt herself at work. She admitted she told the staffing office
that she was off for migraines and she was using FMLA time.
The ALJ concluded
Korse’s delay in giving notice unfairly prejudiced the employer through loss of
the ability to promptly investigate the alleged injury. Korse is essentially asking the Board to
re-weigh the evidence and substitute our view for that of the ALJ on the
factual determination of whether the delay prejudiced the employer. We may not do so. The evidence falls far short of compelling a
finding notice was given in a timely manner or that any delay in providing
notice was excusable.
Finally, we note the
ALJ was well aware of precedent stating the statute is to be construed
liberally in favor of the employee to effectuate the beneficent purposes of the
Act. In fact, the ALJ expressly stated
as much and cited Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814 (Ky.
1968) for that proposition.
Accordingly, the March 25, 2016 Opinion and Order and the May 6, 2016 Order on Petition for Reconsideration rendered by Hon. Steven G. Bolton, Administrative Law Judge, are hereby AFFIRMED.
STIVERS, MEMBER, CONCURS.
ALVEY,
CHAIRMAN, NOT SITTING.
COUNSEL
FOR PETITIONER:
HON JAMES R MARTIN II
333 W VINE ST #1200
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON GUILLERMO A CARLOS
444 W SECOND ST
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN G. BOLTON
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601