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RENDERED: AUGUST 19, 2016; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
RAYMOND TUNGETT APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO: WC-14-01672
IRVING
MATERIALS, INC.; HON. STEVEN
G. BOLTON, ADMINISTRATIVE LAW JUDGE;
and WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
REVERSING
AND REMANDING
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BEFORE: KRAMER, chief JUDGE; D. LAMBERT AND stumbo, JUDGES.
D. LAMBERT, JUDGE:
Raymond Tungett appeals the August 28, 2015 decision of the Workers’
Compensation Board (the Board) affirming the decision of Hon. Steven G. Bolton,
Administrative Law Judge (ALJ), to dismiss his workers’ compensation
claim. The ALJ concluded that Tungett
failed to adequately notify his employer, Irving Materials, Inc. (Irving), that
he had suffered a work-related injury.
For the following reasons, we reverse the Board’s decision and remand
for the ALJ to enter an award based on findings consistent with this opinion.
I. BACKGROUND
Tungett
began driving a concrete truck for Irving in 2011. On Saturday, May 31, 2014, he allegedly
experienced a pop in his back while attempting to pry setting concrete loose
from the truck’s chute with a 2x4.
During the workers’ compensation claim process, Tungett and Irving’s
employees, including his immediate supervisor, provided conflicting testimonies
as to the events that followed the injury.
According to Tungett’s deposition and final
hearing testimony, he called his supervisor, Kevin Fernander, after the
incident and reported his injury.
Tungett further testified that he was off work Sunday, but returned to
work the following Monday. That day, he
told his co-workers that his back was hurting before cleaning the chutes of his
truck. While cleaning the chutes,
Tungett also claimed that he felt pain in his low back but did not discuss that
incident with anyone. Tungett stated
that he missed work on Tuesday and Wednesday and presented to immediate-care
facilities on both days for medical treatment.
The physician at the immediate-care facility Tungett visited on Tuesday
did not see Tungett after learning the injury was work-related. On Wednesday, however, Tungett was able to
receive treatment after falsely informing a second immediate-care facility that
his condition was not work-related.
According to Tungett, he returned to work on Thursday and aggravated his
back when he fell off a truck. Tungett
also called the dispatch supervisor and told him he was in “bad shape” and could
not work that day. Tungett paid for his
medical treatment with private health insurance until his coverage lapsed.
Fernander
also testified by deposition and at the final hearing before the ALJ. Fernander stated that he received a call from
Tungett on the day of the alleged injury, but the subject of the conversation
was the concrete setting in his truck chute.
According to Fernander, Tungett did not complain about his back or
report any injury during their conversation.
Fernander also stated that Tungett did not report an injury during their
next conversation, which took place on the following Tuesday when Tungett
called to tell Fernander that he would not be reporting to work that day. Fernander did confirm that on the Thursday
following the alleged injury, he learned from the plant dispatcher that Tungett
had fallen from the truck onto his back.
Irving’s
safety manager, Mike Tolin, also testified by deposition and during the
hearing. Tolin stated that he first
learned of Tungett’s alleged injuries on June 5, 2014, from a human resource
representative who had been contacted by a medical provider regarding Tungett’s
alleged workplace injury. Tolin further
stated that he asked Tungett to meet with him that day to discuss the injury,
but Tungett did not meet with him until June 9, 2014. Tolin maintained that Tungett did not explain
the specific cause of his injury during the meeting.
Billing
statements from two immediate-care facilities indeed indicated that Tungett
sought medical treatment on the Tuesday and Wednesday that followed his alleged
injury. Tungett sought to have his
treatment billed to Irving during the Tuesday visit. However, no mention of Tungett’s utilization
of a 2x4 to pry concrete loose from the chute occurred until a June 12, 2014
diagnosis from Dr. Christopher Combs.
Subsequent independent medical evaluations further revealed that Tungett
suffered a back condition.
After
hearing the evidence and concluding that Tungett had failed to comply with his
statutory obligation to timely notify his employer of his work-related injury,
the ALJ denied Tungett’s claim. The ALJ
also denied Tungett’s subsequent motion for reconsideration, finding that the
petition was an attempt to re-litigate the merits of the claim. Tungett then appealed to the Board, which
affirmed the ALJ’s application of the law to its factual findings. This appeal followed.
II. STANDARD OF REVIEW
The
role of this Court in reviewing a decision of the Board is to correct the
decision only when the Board appears to have overlooked or misconstrued
controlling law “or committed an error in assessing the evidence so flagrant as
to cause gross injustice.” Pike County Bd. of Educ. v. Mills, 260
S.W.3d 366, 368 (Ky. App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky.1992)).
Furthermore, the burden is on the claimant to prove every element of his claim.
Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984).
III. DISCUSSION
On
appeal, Tungett first argues that the ALJ misconstrued relevant provisions of
the Kentucky’s Workers’ Compensation Act.
Tungett then argues that the ALJ committed reversible error in finding
that he did not timely notify his employer of his workplace injury. In conjunction with these arguments, Tungett
asserts that Irving learned of his injury shortly after his accident by the
clear evidence contained in the record.
For the following reasons, we agree with Tungett’s position.
Under
Kentucky Revised Statutes (KRS) 342.185(1), an employee must give his employer
notice of a work-related injury “as soon as practicable after the happening
thereof.” The notice must be in writing
and provide the time, place, nature and cause of the accident as well as the
nature and extent of the injury. See KRS 342.190. This way the employer can (1) provide prompt
medical treatment in an attempt to minimize the worker's ultimate disability
and the employer's liability, (2) make a prompt investigation of the circumstances
of the accident, and (3) prevent the filing of fictitious claims. Trico County Development & Pipeline v. Smith, 289 S.W.3d 538,
542 (Ky. 2008). However,
[t]he 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.
KRS
342.200.
Thus, a delay in giving notice may be excused if the employer, his
agent, or representative had knowledge of the injury.
Here, although there was conflicting evidence as
to when Tungett provided notice, the employer knew of the work-related injury
as early as June 5, 2014, when Tolin learned that Tungett attempted to have
Irving pay for his medical treatment.
Tolin even called Tungett in for meeting on that day to discuss the
accident. Accordingly, Tungett was not
required to provide further notice as a matter of law, and the ALJ erred in
finding Tungett gave untimely notice.
This is so notwithstanding evidence that Irving did not learn the exact
circumstances surrounding the accident for another week. The delay had no prejudicial effect for
Irving, as Tungett received prompt medical treatment for his non-emergency
injury and the uncontested subject matter of Tungett’s post-injury conversation
with Fernander—namely that concrete was hardening in the truck
chute—corroborates Tungett’s version of events for any investigative
purposes. The Board’s decision is thus
reversed, and the matter is remanded to the ALJ to fashion a benefit award.
STUMBO, JUDGE, CONCURS.
KRAMER, CHIEF JUDGE, DISSENTS AND WILL NOT FILE A SEPARATE OPINION.
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BRIEF FOR APPELLANT: Nicholas Murphy Louisville, Kentucky
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BRIEF FOR APPELLEE, IRVING MATERIALS, INC.: Douglas A. U’Sellis Louisville, Kentucky
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