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Workers’
Compensation Board
OPINION ENTERED: February 24, 2017
CLAIM NO. 201297004
HOPKINS CO COAL LLC PETITIONER
VS. APPEAL FROM HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
DENNIS JARED NOLEN,
HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
and HON J. GREGORY ALLEN,
FORMER ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Hopkins County Coal, LLC
(“Hopkins”) appeals from the August 7, 2015 Interlocutory Opinion, Award and
Order rendered by Hon. J. Gregory Allen, Administrative Law Judge (“ALJ Allen”),
and the October 14, 2016 Opinion, Award and Order rendered by Hon. R. Roland
Case, Administrative Law Judge (“ALJ Case”). On appeal, Hopkins argues the ALJ’s findings
of sufficient notice and a work-related injury are not supported by substantial
evidence. For the reasons set forth
herein, we affirm.
Dennis Jared Nolen (“Nolen”) filed his claim on December 3,
2013 alleging he sustained a low back injury on January 9, 2012 while loading
mining materials into the bucket of his scoop.
The claim was bifurcated on the threshold issues of whether Nolen sustained
a work-related injury as defined by the Act, and whether timely notice was
given. ALJ Allen issued an Interlocutory
Opinion, Order and Award on August 7, 2015.
Because Hopkins did not file a petition for reconsideration, the facts
as found by the ALJ are conclusive. The
ALJ thoroughly condensed the salient facts in his analysis and findings, and
therefore we cite it herein:
The
evidence on these issues is diverse.
Plaintiff contends that on January 9, 2012 he was unloading roof bolt
glue from his scoop when it started to fall and he caught it causing the onset
of back pain. Plaintiff conceded that on
the date of alleged injury he did not report the incident to a supervisor and
did not complete a formal accident report with the defendant until January 17,
2012. However, he testified that he did
call the employer on January 10, 2012 and informed them his back was hurt and
he would not be in to work. The
Plaintiff sought medical treatment on June [sic] 11, 2012 with Dr. Kristy
Garrett. The history given to Dr.
Garrett was “D.J. hurt his back; he lifted a heavy object on Tuesday and said
he has had progressive pain in the lower lumbar area since that time.” Plaintiff testified that the recitation of an
injury occurring on Tuesday was a mistake as to the date of the
occurrence. He also testified that he
did not inform the defendant or Dr. Garrett of the source of the back pain
because he was concerned that reporting the incident would land his name on the
“wall of shame” for reporting a work accident and causing his co-workers and
himself to lose a safety bonus. He also
contends that he was unsure of the extent of the condition as he had previous
back problems and surgery but that when he received confirmation that his
condition was serious and due to a new condition, he immediately informed the
defendant to notify them of the situation and completed the accident
report. Plaintiff vehemently denied that
his current condition was due to lifting a television at home on October [sic]
10, 2012.
On
the contrary, the defendant argues that the company policy is to report any
accident to a supervisor by the end of the shift, regardless of perceived
severity. The defendant points to the
testimony of Leslie Patterson who spoke to the plaintiff by phone on January
10, 2012 and was purportedly told that plaintiff would not be at work due to
back pain while lifting a television at home.
Mr. Patterson then recorded this statement on a blackboard verbatim in
the company office. He testified that he
made another notation the next day when plaintiff called to notify the
defendant he would be off work and a third day when plaintiff called and
indicated he was having an MRI performed.
Adding
to the diverse testimony is some self-contradictory statements of both parties
and their witnesses. This leads the ALJ
to propound several queries of his own: if plaintiff believed he had strained
his back on January 9, 2012 but feared he would cost his coworkers a safety
bonus, why did he tell anyone about the condition? Eddie Perry, a co-worker, credibly testified
under subpoenaed deposition that plaintiff told him he had injured his back
picking up roof bolting glue for delivery to Mr. Perry and that he was unable
to unload it. It would seem that if
plaintiff did not want to announce a work-related injury he would not have told
Mr. Perry of the lifting incident.
Likewise,
why was plaintiff unable to give Dr. Garrett a history of lifting a “heavy
object on Tuesday” when plaintiff described his accident in his deposition and
final hearing as simply feeling pain while catching falling glue sticks and not
lifting a single solitary object?
However,
contradictory testimony also affects the defendant. The primary witness for the defendant is
Leslie Patterson. Mr. Patterson, as
noted above, testified that after he received calls from plaintiff indicating
he had injured himself in a non-work-related television lifting incident at
home he immediately walked to a black board and made a verbatim notation of
such. However, when deposed, on
cross-examination, Mr. Patterson indicated that when someone called in sick or
was to be out for plausibly non-work-related conditions that the absence was
“just put … on a time sheet that they called in. Personal day.
Got a headache, like that.”
(Deposition of Leslie Patterson, pg. 16).
This
is intriguing to the ALJ in that both parties testified that a blackboard was
used by the defendant to note workers that had been injured on the job. Did Mr. Patterson write plaintiff’s name on a
blackboard reserved for miners with lost time work-related injuries? If yes, why did he do so if it was clear and
unequivocal to Mr. Patterson that the plaintiff told him his back condition was
due to lifting a television at home? In
all non-work-related absences, Mr. Patterson (as noted above) only indicated
absences on “time sheets.” What made
this situation so special that publication of the purported contents of
plaintiff’s telephone call was written on a blackboard?
Moreover,
there is no question plaintiff reported a work-related low back injury to the
defendant on January 17, 2012 and the accident investigation report was filed
into evidence. The form specifically
diagrams the alleged accident and provides a detailed narrative and times and
dates of occurrence. The report was
signed by the plaintiff and “A. Sexton” who was identified as a direct
supervisor of the plaintiff.
Clearly,
the defendant is duty bound to complete an accident report for the plaintiff
and the ALJ commends the thoroughness of the report and the fact it was
accepted by the defendant. However, the
ALJ is puzzled as to why there was no addendum or statement by the defendant
regarding possible questions the defendant may have had regarding the etiology
of the alleged back pain and injury?
Moreover, Mr. Patterson testified that on the section foreman’s reports
completed by Mr. Sexton that plaintiff was absent on January 10th,
11th, and 12th because he had hurt his back at home. It would seem reasonable to the ALJ that
given the purported unequivocal knowledge of Mr. Patterson (the supervisor of
Mr. Sexton who completed the report) and Mr. Sexton regarding the
non-work-relatedness of plaintiff’s condition and the fact it was clearly noted
on the blackboard that the complaints of back pain accompanied a home injury
while lifting a television, that at a minimum such contradictory
statements/information would be noted either on the accident investigation form
itself or in an addendum to same. However,
they were not.
Essentially,
the ALJ finds the testimony of the plaintiff and Mr. Patterson to be equivocal
in probative value.
As
regards the plaintiff’s first medical treatment with Dr. Garrett, it seems that
plaintiff clearly had the onset of a new type of pain after some type of traumatic
experience. Dr. Garrett indicated in a
letter of May 5, 2014 that plaintiff’s complaints were not present in the days
and months leading up to January 2012 although she did not issue an opinion as
to the work-relatedness of the onset of these conditions.
In
the end, a determination on whether the plaintiff has carried his burden on the
issue of whether he sustained a work-related injury as defined by the Act comes
down to the credibility of plaintiff’s testimony and corroboration testimony of
Mr. Eddie Perry.
Mr.
Perry was subpoenaed to testify in this matter.
He denied any pre-deposition conversations with either the plaintiff or
counsel. He testified that he had
previously held the public office of Sheriff.
Mr. Perry’s testimony, in the determination of the ALJ, was without bias
or interest in the case as he was no longer employed by the defendant and was
not a close friend with the plaintiff in social settings.
Mr.
Perry testified that in January 2012 plaintiff was operating a scoop and as a
part of his job duties was required to obtain and load his scoop for transport
to Mr. Perry’s roof bolter glue, pins and plates. Upon return to the roof bolter plaintiff told
Mr. Perry and a coworker Ryan Stanley, that “you’re going to have to get the
glue and ropes off the pinner. I hurt my
back. I can’t lift anymore.” (Deposition of Eddie Perry, pg. 5). Mr. Perry denied the plaintiff told him
anything about purportedly lifting a television at home and injuring his
back. Instead, Mr. Perry reiterated that
“he just told me he hurt his back—hurt his back picking that glue and stuff up
and that we needed to go around there and get it off scoop because he normally
unloads the – ropes and stuff on the side of the rib and pushes the pins out
and we usually get the glue.”
(Deposition of Eddie Perry, pgs. 7-8).
Mr. Perry’s testimony did not waiver [sic] on cross-examination.
Therefore,
after consideration of the entirety of the evidence, the ALJ finds that the
plaintiff did sustain a work-related injury as defined by the Act to his lumbar
spine on January 9, 2012 when lifting, loading or unloading of bolting supplies
while employed by the defendant. The ALJ
makes no particular finding regarding the testimony of Mr. Patterson regarding
the etiology of plaintiff’s back pain.
The ALJ simply finds that the corroborative testimony of Eddie Perry
more probative when considering the plaintiff’s version of events from January
9, 2012 and thereafter.
However,
the findings and determinations above are not conclusive on the issue of
notice. The ALJ has outlined the legal
standards to be applied in cases where notice is an issue. Essentially, the ALJ perceives the defining
questions on this issue as being whether the plaintiff had reasonable grounds
to delay formal notice to the defendant of his work-injury in light of the
considerations enunciated that require prompt notice.
Here,
plaintiff conceded that upon contacting the defendant on January 10, 2012 he
did not express the reason for the onset of his back pain. Notwithstanding the testimony of Mr.
Patterson, the record is clear that until January 17, 2012, eight full days
after the accident, the employer was not advised the etiology of plaintiff’s
back pain stemmed from a January 9, 2012 injury. Given the onset of the condition, the
plaintiff’s acknowledgement of the onset to the extent he was unable to
complete all aspects of his work and the lack of direct communication of the
condition to his immediate supervisor, the ALJ concludes the plaintiff did not
provide notice of his work-related injury in a “prompt” manner.
However,
the ALJ must now analyze whether the lack of “prompt” notice was excusable
under the circumstances of the case. As
cited to above, purposes of the notice statutes are three-fold. To enable the employer to provide prompt
medical treatment in an attempt to minimize the worker’s disability and the
employer’s liability, enable the employer to make a prompt investigation of the
circumstances of the accident and to prevent the filing of fictitious claims. Trico County Development & Pipeline v.
Smith, 289 S.W.3d 538, 5423[sic] (Ky. 2008).
Here,
plaintiff sought and obtained medical treatment for his condition, including an
MRI of his lumbar spine within 2 days of the accident. There is no indication that at least from the
outset immediately after the accident plaintiff did not receive competent and
full medical treatment by Dr. Garrett regardless of the etiology of the
condition.
Next,
there is no indication that the defendant was unable to carry out a prompt
investigation of plaintiff’s complaints.
Although defendant argues the plaintiff’s insincerity in allegedly
reporting the condition as non-work-related or simply void of any etiology is
troubling, if the defendant had any concerns regarding relatedness to work
after the accident report was completed, it was free to perform an
investigation. The mine was still in
operation, the plaintiff’s supervisor was still employed and plaintiff’s
co-workers were still available for questioning. Had it done so, there is a high likelihood
that an interview with Eddie Perry would have confirmed the plaintiff’s
position in the case.
Finally,
the filing of a fictitious claim was made much less likely, again, as the
testimony of Eddie Perry, together with the statement of Dr. Garrett that the
plaintiff was asymptomatic immediately prior to January 11, 2012, supports a
finding the plaintiff did sustain a work-related work injury. Moreover, the ALJ believes that if plaintiff
intended to create a fictitious claim and had injured his back at home after
completing his work-shift it would have been more likely he would have called
in to say that he injured his back at work instead to say he did not.
However,
equally important to the reasons set forth above, the ALJ finds reason to
accept plaintiff’s lack of “prompt” notice in his testimony regarding reporting
of accidents. Plaintiff testified that
bonuses were given to employees based upon the duration of work without a “lost
time” accident. The ALJ believes that
such a program can be beneficial in enticing workers to exercise more caution
in carrying out their job duties and there is no reason to believe that such
was not the intent of the defendant herein.
However, under the specific facts of this case, the benevolent
intentions of the defendant could be interpreted as a reason to not report work
injuries.
In
this case, the plaintiff testified that in reporting a lost time accident, the
miner’s name was written on a board for all other colleagues to see. Plaintiff
himself interpreted this as a “wall of shame” that one did not want to appear
on if at all possible as it acted a singling out of one particular miner that
would ultimately be responsible for all other miners being denied a safety
performance bonus.
While
in general the ALJ may have discounted such an explanation, here, the facts of
the claim require deeper analysis.
Plaintiff is not a stranger to back problems. His records and testimony demonstrate that he
had prior back injuries and a surgical procedure in 2009 at the L5-S1
level. However, he had made sufficient
recovery to return to work, without restrictions, and was performing assigned
job duties in January 9, 2012.
Essentially, the plaintiff was cognizant of his prior back pain. On January 9, 2012 he indicated that while he
felt immediate discomfort, he was unsure of the severity, if any, of his
condition. It was plaintiff’s thought
process that he had sustained only a minor back strain and that a return to
work was inevitable after a few days off thus preserving the safety bonus. However, he determined that his condition was
more involved than a strain after an MRI was performed and that he was
“actually hurt this time and it wasn’t something strained.” (Deposition of plaintiff, pgs. 44-46).
Given
the concern of plaintiff of reporting what may have been a modest condition
that could have resolved quickly but as a result thereof causing the loss of
bonuses for not only himself but other workers against the actions of plaintiff
in obtaining rapid medical treatment (including a confirmatory MRI scan on
January 12, 2) [sic], learning of the more serious nature of the residuals of
the incident of January 9, 2012 (requiring referral to a neurosurgeon) and then
making arrangements to complete a formal investigation report for the defendant
on January 17, 2012, five days afterwards (inclusive of a Saturday and Sunday)
is sufficient reasons and excuse for the lack of “prompt” notice to the
defendant. Therefore, the issue of
notice is resolved in favor of the plaintiff.
Following the issuance of this Interlocutory Order, the
claim was reassigned to ALJ Case. ALJ
Case issued his Opinion, Award and Order on October 14, 2016 indicating he was
incorporating the Interlocutory Opinion, Order and Award in its entirety.
Hopkins appealed to the Board, arguing the ALJ’s finding of
a work-related injury is not supported by substantial evidence. It contends the convincing evidence
establishes Nolen was injured at home and not in the course of his employment,
and he did not follow company policy regarding reporting injuries. Hopkins notes the initial medical treatment
records do not refer to a work injury, but rather a lifting incident. It further contends Eddie Perry’s (“Perry”)
testimony is devoid of probative value because he did not witness the incident. Hopkins acknowledges Nolen sustained a change
in his lumbar condition in January 2012, but the credible evidence establishes
the change is the result of a non-work-related lifting incident at home.
Where evidence is
conflicting, the ALJ, as fact-finder, has
the discretion to determine whom and what to
believe. Caudill v. Maloney's Discount
Stores,
560 S.W.2d 15 (Ky. 1977). The ALJ found reasons to
question Nolen’s testimony and that of Leslie Patterson, Hopkins’ employee and
witness. However, the ALJ determined Perry’s
testimony tipped the scale in favor of Nolen on the question of whether an
incident occurred at work which caused the lumbar condition. Again, Hopkins does not contest Nolen
suffered a change in his lumbar condition in January 2012. Nolen’s testimony
that this change occurred as a result of a work incident, along with Perry’s
testimony, constitutes the requisite substantial proof to support the finding
of a work-related injury. 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). While Hopkins
has identified evidence supporting a different conclusion, this is not
sufficient to disturb the award. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
Hopkins also argues the finding that the delay in giving
notice was excusable is erroneous as a matter of law and is not supported by
substantial evidence. ALJ Allen first
found Nolen did not give notice in a prompt manner. Hopkins contends the reasons identified by the
ALJ to excuse the delay were insufficient, and Nolen failed to meet his burden
to show it was not practicable to give notice sooner. Hopkins believes the fact that Nolen had
previous back problems weighs in favor of finding the delay was unreasonable. Hopkins further contends it was prejudiced,
in that it could not obtain a drug test and perform a thorough
investigation.
KRS 342.185 requires notice of a
work-related accident be given to the employer “as soon as practicable after
the happening thereof.” KRS 342.200
provides a delay in giving notice may be excused due to mistake or other reasonable cause. 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.
Granger
v. Louis Trauth Dairy,
329 S.W.3d 296, (Ky. 2010). As noted by the Court in Smith v. Cardinal
Const. Co., 13 S.W.3d 623 (Ky. 2000), the purpose of the notice requirement
is not to create a technical barrier to meritorious claims, and no constructive
purpose is served by an overly technical construction of the notice
requirement. The ALJ has discretion to determine whether a reasonable
cause for delay exists based upon the particular facts and circumstances of the
case. Marc Blackburn Brick Co. v.
Yates, 424 S.W.2d 814 (Ky. 1968).
While Hopkins had a policy requiring an injury be reported
by the end of a shift, violation of that policy does not automatically render
any delay inexcusable. There is no set
time limit for what may be considered an excusable delay in giving notice
within the meaning of KRS 342.200. Here,
Nolen testified he did not know initially how serious the condition was. He sought medical attention two days after
the incident. An MRI was obtained, and
he was informed of the results on Thursday or Friday. His employer completed the accident report on
the following Tuesday, eight days following the injury and only three or four
days (including a weekend when no one would be working at the mine) after he
knew the results of the MRI. Certainly,
there comes a time when an injured worker knows his injury is serious and that
it must be reported to the employer if the worker is to pursue his claim. In Granger, the employee sustained a
bruise that progressively worsened, becoming an open sore that would not
heal. He failed to provide notice until
three months after the injury. The ALJ
determined the delay was not reasonable.
In affirming the dismissal, the Court noted:
Although it
may be impractical to expect a worker to report every minor workplace bump and
bruise, an accident forceful enough to knock a grown man to the ground and
cause a welt on his leg clearly is more than a trivial event. Yet immediately after sustaining such an
accident, a worker might reasonably view some swelling and what appears to be
only a minor bruise as being an insignificant injury that does not warrant
reporting. Continuing to view the
accident and injury as being insignificant becomes less and less reasonable,
however, when the harmful changes heal slowly, fail to heal, or worsen.
Id. at 299
Here, in contrast, Nolen sought
medical care soon after the incident and promptly notified the employer after
receiving the MRI results that put him on notice of the true nature of his
condition. As noted by the ALJ, there is
no indication the delay in giving notice resulted in Nolen not receiving proper
treatment or unduly frustrated Hopkins’ ability to investigate. Furthermore, the ALJ considered Nolen’s
hesitance in reporting a work-related injury because of the safety bonus. Taking all of these circumstances into
consideration, the ALJ could reasonably conclude Nolen’s delay in notifying
Hopkins of his injury was reasonable under the circumstances and therefore
excusable.
While Hopkins has identified evidence supporting a
different conclusion, there was substantial evidence presented to the
contrary. It is apparent ALJ Allen
carefully considered all of the pertinent proof and reached conclusions
supported by substantial evidence. 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).
Accordingly, the August 7, 2015 Interlocutory Opinion, Award and Order rendered by Hon. J. Gregory Allen, Administrative Law Judge, and the October 14, 2016 Opinion, Award and Order rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON BRANDY HASSMAN
333 W VINE ST #300
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON RYAN DRISKILL
PO BOX 370
GREENVILLE, KY 42345
ADMINISTRATIVE
LAW JUDGE:
HON R. ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
