Trico County Development & Pipeline v. Smith

289 S.W.3d 538, 2008 Ky. LEXIS 312, 2008 WL 5272773
CourtKentucky Supreme Court
DecidedDecember 18, 2008
Docket2007-SC-000556-WC
StatusPublished
Cited by6 cases

This text of 289 S.W.3d 538 (Trico County Development & Pipeline v. Smith) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trico County Development & Pipeline v. Smith, 289 S.W.3d 538, 2008 Ky. LEXIS 312, 2008 WL 5272773 (Ky. 2008).

Opinions

OPINION OF THE COURT

An Administrative Law Judge (ALJ) dismissed the claimant's application for benefits based on findings that he failed to give timely notice of an accident that occurred on June 12, 2008, or an accident that occurred several weeks earlier. A majority of the Workers' Compensation Board affirmed. A majority of the Court of Appeals reversed, however, holding that the claimant complied with KRS 342.185 by giving notice to the employer's insurance carrier. Appealing, the employer asserts that the Court of Appeals misconstrued KRS 342.185 and that the claimant failed to meet his burden of proving timely notice.

We affirm although our reasoning differs from that of the Court of Appeals. The evidence compelled a finding of timely notice. Although KRS 342.185 and KRS 342.190 require notice of a work-related accident to be given to the employer, in writing, KRS 342.200 excuses a delay in doing so if "the employer, his agent or representative had knowledge of the injury." An employer's insurance carrier may be viewed as being its agent or representative for the purpose of giving notice. This employer's carrier received notice, requested medical records, and filed a First Report of Injury within twelve days after the June 12, 2003, incident. /

The claimant was born in 1967 and completed high school. He worked for Trico County Development and Pipeline (Trico) as a bulldozer operator. His application for benefits alleged that he sustained a work-related injury on June 12, 2008, that affected his back, neck, right shoulder, legs, and arms and caused a psychological impairment. It also alleged that he advised his supervisor after the accident. Trico denied the claim on the grounds that the claimant failed to give timely notice and that no accident occurred.

When deposed, the claimant testified that he began working for Trico in April 2003. He stated that he fell off the tracks of the bulldozer about three weeks before June 12, 2008, but did not report the incident at the time because he did not consider it to be significant. He was injured again on June 12, 2003, while helping Kenneth Keaton to tighten a binder that secured a bulldozer on a trailer. He stated that Keaton let go of the binder, which jerked the claimant forward and caused pain between his shoulders. He informed Keaton that he thought he had "pulled something" in his shoulder. Shortly thereafter his supervisor, Perry Music, arrived. The claimant testified that he informed [540]*540Music of his injury, but they then had a confrontation over whether the claimant intended to go to work for another company in the area. He stated that Music fired him and that Keaton dropped him off at the home of Andrew Branham, a nearby landowner, to find a way home. The claimant testified that he sought medical treatment at St. Francis Hospital that night but had difficulty finding a physician to provide follow-up treatment under Kentucky workers' compensation because he lived in West Virginia. He contacted Trico's workers' compensation carrier and was referred to Dr. Hoover in Williamson, West Virginia, whom he saw on or about June 18, 2003.

Medical records indicated that the claimant sought treatment at the St. Francis Hospital emergency room in the early morning hours of June 13, 2008, complaining of neck and upper back pain. He reported that he injured his right arm three weeks earlier in a fall, but it had gotten better. He now experienced severe upper back and right shoulder pain after pulling on a ratchet binder on the previous day at work. The physician diagnosed a right shoulder strain and recommended rest, ice, compression, and elevation. He prescribed Hydrocodone and Flexeril, released the claimant to return to work in two or three days, and recommended follow-up medical treatment.

The record indicates that the claimant completed a First Report of Injury form on June 13, 20083. He included the June 12, 2003, incident as well as the incident alleged to have occurred a few weeks earlier. Records at the Office of Workers Claims indicate that the carrier filed the report on June 24, 2003.

Dr. Scott performed an independent medical evaluation at the request of Trico's insurance carrier on August 11, 2008. Among the records that he reviewed was the claimant's injury report and the carrier's June 23, 2008, request for records from the Williamson Wellness Center. Dr. Scott diagnosed a trapezius and rhomboid or thoracic strain, which he based solely on the claimant's complaints and the history that he gave. The carrier received the report on September 4, 2003.

Kenneth Keaton testified that he bound the dozer on the trailer while the claimant talked with Music. He denied that the claimant pulled on a binder, that an accident occurred, or that the claimant mentioned an injury. He stated that the claimant had informed him previously that he intended to leave the job to work for another employer. Perry Music testified that his wife owned Trico and did the bookkeeping. He handled operations and supervised the five employees. Music stated that the claimant had worked for Trico for only "a couple of weeks" and never reported a work-related injury. He learned of the alleged June 12, 2008, injury when his workers' compensation carrier contacted him or when he received a medical bill from West Virginia. He could not recall which occurred first or the date. Music testified that the witness listed on the First Report of Injury for the earlier incident was a friend of the claimant's whom Music had fired before June 12, 2008. Also attached to the deposition was a copy of a fax that Trico's insurance carrier received on July 6, 2003. The fax contains a copy of the claimant's June 12, 2003, paycheck as well as notations regarding hours and pay. Music denied that the notations were in his handwriting.1

Andrew Branham recalled witnessing the claimant and Keaton loading a dozer [541]*541but did not recall whether it occurred on June 12, 2008. He also saw the claimant help to tighten binders but did not see an injury. Branham stated that he let the claimant use his phone to obtain a ride home and that he did not mention an injury.

The claimant argued that he gave timely and adequate notice. He admitted that he failed to give notice of the earlier injury, which he did not consider to be significant at the time, but argued that he gave immediate notice of the June 12, 2003, injury and filed a timely injury report with Trico's insurance carrier. Moreover, the carrier filed electronically on June 24, 2003. The claimant also argued that Music received the bill from St. Francis Hospital and that Trico was able to schedule an independent medical evaluation within two months after the injury. Trico asserted, however, that no work-related injury occurred and that the elaimant failed to notify Music or his wife of either incident.

The ALJ found that the claimant did not give notice on June 12, 2008, and noted his admitted failure to give notice of the previous incident.

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Trico County Development & Pipeline v. Smith
289 S.W.3d 538 (Kentucky Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
289 S.W.3d 538, 2008 Ky. LEXIS 312, 2008 WL 5272773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trico-county-development-pipeline-v-smith-ky-2008.