Opinion
110,972.
12-12-2014
Joseph B. BATTAH, Appellant, v. HI–LO INDUSTRIES, INC., and Lumbermen's Underwriting Alliance, Appellees.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant. J. Scott Gordon, of McCormick, Gordon, Bloskey & Poirier, of Overland Park, for appellees.
William L. Phalen and Crystal D. Marietta, of Pittsburg, for appellant.
J. Scott Gordon, of McCormick, Gordon, Bloskey & Poirier, of Overland Park, for appellees.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Joseph B. Battah appeals from the order of the Workers Compensation Board (Board) which found that he failed to timely notify his employer of his work-related injury, prohibiting his entitlement to receive benefits. Battah contends there is not substantial competent evidence to support the finding of untimely notice, and he also argues the Board erred in finding there was no just cause to extend the time for notifying his employer. We affirm.
Factual and Procedural History
Battah started working for Hi–Lo Industries, Inc., a cabinet factory, in November 2004. He started on a part-time basis until sometime in 2006, when he was hired full time as a saw operator. Around early February 2007, Battah began noticing pain in his back, hips, and legs while working. The pain would worsen during the week; he would rest over the weekend and would feel better on Mondays, which would allow him to return to work. On Friday, March 16, 2007, Battah testified he was working as usual when he picked up a sheet of particle board and placed it on the saw table; when he straightened up, he felt pain in his legs and hips. This incident happened before his lunch break, and he did not return to work after lunch.
Battah testified that he called into work the next Monday and talked to Karen Clounch, the human resource director at Hi–Lo and the person Battah called whenever he would be off work for any reason. He told Clounch he hurt his back and would not be coming into work that day. He testified he specifically told her he got hurt at work the Friday before. Clounch did not refer him to a doctor or anyone else.
Battah went to the emergency room on Tuesday, March 20, 2007, where x-rays were taken and he was given pain medication. Battah told the emergency room physician how he hurt his back, and the doctor recommended he find another job. That same day, Battah also was examined by Tawnya Madl, a physician's assistant who came regularly to the plant. Battah told Madl how he felt the sudden pain on Friday, March 16. She reported that it appeared he suffered from a degenerative joint disease with an acute flare-up. However, Madl's notes do not reflect any statement that Battah claimed he sustained an injury while at work. Battah saw Madl again at the plant's clinic on April 10, 2007, when he reported that his condition remained unchanged. Madl made an appointment for Battah with an orthopedic physician, Dr. Mosier, for April 18, 2007.
Clounch testified that if an employee advised her of an on-the-job injury, she would immediately refer the employee to Blaine Meisch, the safety director, to fill out an accident report. Meisch handled all the paperwork for workers compensation claims. If an employee called and said he or she was ill and needed to be gone for an extended period, Clounch would determine if the employee was eligible for short-term disability and, if so, would provide the employee the contact information for Reliance Standard Insurance Company, the short-term disability insurer.
Clounch testified that Battah called her to say he was having back problems but she did not recall him stating the problems were work related. If he had indicated his problems were work related, Clounch stated she would have referred him to Meisch. Battah continued to call her to say he would not be in to work, and she requested doctors' notes. She told him he could have up to 8 weeks of leave and gave him contact information for Reliance, the short-term disability insurer. She testified that Battah never told her his injury was work related until the very end of his 8–week leave. Battah was terminated when his leave expired. He was also told his medical insurance would expire unless he opted to pay for his health insurance under COBRA. Clounch testified that when Battah was told he would be let go, Battah asked for the first time if workers compensation would cover his medical expenses. She said he would have to talk to Meisch about workers compensation. Battah testified that both Clounch and Meisch told him he could not file for workers compensation at that time.
During his 8–week leave, Battah applied for short-term disability benefits through Reliance. Battah also answered some questions during a phone interview with Reliance. At Battah's request, Madl completed some paperwork regarding his physical condition. Battah testified he told the disability insurer that he injured his back at work. However, the intake forms from Reliance reflect the injury was not work related. Battah testified he applied for short-term disability because he was expecting to go back to work. He also turned in his medical bills to his major medical insurance carrier, which ultimately declined to pay those bills because Battah's injuries were work related. Battah learned this after his termination.
Battah testified he told everyone during the week after the injury occurred that he was injured at work on March 16, 2007. Many of the medical records, however, do not explicitly include this information. The emergency room reports from March 20, 2007, indicate that Battah had reported hip pain since Saturday, not Friday. The radiology report from that date also indicates Battah reported bilateral hip pain with no known injury. Similarly, notes from Battah's March 26, 2007, examination by Dr. Bruce Lee, D.O., indicate Battah reported pain in his hips intermittently for “quite some time,” with an increase in pain over the last 3 weeks. Lee's records state there was “no inciting or recent aggravating trauma” reported. Battah's intake form with Dr. Mosier also did not indicate that the injury was work related or occurred at work, even though there were specific spaces on the form to provide that information.
Battah testified at the preliminary hearing that he never was treated for hip or back pain prior to March 20, 2007. Medical records from 2001, however, indicated he had complained of hip pain at the same time he started treatment for carpal tunnel syndrome ; he was diagnosed with, among other conditions, rheumatoid arthritis. He also fell at home in 2004 and went to the emergency room for severe low back pain, where he was found to have bruised his back and was given pain medication. In follow-up examinations with his regular physician and a week later at the emergency room, Battah reported continued severe back pain with some radiation down toward his left knee.
On June 18, 2007, Battah filed an application for hearing with the Kansas Divisions of Workers Compensation, claiming he suffered a work-related injury “each and every working day ending” March 16, 2007. The first preliminary hearing was held on September 19, 2007, and the evidence was presented as set forth above.
In a short order issued September 27, 2007, Administrative Law Judge (ALJ) Thomas Klein ordered, without making any factual findings, Hi–Lo to pay for Battah's medical treatment and to pay him temporary total disability payments. Hi–Lo appealed to the Board, asserting that Battah's injuries did not arise out of and in the course of his employment. The Board, through a single member, approved the temporary order based upon evidence presented to date.
A regular hearing was held in April 2009, and terminal dates were extended several times until July and August 2010. By this time, Hi–Lo had paid Battah 51.3 weeks of temporary total disability benefits in excess of $12,000 and had paid his medical expenses in excess of $18,000. Hi–Lo continued to deny that Battah's injury was work related or that it received timely notice of the injury.
Hi–Lo's and Battah's attorneys sent him for examination and evaluation by various physicians and vocational rehabilitation specialists between June 2007 and July 2010. Their testimonies were also presented to the ALJ and the Board. The parties also deposed various Hi–Lo employees regarding the nature of Battah's work duties prior to his injury.
Battah's deposition was taken on June 15, 2009, more than 2 years after the last day he physically worked at Hi–Lo. His description of his March 16, 2007, accident and how it occurred was consistent with his preliminary hearing testimony. Battah's subsequent testimony about when and to whom he reported his work-related injury varied. In 2009, Battah testified he called Clounch on Friday, March 16, after lunch to tell her he had hurt himself that morning. Later in that deposition, he testified he talked to the receptionist Friday afternoon and asked her to tell Clounch that he would not be in that afternoon because his legs were hurting. He also reported he talked to the receptionist on Monday and reported that he got hurt on Friday. Still later, Battah testified he talked to the receptionist on Monday and then talked to Clounch later that same day. Battah also testified he again told Clounch of his work-related injury the same day he saw Madl—March 20, 2007. Battah admitted that at the time of his injury, he knew he was supposed to report any work-related injuries to Meisch. When he called from home, however, Battah testified that Meisch was not available so he told Clounch.
Battah further testified that when Clounch told him his employment was terminated, he asked about workers compensation. Clounch told him to talk to Meisch. Battah complained to Meisch that his medical bills were not being paid because his injury was work related and asked Meisch about workers compensation. According to Battah, Meisch told him he could not apply for workers compensation because he was no longer employed by Hi–Lo. According to Meisch, he told Battah that they could not “make up” a claim to invoke workers compensation coverage. Battah admitted this was the first time he specifically asked about workers compensation covering his costs. Later in his deposition, Battah stated he told both Clounch and Meisch on March 20, 2007, about the work injury.
The depositions of Clounch and Meisch also were taken in 2010. Clounch's deposition testimony largely repeated her testimony from the preliminary hearing. Clounch confirmed that Battah came to her office frequently after his injury to report he was still not able to return to work, but she testified he did not tell her his injury was a result of an on-the-job incident. He only asked about workers compensation after his 8–week leave had expired. Clounch testified that she would not have referred Battah to Reliance if she believed his injury was work related because she knew that short-term disability benefits were not available for such injuries.
Meisch testified he had worked at Hi–Lo as director of environmental health and safety since 2001. He was involved in training new employees on what to do if they were injured on the job, and he filled out accident reports when he was informed of a job-related injury. When an employee sustained an on-the-job injury, Meisch testified the employee typically filled out a report and the supervisor filled out an injury report; Meisch received the reports and forwarded them to the company's workers compensation carrier.
Meisch testified that Battah did not tell him on March 16, 2007, that he had been injured at work, nor did Battah tell him that his back or hip problems were due to an injury on the job. Meisch did see Battah the next week. Battah told Meisch he had been to the emergency room due to back problems that he had been dealing with for some time and that he would not be able to come back to work until his physician examined him. Battah did not tell Meisch that he thought his back problems might be work related until 8 or 9 weeks after he left work. Although Battah asked about workers compensation at that time, he never referenced a specific injury or date a work-related injury occurred. Meisch checked with Battah's supervisor and was told that Battah did not report a work-related injury to him.
A records deposition also was taken of Karen McGill, an employee of Reliance. McGill testified about Reliance's intake process, including the completion of an intake form when a claimant called in with a new disability claim. Normally, the company sends the intake form and a certification form to the claimant for review and signature to verify the information. Reliance's records indicated that Battah's intake form was completed on March 29, 2007, and the certification was signed April 10, 2007. One of the questions on the form is whether the claimant's disability was caused by work; Battah's form indicated “no” to this question. The signature on the certification form appears to match Battah's signature on the form completed when he enrolled for the disability coverage. Battah was paid short-term disability benefits from Reliance from March 27, 2007, to June 26, 2007.
The parties' terminal dates were extended several times with the final terminal dates set for May 31, 2010, and June 30, 2010. Battah filed his submission letter setting forth his factual and legal arguments to ALJ Klein in July 2010; Hi–Lo filed its submission letter to ALJ Klein on August 27, 2010. No award was issued for some time. evidence Hi–Lo accumulated during the workers compensation case and asserts that the only item Hi–Lo did not have an opportunity to investigate was “the actual mechanism of the injury.” He also implies that Clounch had some type of obligation to inquire whether his injury was work related when he told her he would be off work because of his back.
Battah contends there was not substantial competent evidence to support the Board's finding that just cause did not exist for any failure by Battah to notify Hi–Lo of his injury. “Substantial evidence” refers to “ ‘ “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis [of fact] from which the issue raised could be easily resolved.” ‘ “ Ward v. Allen County Hospital, 50 Kan.App.2d 280, 285, 324 P.3d 1122 (2014).
It should be noted that because Battah consistently testified he told Clounch and/or Meisch of his work-related injury, he made no effort during the administrative proceedings to argue there was just cause for failing to timely report the injury, even though timely notice was an issue throughout the case. Now, on appeal, he seeks to claim an extension of the 10–day statutory period because of confusion about the claim.
We are unpersuaded by Battah's arguments. Kansas courts have long held the notice statute “contemplates ... notice of injury, so that the employer may have fair opportunity to investigate the cause and observe the consequences.” Davis v. Shelly Oil Co., 135 Kan. 249, 251, 10 P.2d 25 (1932).
Although Hi–Lo may have observed the consequences of Battah's disability claim, they were prevented for at least 8 weeks from investigating the alleged cause of Battah's injury. As indicated in the record, Battah did not notify his supervisor or anyone immediately when he felt the severe pain in his back on Friday, March 16, 2007. Thus, the employer was prevented from questioning him about the circumstances or questioning other employees who might have observed Battah's actions at the time of the accident. Such information would be especially important in light of Battah's prior medical history and his postaccident reports to health care providers that his back and hips had been bothering him intermittently for some time and his early indications that there was no fall or sudden injury inciting his severe pain. None of the employees who provided deposition testimony actually witnessed Battah's accident or were told on that day that Battah was hurt.
Battah's reliance on Kotnour v. City of Overland Park, 43 Kan.App.2d 833, 233 P.3d 299 (2010), rev. denied 293 Kan. 1107 (2012) is misplaced. In Kotnour, the claimant, a police officer, had jumped over a retaining wall while chasing a suspect. A few days later, the officer felt a twinge in his right knee. The officer did not consider the twinge as related to the chase several days before and assumed the ache would eventually go away. The pain continued, but the officer was able to continue to work, although his pain level varied based on his activities. Approximately 9 weeks after the chase, the officer went to his regular physician because of unrelated conditions. When he reported the problem with his knee, the doctor suggested he inform his employer of the injury. The next day, the officer told his supervisor about his knee problems which starting shortly after the chase. Thereafter, the employer—the City—told the officer that he had not given timely notice of the injury and would not be provided medical treatment.
The officer filed a workers compensation claim. The ALJ denied his request for benefits, concluding he had failed to timely report his claim. The Board, however, reversed that decision, finding there was just cause for the delay because he thought the injury would heal itself. On appeal, the panel of this court noted the notice of accident requirement was considered a flexible rather than a rigid standard, extending to situations when an employee could not reasonably have been expected to realize that an injury was one likely to lead to a compensable disability. 43 Kan.App.2d at 838–39. The panel also weighed the remedial aims of the Act and acknowledged that the officer's injury was such that he continued to work without any loss of time from his employment. 43 Kan.App.2d at 839.
Unlike the officer in Kotnour, Battah immediately stopped working after the injury and remained off work for an extended period without informing his employer that he suffered a work-related injury. Although Battah testified he thought his back and hips would get better, he was unable to work and received on-going medical treatment. Thus, he had no justification to delay in reporting his injury to Hi–Lo because the injury clearly was a temporary disability preventing him from working. Because Battah never claimed he believed the injury was not work related and because the injury prevented him immediately from continuing to work, there was no just cause for him failing to report the same. For these reasons, there is substantial competent evidence to support the Board's findings that Battah failed to establish just cause for his failure to timely report his injury.
Affirmed.