Opinion
NO. 2014-CA-000940-WC
03-13-2015
NANNIE BOWLING APPELLANT v. LAUREL CREEK HEALTH CARE CENTER; HONORABLE STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE LAUREL CREEK HEALTH CARE CENTER: Chad M. Jackson Nashville, Tennessee
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-13-95443
OPINION
AFFIRMING
BEFORE: MAZE, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Nannie Bowling petitions this court for review of a decision by the Workers' Compensation Board ("Board") affirming the dismissal of her shoulder injury claim by the Administrative Law Judge ("ALJ") for failure to give proper and timely notice of her injury to her employer, Laurel Creek Health Care Center ("Laurel Creek"). For the following reasons, we affirm.
On January 25, 2013, Bowling sustained an injury to her left arm and elbow while working as a housekeeper for Laurel Creek when she tripped and fell over a vacuum cleaner. She filed a Form 101 on July 1, 2013, claiming injuries to her left arm and elbow. Laurel Creek filed a Form 111 accepting the claim as compensable, but disputing the amount owed. Bowling received temporary total disability ("TTD") benefits voluntarily paid by Laurel Creek, and medical treatment for both conditions. She returned to work on light duty until her treating surgeon released her to return to work with no restrictions and a 0% impairment rating. Several months later, Bowling received an independent medical examination ("IME") from Dr. Hughes, who assessed an impairment rating for her left shoulder. Bowling never amended her Form 101 or notified Laurel Creek of the shoulder injury, and she never informed any of her medical providers of Hughes's assessment. At her deposition, Bowling denied that she had injured her left shoulder. Not until the benefit review conference ("BRC") on December 4, 2013, did Bowling assert a shoulder injury stemming from her accident.
The ALJ found as undisputed that Bowling sustained a left elbow and left wrist injury when she tripped and fell over the vacuum cleaner, noted that she received TTD benefits for the two weeks of work she missed, and determined that all medical bills had been paid. The ALJ found that the evidence did not indicate that she had a claim for a shoulder injury, but even if she did have such an injury, she knew about it at the time of her IME, yet still denied the injury at her deposition and never amended her Form 101. Accordingly, the ALJ decided that Bowling failed to give proper and timely notice of the alleged shoulder injury and therefore her claim for that injury was barred. Bowling appealed the ALJ's decision to the Board, which held that the ALJ's decision was supported by substantial evidence, and thus affirmed. From the Board's opinion, Bowling now appeals.
Bowling argues that the ALJ erred by dismissing her claim for a left shoulder injury because it was included in her allegation of left arm injuries, and the Board erred by affirming the ALJ. Further, Bowling maintains that Laurel Creek was on notice of her left shoulder injury, and therefore, her claim does not fail for lack of timely and proper notice.
The well-established standard of review for the appellate courts of a workers' compensation decision "is to correct the [Workers' Compensation] Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." E.g., W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler's Fleet Serv. v. Martin, 173 S.W.3d 628, 631 (Ky. App. 2005); Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky. App. 2004). See also Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (if the fact-finder finds in favor of the person having the burden of proof, the burden on appeal is only to show that some substantial evidence supported the decision); cf. Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (if the ALJ finds against the party having the burden of proof, the appellant must "show that the ALJ misapplied the law or that the evidence in her favor was so overwhelming that it compelled a favorable finding[]").
KRS 342.185(1) states: "no proceeding under this chapter for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof[.]" Bowling argues that no specific time limit exists for the reporting of an accident under the Workers' Compensation Act; however, we agree with the Board and the ALJ that Bowling did not give Laurel Creek notice of her alleged shoulder injury "as soon as practicable."
Bowling cites Smith v. Cardinal Constr. Co., 13 S.W.3d 623 (Ky. 2000), which held that a worker is not obligated to give an employer notice of a latent injury until he became aware that the injury had been sustained. However, Smith is factually distinguishable from the case at bar. In Smith, the claimant filed a Form 101 which referred only to a lumbar injury, but the documents filed with the claim clearly indicated that Smith had also sustained a cervical injury, which the treating physician attributed to the work-related accident. Id. at 628. The Kentucky Supreme Court held that "[d]espite the fact that claimant neglected to list the cervical injury on the initial claim, the documentation which was filed with the claim put the employer on notice that claimaint had sustained a cervical injury as well as a lumbar injury in the work-related accident." Id. Months later, the employee sought to amend his claim to give formal notice of the latent cervical injury. The Kentucky Supreme Court held that the delayed formal notice did not bar claimant's cervical injury since the employer received notice of the cervical injury no later than when it received the claim and supporting documentation. Id. Here, at the time Bowling filed her Form 101, no supporting documentation revealed a left shoulder injury. Even if Bowling's shoulder injury could be characterized as a latent injury caused by her fall, she still did not report it in a timely fashion. Bowling failed to give notice once she became aware of the alleged shoulder injury during her IME with Dr. Hughes, never amended her Form 101, and then denied the injury in her subsequent deposition. Therefore, Smith is inapplicable to this case.
Next, Bowling argues that Laurel Creek did have timely and proper notice of her shoulder injury. "The notice requirement has three purposes: to provide prompt medical treatment in order to minimize the worker's ultimate disability and the employer's liability, to enable the employer to make a prompt investigation of the circumstances of the accident, and to prevent the filing of fictitious claims." Roberts v. Lodestar Energy, Inc., 2005 WL 2045587 at *3 (Ky. 2005). KRS 342.190 requires notice to contain the "the nature and extent of the injury sustained[.]" KRS 342.200 then directs:
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.
Here, Laurel Creek had no knowledge of the shoulder injury claim until the time of the BRC. The filing of Dr. Hughes's report into evidence was insufficient to give Laurel Creek notice of the extent of Bowling's injury. And, Bowling explicitly denied having a shoulder injury during her deposition, which we believe amounts to misleading Laurel Creek as to the extent of the injury. Without an amendment of her Form 101 or some other sort of notice, Laurel Creek was justifiably unaware that Bowling would be making a claim for benefits related to a shoulder injury. Thus, the ALJ properly barred Bowling's claim with respect to any shoulder injury, and the Board properly affirmed.
Even if we were to determine that Laurel Creek had timely notice, we would still be obliged to affirm since the ALJ found that any injury to Bowling's shoulder was not work-related. Bowling does not dispute that finding in her petition.
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky
BRIEF FOR APPELLEE
LAUREL CREEK HEALTH CARE
CENTER:
Chad M. Jackson
Nashville, Tennessee