JENTRY C. SMITH, SR. v. CARDINAL CONSTRUCTION COMPANY; ROBERT L. WHITAKER, Director of the Special Fund; LLOYD R. EDENS, Administrative Law Judge; and, WORKERS' COMPENSATION BOARD
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RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001712-WC
JENTRY C. SMITH, SR.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-003367
v.
CARDINAL CONSTRUCTION COMPANY;
ROBERT L. WHITAKER, Director of the
Special Fund; LLOYD R. EDENS,
Administrative Law Judge; and,
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE:
This petition for review of a decision of the
Workers’ Compensation Board (Board) presents the issue of whether
the administrative law judge (ALJ) erred in denying Jentry Smith
(Smith) benefits for treatment of a cervical condition based upon
failure of Smith to give due and timely notice of that condition
pursuant to KRS 342.185.
Having reviewed the record and
applicable law, we affirm.
Smith sustained a work-related back injury on January
7, 1996, when he slipped and fell from the deck of a bulldozer
while in the employ of Cardinal Construction Company (Cardinal).
He returned to work for several days under the belief he was
merely “stoved up.”
Smith did report a lower back injury to
Cardinal’s safety manager, Earl Whitmore; however, this report
was in conjunction with a regularly scheduled physical
examination with Dr. Paul Craig, a specialist in occupational
medicine.
On Friday, January 12, 1996, Smith attended his routine
examination.
Dr. Craig recommended an emergency MRI and upon the
results therefrom, that Smith be hospitalized immediately.1
However, Smith declined to be admitted at this time due to his
wife being snowbound at home, necessitating he go home to shovel
snow.
Smith returned to the hospital the following Monday,
January 15, 1996, and was referred to Dr. J. Scott Powell, a
neurosurgeon.
That same day Dr. Powell had Smith admitted, and
lumbar surgery was performed on January 17, 1996.
Smith saw Dr. Powell for a follow-up appointment on
March 13, 1996.
Dr. Powell’s notes relating to this visit
indicated observation of a cervical condition.
On March 15,
1996, Dr. Powell performed the first neck surgery on Smith.
Again in May 1996, Smith underwent another cervical procedure.
Shortly thereafter, in July 1996, Cardinal began denying payment
of any medical expenses relating to the cervical surgeries.
The
basis for denial was the failure of Smith to timely report the
neck injury.
1
Smith’s MRI confirmed a large disc ruptured at L3-4 and
L4-5.
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Following the original hearing on the matter, the ALJ
rendered his opinion which, in part, addressed Smith’s cervical
injury claims.
The ALJ noted that although Smith had completed
his Form 101, Application for Adjustment of Claims, on March 11,
1996, and filed same on March 13, 1996, the claim was for an
injury to his lumbar area.
Specifically, the ALJ found:
Plaintiff testified that he began having
cervical problems while in the hospital, and
the record reflects that he was hospitalized
for his low back surgery on January 17, 1996.
Plaintiff’s claim was filed on March 13,
1996, and contained a claim for injury to the
lumbar area. The March 13, 1996, report of
Dr. Powell to Dr. Craig indicates that the
Plaintiff’s numbness and weakness in the
upper extremity had increased over the last
three day period. The Plaintiff’s Form 101
was signed on March 11, 1996, within this
three day period and does not indicate a
problem with the upper extremities or the
cervical area. The Plaintiff did not seek
benefits for the cervical condition nor does
the record reflect notice to the
Defendant/Employer until the August 29, 1996,
motion to amend the claim to include cervical
disc injury. While the Defendant/Employer
received timely notice of the accident and
the lumbar injury, notice was not sufficient
to apprise the Employer of the existence of
the claim for compensation for the cervical
injury. In light of the seven month delay
between the onset of symptoms of neck pain
and notice to the Defendant/Employer, I find
notice of the cervical condition was not
given as soon as practicable. Reliance
Di[e]casting Co. v. Freeman, Ky., 471 S.W.2d
311 (1971); T.W. Samuels Distill[e]ry Co. v.
Houck, Ky., 176 S.W.2d 890 (1943).
In his order of December 27, 1996, the ALJ dismissed
Smith’s claim for benefits arising from the cervical injury for
failure to provide timely notice of same as required by KRS
342.185(1).
Concerning the back injury, the ALJ found that Smith
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had not reached maximum medical improvement and, therefore,
awarded open-ended temporary total disability (TTD).
Upon Smith attaining maximum medical improvement, the
claim was removed from abeyance, further proof taken, and a
second opinion finding Smith totally occupationally disabled was
rendered on February 23, 1998.
Citing Marc Blackburn Brick Co.
v. Yates, Ky. 424 S.W.2d 814 (1968), the ALJ reiterated his
previous findings that Smith failed to give notice as soon as
practicable, and that Smith’s written notice by way of the August
1996 claim amendment was untimely.
Smith appealed this decision
to the Board, which affirmed.
Smith raises the same issues to this Court as were
before the Board, arguing the ALJ’s application of KRS 342.185(1)
and case law interpreting that statute was erroneous and contrary
to the dictates of Newberg v. Sleets, Ky. App., 899 S.W.2d 495
(1995).
Further, although Smith concedes he failed to formally
notify Cardinal, in writing, of his cervical injury, he indicates
Cardinal’s employees, injury investigators and the like “were
certainly aware of the neck injury within a few months of the
injury.”
Since Smith has provided no substantive proof, legal
argument, nor pointed to where this allegation can be
substantiated in the record, we decline to undertake discussion
of this issue on appeal.
CR 76.12; Elwell v. Stone, Ky. App.,
799 S.W.2d 46 (1990).
On appeal, our duty is to determine whether “the Board
has overlooked or misconstrued controlling statutes or precedent,
or committed an error in assessing the evidence so flagrant as to
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cause gross injustice.”
Western Baptist Hosp. v. Kelly, Ky., 827
S.W.2d 685, 687-88 (1992).
After thoroughly reviewing the
record, applicable authorities, and opinion of the Board, we
adjudge that Smith has failed to meet the requirements of Kelly.
As the Board concluded:
A determination of whether notice is due
and timely is a mixed question of law and
fact. Harry M. Stevens Co. v. Work[men’s]
Compensation Board, Ky. App., 553 S.W.2d 852
(1977). As with all essential elements of a
workers’ compensation claim, the burden of
proof rests with Smith. Snawder v. Stice,
Ky. App., 576 S.W.2d 276 (1979). Therefore,
we must review the record to determine
whether it compelled a contrary result.
Special Fund v. Francis, Ky., 708 S.W.2d 641
(1986).
KRS 342.185 provides that notice be
given as soon as is practicable under the
circumstances. Exceptions to the notice
requirement exist in KRS 342.200 which
authorizes the fact-finder to conclude notice
is timely when there is actual notice of an
injury or that the failure to give notice was
occasioned by mistake or reasonable cause.
In Newberg v. Sleets, Ky. App., 899
S.W.2d 495 (1995), as cited by Smith, the
Court reiterated a principle set forth
previously by the Court in Marc Blackburn
Brick Co. v. Yates, supra, that [“]KRS
342.200 affords claimants some degree of
liberty in fulfilling the notice requirement
[‘]to effectuate the beneficent purposes of
the compensation Act.[’]” [Sleets, 899
S.W.2d at 497. (Citation omitted).] And
while not retreating from the provisions of
KRS 342.185 requiring notice of an injury as
soon as practicable, the Court in Sleets,
supra, reminded us of the statement in Yates
that, “[t]he nature of the injury is
important on the question of notice insofar
as it relates to the knowledge of the injured
person of the extent of his injury.”
In this case, Smith sustained the injury
in January 1996. He had severe cervical
problems by March of that year and underwent
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surgery. He did not move to amend his claim
until August 1996. The ALJ found that the
seven month delay between the onset of
symptoms of neck pain and notice to Cardinal
was not given as soon as practicable. The
Board, having reviewed the record, the ALJ’s
decision, and arguments by counsel, finds the
ALJ did not err in finding due and timely
notice was not given. While the ALJ could
have drawn other inferences from the record
concerning the giving of notice, the evidence
is not so overwhelming as to compel a finding
in Smith’s favor. There is nothing in the
record to show that the medical expenses for
Smith’s cervical condition were being claimed
as compensable until Smith moved to amend his
claim.
We believe the Board’s analysis accurately interprets
the law with respect to the notice requirement under KRS 342.185.
Moreover, it is our opinion the dictates of Reliance Diecasting
and Sleets are consistent.
In both instances, the Court has held
that late notice is sufficient to satisfy the statutory
requirement when given at the time claimant “first received a
positive diagnosis of a [specific injury].”
Co., 471 S.W.2d at 313.
Reliance Diecasting
As Sleets points out, the exact nature
of the injury becomes important with respect to the claimant’s
“knowledge” of the extent of his injury. Sleets, 899 S.W.2d at
497.
It follows that upon first receiving knowledge of an
original, additional or extended injury, the claimant is under a
duty to notify his employer of the exact nature and extent of the
injury, or by extension, the scope of his claim.
It is without question that Smith had knowledge of his
cervical injury no later than March 1996 when he underwent
surgery for that condition.
It was incumbent upon him to notify
Cardinal of the extent of the injury, for which he would be
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seeking benefits, upon first receiving a positive diagnosis of
the cervical condition.
Providing notice in August 1996, vis à
vis an amendment to his claim, was untimely.
Had the cervical
condition not been detected until August 1996, Smith may have
fallen within the excusable delay parameters of Reliance
Diecasting and Sleets.
However, such is not the case and,
accordingly, we agree with the Board’s decision and affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR CARDINAL
CONSTRUCTION COMPANY:
Jack W. Richendollar
Catlettsburg, Kentucky
R. Craig Reinhardt
Michael E. Liska
Lexington, Kentucky
BRIEF FOR SPECIAL FUND:
Benjamin C. Johnson
Louisville, Kentucky
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