JANICE LAWSON v. WAL-MART STORES, INC.; RICHARD H. CAMPBELL, Administrative Law Judge; AND BRYANT KEITH POTTER v. TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC.; JOHN B. COLEMAN, Administrative Law Judge; ROBERT L. WHITTAKER, Director of SPECIAL FUND; and WORKERS' COMPENSATION BOARD
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RENDERED:
September 7, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-002322-WC
JANICE LAWSON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-97-69523
WAL-MART STORES, INC.; RICHARD H.
CAMPBELL, Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
AND
NO. 2000-CA-002598-WC
BRYANT KEITH POTTER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-95-22010
TOYOTA MOTOR MANUFACTURING,
KENTUCKY, INC.; JOHN B. COLEMAN,
Administrative Law Judge;
ROBERT L. WHITTAKER, Director of
SPECIAL FUND; and WORKERS’
COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
APPELLEES
BEFORE:
DYCHE, HUDDLESTON and McANULTY, Judges.
HUDDLESTON, Judge:
These workers’ compensation appeals present a
common issue of law:
whether the payment of temporary disability
benefits, subsequent to the running of the original two-year period
to file a claim after the date of an injury, serves to revive a
claim and give a claimant two years from the date of the last
payment of temporary benefits to file a claim, pursuant to Kentucky
Revised Statute (KRS) 342.185(1).
APPEAL NO. 2000-CA-002322-MR
Janice Lawson began her employment at Wal-Mart in 1980.
While working in the position of layaway manager, Lawson injured
her back on August 3, 1994, lifting a CD player.
In addition to
her back pain, Lawson eventually developed pain in her legs as a
result of her injury.
After taking a few days off, Lawson returned
to her regular job duties until July 1997, when she began to
experience pain in her right arm.
Again Lawson was off work until
September 24, 1997. She returned to Wal-Mart and worked until July
2, 1998, when she had to quit due to pain in her low back and right
leg.
Wal-Mart
paid
Lawson
temporary
total
disability
(TTD)
benefits for her right arm ailment from July 22, 1997, through
December 24, 1997.
Lawson was also paid TTD benefits during the
time she was treated surgically for her low back symptoms and
thereafter from July 8, 1998, through December 28, 1998.
Lawson
filed an Application for Resolution of Injury Claim on March 18,
1999.
The Administrative Law Judge determined that Lawson was
totally and permanently occupationally disabled, a condition that
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resulted from the combined effects of her 1994 low back injury and
her right arm condition from 1997.
The ALJ attributed 70% of the
permanent impairment to Lawson’s 1994 injury and 30% to her 1997
injury.
Although Wal-Mart argued that Lawson did not timely file
her claim, the ALJ determined that the voluntary payments of TTD by
Wal-Mart in 1998 revived her claim and gave Lawson two years from
the date of the last payment to file her claim.
The Board reversed, holding that the voluntary payment of
benefits outside of the two-year period for prosecution of a
workers’ compensation claim could never revive a claimant’s right
to file a claim once the right to bring a claim has been “legally
extinguished.”
Because Lawson did not file her claim within two
years of her original injury, the Board held that her claim was
time barred.
APPEAL NO. 2000-CA-002598-WC
In Bryan Keith Potter’s claim, the Workers’ Compensation
Board reversed an Administrative Law Judge’s award and held that
Potter failed to timely apply for benefits within two years of his
work-related injury pursuant to KRS 342.185(1).
Potter, while employed by Toyota Motor Manufacturing as
an assembly worker, sustained a low back injury on September 1,
1992.
Potter, however, continued to work until May 1995, when he
was forced to cease working because of the worsening of his injury.
Toyota paid TTD payments to Potter from May 1995 to October 1997.
Potter returned to work in June 1997.
on July 15, 1997.
He suffered a second injury
Potter continued to work until mid-1998.
-3-
On
June 14, 1999, Potter filed a claim for workers’ compensation
benefits.
The ALJ determined that Potter was 30% occupationally
disabled and awarded him benefits payable for a period not to
exceed 425 weeks.
Benefits for the first 212.5 weeks were to be
paid by Toyota with the remaining benefits to be paid by the
Special Fund.
The Board agreed with Toyota and the Special Fund that
the voluntary payment of temporary/total benefits which began more
than two years following Potter’s 1992 injury did not extend the
time for filing a claim resulting from that injury.
* * * * *
The time period within which a claimant must file a claim
for workers’ compensation benefits is found in KRS 342.185(1). The
statute provides that:
[N]o 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 and
unless
an
application
for
adjustment
of
claim
for
compensation with respect to the injury shall have been
made with the department within two (2) years after the
date of the accident, or in case of death, within two (2)
years after the death, whether or not a claim has been
made by the employee himself for compensation. . . . If
payments of income benefits have been made, the filing of
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an
application
for
adjustment
of
claim
with
the
department within the period shall not be required, but
shall become requisite within two (2) years following the
suspension of payments or within two (2) years of the
date of the accident, whichever is later.
The ALJ found in both cases that the claimants timely
filed their injury claims because the claims were made within two
years of the termination of their TTD benefits, the payment of
which had effectively revived Potter’s and Lawson’s claims.
In each case the Board reversed holding that Potter and
Lawson were required to file their claims within two years of their
initial injuries, which both failed to do.
Further, in Potter’s
case, the Board reiterated the ALJ’s finding that Potter’s 1997
injury was a mere exacerbation of his 1992 injury.
Because the
latter injury merely aggravated the former injury, the Board held
that the latter injury could not extend the limitations period for
the 1992 injury claim.
Finally, the Board held that once the
limitations period expired on the former injury, the injured
employee’s claim was forever barred and could not be revived by
subsequent TTD payments.
The common issue presented in these appeals is whether
after the limitations period has run for a claim the payment of TTD
benefits revives the claim as to allow an extension of the period
for filing the claim.
In other words, does a claimant have two
years after the last voluntary payment of TTD benefits by an
employer to file a claim if the limitations period has run on the
original injury?
-5-
Although there are no Kentucky cases directly on point,
we have been directed to a number of sources that lend support to
the proposition that the voluntary payment of benefits subsequent
to the running of the filing period for an original injury does not
extend the filing period for a claimant.
in Newberg v. Hudson:1
employers
from
the
As the Supreme Court said
“While statutes of limitation protect
problems
associated
with
litigating
stale
claims, the statutory exception recognizes that a worker may be
lulled into a false sense of security by voluntary payments and
might fail to actively pursue a claim.”2
Therefore, the rationale
behind KRS 342.185(1), which provides that if TTD payments have
been made the claimant has two years from the last payment to file
the claim, is to prevent an employer from paying TTD for two years
and lulling the claimant into believing that the claimant need not
file a claim.
As the Board has pointed out, this rationale no
longer exists if the original time period for filing a claim has
passed.
The courts of several sister states agree with the
Board’s rationale.3
These courts reason that the rationale for
allowing an extension of time if voluntary disability benefits are
paid is to prevent the worker from being lulled into a sense that
the worker does not need to file a claim while the payments are
1
Ky., 838 S.W.2d 384 (1992).
2
Id. at 387.
3
See B.F. Goodrich Co. v. Parker, 209 So.2d 647 (Ala. 1967);
Hodges v. State Road Dep’t, 171 So.2d 523 (Fla. 1965); Brister v.
Wray Dickinson Co., 164 So. 415 (La. 1935); Riccioni v. American
Cynamid Co., 93 A.2d 60 (N.J. Super. Ct. Law Div. 1952); Vaughan v.
Shell Pipe Line Corp., 228 P.2d 180 (Okla. 1951).
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made4 and that the failure to file within the statutory period
renders the worker’s claim “forever barred.”5
Further, Professor
Larson has noted that
voluntary payment leads the claimant to refrain from
making claim and renders the delay reasonable.
When the
policy or purpose disappears, it may be doubted whether
the waiver can survive.
Thus, if the voluntary payment
of compensation is made for the first time after the
entire claim period has run, it cannot be accused of
influencing
withhold
the
making
claimant
as
a
reasonable
claim.
Therefore,
just
person
as
to
actual
knowledge acquired for the first time after the notice
period has run is not a waiver of statutory notice, so
voluntary payment or promise of compensation made only
after
the
claim
period
had
expired
has
been
held
ineffectual to waive the statutory bar.6
We find the rationale of the Board, Professor Larson and
our sister states persuasive.
Once the time period within which a
potential claimant may file a claim has expired, the claim is
“forever barred.”
Because no benefits were paid either to Potter
or Lawson within the two years after each respective claimant’s
accident, it cannot be contended that Potter and Lawson were
“lulled” into believing that they did not need to file their claims
4
See, e.g., Vaughan, supra, n. 3, at 182.
5
See, e.g., Brister, supra, n. 3, at 416.
6
ARTHUR LARSON , LARSON ’S WORKERS ’ COMPENSATION § 78.70 (Desk ed.
1998)(citations omitted).
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within the two years following their accidents, as required by KRS
342.185(1).
“The function of further review of the [Board] in the Court
of Appeals is to correct the 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.”7
The Board did
not err in its analysis of KRS 342.185(1).
Because neither Lawson nor Potter filed a claim within two
years following their initial injury, and because no voluntary TTD
payments were made within the two years, the claims are barred by
the two-year statutory time limit, and the voluntary payment of TTD
after the running of the statute did nothing to revive the claims.
Therefore, both Board decisions are affirmed.
ALL CONCUR.
APPEAL NO. 2000-CA-002322-WC
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WAL-MART
STORES, INC.:
John E. Anderson
COLE, COLE & ANDERSON, P.S.C.
Barbourville, Kentucky
Walter A. Ward
CLARK, WARD & CAVE
Lexington, Kentucky
APPEAL NO. 2000-CA-002598-WC
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE TOYOTA
MANUFACTURING, KENTUCKY, INC.:
Frank M. Jenkins, III
Lexington, Kentucky
7
H. Douglas Jones
Kenneth J. Dietz
Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992).
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H. DOUGLAS JONES & ASSOC.,
P.L.L.C.
Florence, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel D. Zakem
Frankfort, Kentucky
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