WILLIE COUCH v. H. GRAU & SONS, INC.; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 30, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001066-WC
WILLIE COUCH
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-00706
v.
H. GRAU & SONS, INC.;
HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
BARBER, JUDGE:
This is an appeal from an opinion of the Workers’
Compensation Board, affirming the dismissal of this claim by the
ALJ on the ground that it is barred by the statute of
limitations.
Finding no error, we affirm.
The Appellant is Willie Couch (“Couch”).
On June 9,
2000, Couch filed a Form 101 with the Department of Workers’
Claims, alleging a September 13, 1996 injury to his right
shoulder while working for the Appellee, H. Grau & Sons (“the
employer”).
KRS 342.185 provides that a claim must be filed
within two years after the date of the accident.
The statute
further provides that “[i]f payment of income benefits have been
made, the filing of an application for adjustment of claim . . .
shall not be required, but shall become requisite within two (2)
years following the suspension of payments or within two (2)
years of the accident whichever is later.”
Couch did not miss any time from work immediately
following the injury.
He was subsequently off work for his
shoulder a total of three days — two days in July 1997 and one in
August 1998.
personal days.
Couch testified that he took the time off as
No temporary total disability benefits were paid.
In July 1998, before the statute ran, Couch called the insurance
company because his shoulder was not getting any better.
Couch
claims that the adjuster led him to believe that his case would
be “reopened” and approved his seeing a physician.
also approved an MRI and physical therapy.
Couch returned to the physician.
The adjuster
Following therapy,
Upon receipt of the bill, Couch
contacted the adjuster and was informed that the statute of
limitations had run on his claim.
Couch emphasizes that he has
less than a sixth-grade education and is a long-term employee.
The employer explains that Couch missed no time from
work immediately following the injury.
He was seen at St. Luke
Hospital the morning after the injury, a Saturday, and returned
to work the following Monday, with a helper and his arm in a
sling.
Couch wore the sling for eight to ten days.
The employer
notes that Couch sought no further medical treatment for
approximately a year and nine months after the injury.
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The three
days Couch was off work was not at a doctor’s direction; further,
Couch did not advise the adjuster or his employer that he was off
work due to a work-related injury.
According to the employer,
Couch testified that no promises were made to him by the adjuster
about his claim.
The employer maintains that despite his limited
educational background, Couch was not a stranger to the workers’
compensation process having settled two prior claims.
The ALJ dismissed the claim as time barred.
affirmed.
The Board
On appeal to this Court, Couch raises four issues.
He
contends that: (1) the claim is not barred because the insurance
carrier did not file a “first report of accident” or an SF3A to
trigger the “statute of limitations letter” to be sent by the
Department of Workers’ Claims advising that he had two years to
file his claim; (2) the insurance carrier is estopped from
relying on the statute of limitations because “it took advantage”
of Couch; (3) the filing of a petition for reconsideration to
bring the estoppel issue to the ALJ’s attention is not mandatory;
and (4) the payment of medical bills tolled the statute of
limitations.
The unanimous opinion of the Workers’ Compensation
Board contains a thorough discussion of the applicable law, as
set forth below:
On appeal, Couch first argues his claim is
not barred by the statute of limitations
because Grau did not file a first report of
the accident but thereafter paid voluntary
benefits by way of salary in lieu of TTD.
Couch argues that after he was injured he was
required to wear a sling and even though he
reported to work, he could not perform his
regular duties without the assistance of a
helper that was voluntarily provided by Grau.
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Couch contends Grau acted in contradiction of
KRS 342.038 and 342.040 and as such, the
statute of limitations in this claim was
tolled.
KRS 342.038(1) provides in pertinent part,
[w]ithin one week after the occurrence and
and knowledge, as provided in KRS 432.185
to 342.200, of an injury to an employee
causing his absence from work for more
than one (1) day, a report thereof shall
be made to the department in the manner
directed by the commissioner through
administrative regulations.
KRS 342.040(1) provides in part:
no income benefits shall be payable for
the first seven (7) days of disability
unless disability continues for a period
of more than two (2) weeks, in which case
income benefits shall be allowed from the
first day of disability . . . . If the
employer’s insurance carrier or other
party responsible for the payment of
workers’ compensation benefits should
terminate or fail to make payments when
due, that party shall notify the
commissioner of the termination or failure
to make payments and the commissioner
shall, in writing, advise the employee
. . . of right to prosecute a claim under
this chapter.
Couch relies on H.E. Neumann Co. v. Lee, Ky.,
975 S.W.2d 917 (1998), wherein the court
stated:
The purpose of the above referenced
statues is to advise an injured worker, in
writing, of his right to prosecute his
claim, and the time frame in which to do
so, and to provide prompt resolution of
asserted work-related injury claims.
Thus, contrary to the employer’s
assertion, the intended purpose of the
statute would not imply a different
standard based on whether the employer
initially paid voluntary benefits and then
terminated them, or never paid voluntary
benefits, as either way the worker would
be entitled to the intended benefit of the
statutorily mandated written notice.
-4-
Id. at 920.
We believe Couch’s reliance on the holding in
Neumann and the mandates contained in the
above referenced statutes is misplaced. In
the instant case, Couch missed absolutely no
work subsequent to his September 1996 injury.
The evidence is uncontroverted that he missed
two days of work in July 1997 and one day in
August 1998, however, he never informed his
employer that this was the result of a workrelated injury. In fact, Couch testified
that he either took vacation or sick time to
attend to his medical needs. During this
entire period, he received his regular
salary.
Generally, when wages are continued after a
work-related injury such payments may be
considered “in lieu of” compensation benefits
if intended by the parties. As such, those
payments of course would extend the statute
of limitations for an additional two-year
period after the last voluntary payment. See
KRS 342.185; Kentucky West Virginia Gas Co.
v. Spurlock, Ky., 415 S.W.2d 849 (1967);
Kentucky Safety Council v. Hack, Ky., 414
S.W.2d 877 (1967). Both of the above cited
cases involve salary continuation of
claimant’s who were “off work.” We have been
directed to no authority, nor can we find
any, which stands for proposition that a
worker who after an injury misses no work but
continues to receive his regular salary, even
though he may be working with restrictions,
could be deemed as receiving that pay in lieu
of “statutory benefits.”
In H.E. Neumann Co. v. Lee, supra, the
claimant was absent from work for a
sufficient period of time to entitle him to
TTD benefits and the employer was required to
report the injury even though it had not made
TTD payments. Couch was simply not absent
from work for more than one day after his
injury, nor did he notify Grau that his three
days of nonsequential absenteeism which
occurred more than a year later were in any
way connected to his shoulder injury. The
requirement of employer notice was never
triggered and the commissioner was therefore
not under the resultant duty to advise Couch
of his right to prosecute a claim. Newburg
v. Hudson, Ky., 838 S.W.2d 384 (1982). As
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Couch’s injury occurred on September 13,
1996, his claim should have been filed no
later than two years subsequent to that date,
and as such we can find no error on the part
of the ALJ.
Couch secondly argues that the insurance
company should be estopped from relying on
the statute of limitations because it took
advantage of him. This issue was presented
to the ALJ; however, he did not address it in
his decision. Unfortunately, Couch did not
request additional findings via a petition
for reconsideration. This issue is not
preserved for purposes of appellate review.
See Easton Axle Corp. v. Nally, Ky., 688
S.W.2d 334 (1985); Hall’s Hardwood Floor Co.
v. Stapleton, Ky. App., 16 S.W.3d 327 (2000).
We would note however, that even if we were
to rely on the uncontradicted testimony of
Couch, he is not entitled to the relief
sought as a matter of law. Couch testified
that in July 1998 he phoned a claims adjuster
to apparently seek authorization for an MRI.
He stated the claims adjuster told him that
his case had been closed but that she would
reopen it. The diagnostic testing and
attendant physicians’ fees were paid. Couch
again sought advanced authorization for
physical therapy, and the fees associated
with that treatment were again paid. In
October 1998, while inquiring as to the
nonpayment of a doctor’s bill, he was
informed by the adjuster that the statute of
limitations had run. Those facts, standing
alone, as a matter of law will not support an
assertion that the insurance carrier engaged
in false representation or fraudulent
concealment which would extend the statute of
limitations. See Emmert v. Jefferson County
Board of Education, Ky., 479 S.W.2d 621
(1972); Logan Manufacturing Co. v. Bradley,
Ky., 476 S.W.2d 819 (1972); Moore v.
Seagraves Coal Co., Ky., 441 S.W.2d 771
(1969). In the instant case, there is no
substantive evidence that any assurances were
made to Couch by either the employer or the
insurance carrier that his claims would be
paid. Further, there is no authority that an
insurance carrier must notify a potentially
adverse party that his right to file a claim
is about to expire.
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Finally, Couch argues that payment of his
medical expenses in July and August 1998 for
his 1996 injury tolled the statute of
limitations. The ALJ did not address this
argument, and as previously noted no petition
for reconsideration was filed. Again, we
find no merit as a matter of law in Couch’s
assertion. As set out above, KRS 342.185
refers to payment of “income benefits.” KRS
342.0011(12) defines income benefits as
“payments made under the provisions of this
chapter to the disabled worker or his
dependents in case of death, excluding
medical and related benefits.” (Emphasis
added.) Further, the courts have
specifically held that payment of medical
expenses does not constitute voluntary
payment of compensation. Emmert v. Jefferson
County Board of Education, supra.
For the foregoing reasons, the decision of
the ALJ is AFFIRMED.
We concur in the Board’s reasoning and affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Bernard J. Blau
Jolly, Blau, Kriege & Turner
Cold Springs, Kentucky
George T. Kitchen, III
Boehl, Stopher & Graves
Louisville, Kentucky
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