VIOLA MOORE v. TRI-COUNTY ASSEMBLIES, TRI-COUNTY ASSEMBLIES, SPECIAL FUND; DENIS KLINE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD TRI COUNTY ASSEMBLIES, AS INSURED BY OLD REPUBLIC INSURANCE COMPANY CROSS- VIOLA MOORE; TRI COUNTY ASSEMBLIES, MUTUAL INSURANCE COMPANY; HON. DENIS KLINE, ADMINISTRATIVE LAW JUDGE; SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001439-WC
VIOLA MOORE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-01769
TRI-COUNTY ASSEMBLIES,
AS INSURED BY KEMI;
TRI-COUNTY ASSEMBLIES,
AS INSURED BY OLD REPUBLIC;
SPECIAL FUND; DENIS KLINE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
CROSS-APPEAL NO. 2000-CA-001596-WC
TRI COUNTY ASSEMBLIES, AS INSURED BY
OLD REPUBLIC INSURANCE COMPANY
v.
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-01769
VIOLA MOORE; TRI COUNTY ASSEMBLIES,
AS INSURED BY KENTUCKY EMPLOYERS'
MUTUAL INSURANCE COMPANY;
HON. DENIS KLINE,
ADMINISTRATIVE LAW JUDGE;
SPECIAL FUND; AND
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
CROSS-APPEAL NO. 2000-CA-001602-WC
TRI-COUNTY ASSEMBLIES, AS AN
INSURED OF KENTUCKY EMPLOYERS'
MUTUAL INSURANCE COMPANY
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-26810
v.
VIOLA MOORE; TRI-COUNTY
ASSEMBLIES, AS INSURED BY
OLD REPUBLIC INSURANCE COMPANY;
ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND;
HON. DENIS S. KLINE,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
These petitions spring from an opinion of the
Workers' Compensation Board rendered May 12, 2000.
We affirm.
On November 12, 1998, Moore filed the instant claim for
workers' compensation benefits.
Therein, she alleged to have
developed carpel tunnel syndrome as a result of cumulative work
injury which manifested itself on April 2, 1997.
Moore's
employer was Tri-County Assemblies (Tri-County).
At the time,
Tri-County's compensation insurance carrier was Kentucky
Employers Mutual Insurance (KEMI).
KEMI immediately raised the
defense of statute of limitations and also moved to join Tri-
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County's previous insurance carrier, Old Republic Insurance
Company (ORIC) as a party defendant to the claim.
KEMI asserted
that Moore sustained two injuries to her upper extremities in
accidents on May 17, 1996, and May 20, 1996, while ORIC was TriCounty's insurance carrier.
KEMI maintained that any alleged
disability was the direct result of the 1996 injuries and not the
result of any cumulative injury that manifested in April of 1997.
ORIC was joined as a party on February 16, 1999.
On March 30, 1999, an arbitrator issued a “Benefit
Review Determination” denying Moore benefits.
The arbitrator
found that Moore suffered no permanent disability.
Moore
appealed the decision and requested a formal hearing before an
administrative law judge (ALJ).
On November 27, 1999, the ALJ
likewise dismissed Moore's claims on the grounds that there was
no cumulative injury which manifested itself on April 2, 1997,
and furthermore, that Moore's claim was barred by the statute of
limitations as found in Kentucky Revised Statutes (KRS) 342.185.
The matter then came before the Workers' Compensation Board (the
board) for its consideration.
On May 12, 2000, the board
affirmed the dismissal of Moore's claim.
The board held that the
ALJ correctly found that there was no evidence of cumulative
injury which manifested itself in April of 1997.
The board,
however, concluded that the statute of limitations (KRS 342.185)
was tolled on Moore's May 1996 injuries.
Moore files a petition
for review, and KEMI and ORIC file cross-petitions for review
from the board's decision.
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In her petition for review, Moore contends the ALJ
committed reversible error by concluding that her claim was
untimely filed and that she suffered no occupational disability
as a result of a cumulative injury which manifested in April
1997.
Moore, however, cites this Court to no legal precedent to
support her argument.
Moore's argument for reversing the ALJ is
as follows:
Based upon the evidence of a finding of
permanent partial occupational disability due
to cumulative trauma which manifested itself
in April of 1997, the Court of Appeals should
reverse and remand this claim back to the
Administrative Law Judge for an entry of an
Opinion and Award to mandate such findings.
As Moore has failed to cite to this Court any legal precedent or
substantial legal argument to support her claim, we are
constrained to summarily affirm.
In its cross-petitions for review, KEMI and ORIC both
challenge the board's conclusion that the statute of limitations
concerning the May 1996 injuries was tolled.
Upon this issue, we
perceive the board's reasoning as sound and adopt same herein:
We agree with Moore that the statute of
limitations regarding the May 1996 injuries
would be tolled in this case. As pointed out
by Tri-County/KEMI, the statute of
limitations is not tolled by failure to file
an SF-1 but by failure to file an SF-3A.
However, we believe that an obligation to
file an SF-3A did arise when Moore missed
work in April 1997. KRS 342.040(1) provides
in pertinent part:
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
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termination or failure to make
payments and the commissioner
shall, in writing, advise the
employee or known dependent of the
right to prosecute a claim under
this chapter. (Emphasis added.)
It is well-settled that if the Department is
not informed of the termination or failure to
make payments, the statute of limitations is
tolled. Colt Management Co. v. Carter, Ky.
App., 907 S.W.2d 169 (1995); H. E. Neumann
Co. v. Lee, . . . [Ky., 975 S.W.2d 917
(1988)]; and City of Frankfort v. Rogers, Ky.
App., 765 S.W.2d 579 (1988). The cause of
the employer's failure to notify the
Department is immaterial. Ingersoll-Rand v.
Whitaker, Ky. App., 883 S.W.2d 514 (1994).
It is clear from the record that Tri-County
was informed that Moore's absence from work
in April 1997 was due to her carpal tunnel
syndrome. Since Moore missed more than seven
days of work in 1997, TTD benefits would have
been payable. KRS 342.040(1). The statute
does not require notice to the Department
only upon termination of benefits that are
paid, but also upon a failure to make paid
benefits when due. TTD benefits would have
been due to Moore when she missed more than
seven days of work as a result of her workrelated condition. An SF-3A should,
therefore, have been filed in April 1997 upon
failure to pay Moore's TTD benefits. Since
no SF-3A was filed, the statute of
limitations regarding the May 1996 injuries
would have been tolled.
We are inclined to agree with the board that the
statute of limitations found in KRS 342.185 is tolled as to the
May 1996 injuries.
As such, we reject both KEMI and ORIC's
contention to the contrary.
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
GUIDUGLI, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, CONCURS IN PART, DISSENTS IN PART
AND FILES SEPARATE OPINION.
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BUCKINGHAM, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I agree with the separate opinion of Board Member Lovan.
Because Moore had not made a claim for the 1996 injury, it was
inappropriate to determine whether the statute of limitations was
tolled or not.
Furthermore, under the evidence as it appears to
be, there was no indication to Tri-County/Old Republic that
Moore’s cessation of work in April 1997 had anything to do with
the May 1996 incidents.
Therefore, the failure to file an SF-1
or an SF-3A should not toll the statute of limitations for any
1996 injury.
BRIEF FOR APPELLANT/CROSSAPPELLEE, VIOLA MOORE:
BRIEFS FOR APPELLEE/CROSSAPPELLANT, TRI-COUNTY
ASSEMBLIES, AS INSURED BY OLD
REPUBLIC INSURANCE COMPANY:
John E. Anderson
Barbourville, Kentucky
J. Gregory Allen
Prestonsburg, Kentucky
BRIEFS FOR APPELLEE/CROSSAPPELLANT, TRI-COUNTY
MANUFACTURING AND ASSEMBLY,
INC., AS INSURED BY KENTUCKY
EMPLOYERS' MUTUAL INSURANCE:
W. Barry Lewis
Hazard, Kentucky
BRIEF FOR APPELLEE, SPECIAL
FUND:
John Burrell
Frankfort, Kentucky
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