JEFFERSON COUNTY ATTORNEY v. MARY ANN TAYLOR; A.B. CHANDLER, III, ATTORNEY GENERAL; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 21, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000205-WC
JEFFERSON COUNTY ATTORNEY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-01149
MARY ANN TAYLOR;
A.B. CHANDLER, III, ATTORNEY GENERAL;
DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
The Jefferson County Attorney petitions for
review of a decision of the Workers’ Compensation Board which
remanded in part an award of the Administrative Law Judge for
findings on temporary total disability (TTD).
The employer
contends the Board erred in deciding that the statute of
limitations was tolled and in remanding for the amount of TTD.
We agree with the Board.
The employer’s failure to file a First
Report of Injury tolled the statute.
Also we believe the issue
of TTD was before the ALJ when the parties stated that an issue
for the ALJ was “the extent and duration of disability”.
Thus,
we affirm.
Mary Ann Taylor was an employee of the Jefferson County
Attorney’s office when she began experiencing pain in December of
1999 which was diagnosed as carpal tunnel syndrome.
The employer
admits on page four of its brief, and the ALJ found, that Mary
Ann did report the injury to her supervisor and she believed her
condition to be caused by her work activity.
Mary Ann never
filed for interim benefits, although she lost work and underwent
surgery.
Attempts to return to work failed because she
experienced too much pain.
Ultimately, she filed the claim in
question.
At the hearing before the ALJ, the parties entered into
eleven stipulations, including timely notice to the employer.
However, the ALJ found that the employer never filed a First
Report of Injury to the Department of Workers’ Claims until
March 17, 2000, and that this error tolled the statute of
limitations.
The ALJ found that disability started on April 7,
1997, when Dr. Fox first operated on Mary Ann.
Although the ALJ
believed the employee was totally disabled, he found that there
was no assessment of medical impairment based on the AMA Guides
and that failure of proof precluded an award of permanent
disability under the current statute.
On appeal to the Board, the Board upheld the denial of
an award of permanent total disability because the employee
failed to introduce the AMA Guides, as required under KRS
342.0011(11)(c).
However, the Board recognized that the ALJ had
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the extent and duration of disability before it and that included
temporary total disability benefits.
Also, the ALJ made detailed
findings as to time off due to the injury, but failed to
determine the period of maximum medical improvement - the time
when TTD ended and total permanent disability (TPD) started.
The
Board remanded the matter back to the ALJ for further findings on
TTD.
On appeal to this Court, the employer contends the
Board erred in deciding the statute of limitations was tolled and
in remanding to determine the TTD benefits.
Although the
employer contends the case of Alcan Foil Products v. Huff, Ky., 2
S.W.3d 96 (1999) is dispositive of the first argument, we
disagree.
Although Alcan involved the statute of limitations in
the case of cumulative trauma cases, the issue revolved around
notice to the employer.
In the case sub judice, we have a
stipulation and finding of notice with a filing over two years
later.
Both sides agree it would take a tolling to save the
employee’s case.
The ALJ and the Board both concluded the
employer’s failure to file a First Report of Injury with the
Department tolled the statute.
We agree.
KRS 342.185 requires
the employee to give the employer prompt notice of an injury.
After the employer receives notice, the employer is required to
notify the Department of Workers’ Claims by filing a First Report
of Injury.
KRS 342.038; KRS 342.040; 803 KAR 25:170.
The
Department must then notify the injured worker that she has so
much time from the date of injury to file a claim.
KRS 342.040.
Until the claimant received notice, the employer is estopped from
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asserting the statute of limitations.
Colt Management Co. v.
Carter, Ky. App., 907 S.W.2d 169 (1995).
Failure to give
statutory notifications results in tolling the statute of
limitations.
H.E. Neumann Co. v. Lee, Ky., 975 S.W.2d 917
(1998).
The employer’s second alleged error is also without
merit.
The employer contends the remand to the ALJ is giving the
employee a second bite at the apple.
We disagree.
The ALJ found
specific periods Mary Ann missed work due to the injury.
The ALJ
also found the injury progressed to TPD but did not award
benefits because the employee failed to include statutory
evidence for TPD.
There is no requirement for use of the AMA
Guides in finding TTD.
The ALJ just has to determine maximum
medical improvement to see when TTD ends and TPD begins.
That is
an issue of fact and part of the “extent and duration” of
disability.
Under Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685 (1992), the ALJ finds the facts and both the Board and
this Court review those findings, not decide the facts de novo.
Our review reveals no errors.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MARY ANN
TAYLOR:
James T. Mitchell
Louisville, Kentucky
Ben T. Haydon, Jr.
Thomas A. Dockter
Bardstown, Kentucky
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