ANGIE PATRICK V. CHRISTOPHER EAST HEALTH CARE ; HON . ROGER D . RIGGS, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
CORRECTED : August 27, 2004
RENDERED : August 26, 2004
HF."
,$uYrrmr Qfllaurf of
41
2003-SC-0678-WC
ANGIE PATRICK
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-0269-WC
WORKERS' COMPENSATION BOARD NO . 99-60803
CHRISTOPHER EAST HEALTH CARE ;
HON . ROGER D . RIGGS, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) dismissed the claimant's application for
benefits on the ground that it was filed more than two years after the date of injury and,
therefore, was barred by KRS 342.185. The Workers' Compensation Board and the
Court of Appeals affirmed . Appealing, the claimant maintains that her application was
timely because the period of limitations was tolled by the employer's delay in notifying
the Department of Workers' Claims (Department) of its refusal to pay voluntary
temporary total disability (TTD) benefits . We affirm .
On September 12, 1999, the claimant injured her back while working . She
notified her supervisor immediately and sought medical treatment . She testified that
she worked for one day after the injury and has not worked since then . The employer
failed to pay voluntary TTD benefits .
The employer filed a Form IA-1 (First Report of Injury) with the Department on
October 26, 1999. On November 19, 1999, the employer filed a Form IA-2 (Subsequent
Report of Injury), indicating that it was denying the claim. On that same day, the
Department issued a letter to the claimant which stated, in pertinent part, as follows :
RE : File: 99-60803
Injury Date: 9/12/99
The Department of Workers Claims recently received notice from
your employer's workers compensation claims administrator that
your claim alleging a work-related injury/illness had been denied .
It you are disabled, or, require medical treatment as the result of an
injury or disease arising out of your employment, you may file an
`Application for Resolution of Claim' with the Department. A claim,
including one for medical expenses, must be filed within two years
after the date your injury occurred, or, within two years after your
employer or its insurance carrier/claims administrator last made a
voluntary payment of income benefits to you .
If you fail to file a claim for benefits within the above time frame,
any claim for benefits will be barred as a result of this injury/illness .
The claimant testified that she received the Department's letter sometime in November,
1999 . She filed an application for benefits on September 28, 2001 . The employer
asserted, however, that it was barred by limitations .
Relying on 803 KAR 25 :170, Section 2(2)(a), the claimant argued that the period
of limitations was tolled by the employer's failure to inform the Department within one
week of its refusal to pay voluntary TTD . The ALJ rejected the argument, however, on
the ground that the regulation did not apply to a refusal to pay benefits . Furthermore,
the AU determined that City of Frankfort v. Rogers , Ky. App., 765 S.W .2d 579 (1988),
was distinguishable inasmuch as, there, the employer had failed to notify the
Department of the worker's injury altogether . Noting that the claimant received no TTD
benefits ; that in November, 1999, she received the Department's letter informing her
that a claim must be filed within two years of the date of injury; and that she failed to file
her application within two years of the date of injury, the ALJ determined that the claim
was barred by limitations and dismissed it.
The applicable versions of KRS 342.038(1) and (3) require employers to keep a
record of all injuries that occur in the course of the employment and to notify their
workers' compensation insurance carrier of any work-related injury within three working
days of being notified of the underlying incident. KRS 342 .038(1) also requires the
employer to notify the Department of Workers' Claims within one week of an injury that
causes a worker to be absent from work for more than one day. The form that is used
to provide such notice is the IA-1 .
KRS 342 .040(1) provides, in pertinent part, as follows :
. 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 . All income benefits shall be payable on the regular payday of
the employer, commencing with the first regular payday after seven (7)
days after the injury or disability resulting from an occupational disease,
with interest at the rate of twelve percent (12%) per annum on each
installment from the time it is due until paid . . . . In no event shall income
benefits be instituted later than the fifteenth day after the employer has
knowledge of the disability or death . Income benefits shall be due and
payable not less often than semimonthly. 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 or known dependent of right to prosecute a claim under this
chapter.
KRS 342 .185 provides that a claim must be filed within two years of the date of
accident or within two years of the last payment of voluntary income benefits, whichever is
later. It has long been recognized that KRS 342 .185 operates together with KRS
342 .040(1) and tolls the period of limitations until after the payment of voluntary income
benefits ceases. This is to protect injured workers from being lulled into a false sense of
security by receiving such payments and, therefore, failing to actively pursue a claim . See
City of Frankfort v. Rowers , supra at 580. Likewise, KRS 342.040(1) clearly requires an
employer who fails to pay income benefits that are due to notify the commissioner of such
failure . An employer who fails to comply with KRS 342 .040(1) is not permitted to raise a
limitations defense because its action effectively prevents the commissioner from
complying with its duty under KRS 342 .040(1) to notify the worker of his right to prosecute
a claim and of the applicable period of limitations . Id . By requiring an employer to file a
Form IA-1 when an injured worker misses more than one day of work due to a work-related
injury, KRS 342 .038(1) puts the employer on record as admitting the existence of the injury .
This prevents the employer from later manufacturing a limitations defense by denying
knowledge of the injury and asserting, therefore, that it had no obligation under
KRS 342 .040(1) to notify the commissioner that it either terminated or failed to pay income
benefits that were due .
Effective February 18, 1999, 803 KAR 25:170, Section 2 provided, in pertinent
part, as follows:
(2)
Beginning with work-related injuries and occupational diseases
reported to employers on or after January 1, 1996, each carrier shall file
the information required on the Form IA-2 with the data collection agent or
a value added network designated by the Department of Workers' Claims,
in electronic format:
(a) As soon as practicable and not later than one (1) week from the date
payments to an employee are commenced, terminated, changed, or
resumed . . . . (emphasis added) .
It is apparent that 803 KAR 25 :170, Section 2 (2)(a) helps to effectuate KRS
342 .040(1) and KRS 342 .185 by stating a time within which the Department must be
notified that voluntary TTD is commenced, terminated, changed, or resumed .
It is
equally apparent that the regulation does not pertain to situations where no voluntary
4
benefits are paid and does not require an employer to notify the Department within one
week of its refusal to pay voluntary TTD benefits .
KRS 342 .990 provides civil penalties for violations of KRS 342 .038 and KRS
342 .040 . Estoppel is an equitable remedy, the application of which depends on the facts
and circumstances of each case. See Lizdo v. Gentec Equipment , Ky., 74 S .W .3d 703
(2002); J & V Coal Co. v. Hall, Ky., 62 S .W.3d 392 (2001). As we explained in Newberg y.
Hudson , Ky., 838 S .W .2d 384, 389 (1992), estoppel is generally reserved for situations
where there is evidence of misconduct on the employer's part, such as attempting to
manufacture a limitations defense . Mr. Hudson's employer failed to report his injury to the
Department because he did not miss more than a day's work until some time after it
occurred, and he failed to inform his employer that the injury was the reason for his
absence. We determined, therefore, that the application of an equitable remedy was
unwarranted . In contrast, in H . E. Neumann Co . v. Lee, Ky., 975 S.W.2d 917 (1998), we
determined that the employer was estopped from asserting a limitations defense because,
despite knowledge of Mr. Lee's injury and alleged disability, it failed to notify the
Department within two years after the injury that it was refusing to pay voluntary TTD
benefits . Thus, the Department was prevented from notifying Lee of the applicable period
of limitations before it expired .
It is undisputed that the claimant's employer was obliged to notify the Department of
its refusal to pay TTD benefits and that it did so approximately two months after the injury.
The claimant asserts that the employer's delay in notifying the Department of its refusal to
pay TTD benefits tolled the period of limitations and that she was entitled to two full years
from its refusal to file a claim . The fact remains, however, that KRS 342 .185 runs the
period of limitations for an injury for two years from the date of accident or from the
employer's last voluntary payment of income benefits, not from the date that the employer
refuses to pay voluntary benefits . This was not a case where the claimant was lulled into a
false sense of security by the payment of voluntary income benefits. Nor was it a case
where the employer's delay was of such duration that it deprived her of notice from the
Department while a reasonable time remained in which to file a claim.
The claimant's injury occurred on September 12, 1999 . She testified that she
received the Department's letter in November, 1999 . It informed her that the employer
denied the claim; that she was required to file an application for benefits if she was
disabled or required medical treatment ; and that the period of limitations for doing so
was two years after the date the injury occurred . Yet, she failed to file her application
until September 28, 2001, after two-year period expired . Under the circumstances, we
are not persuaded that the application of an equitable remedy was compelled or that the
ALJ erred in rejecting the claimant's argument and dismissing the claim .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
James D . Howes
George M . Streckfus
Howes & Associates
Watterson City West, Ste. 1020
1941 Bishop Lane
Louisville, KY 40218
COUNSEL FOR APPELLEE:
Laurie Goetz Kemp
Woodward, Hobson & Fulton
2500 National City Tower
Louisville, KY 40202
,,SixyrtzttP
Courf of ~6nfu~6nfuxhV
2003-SC-0678-WC
ANGIE PATRICK
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-0269-WC
WORKERS' COMPENSATION BOARD NO. 99-60803
CHRISTOPHER EAST HEALTH CARE ;
HON . ROGER D. RIGGS, ADMINISTRATIVE
LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
APPELLEES
ORDER CORRECTING OPINION
On the Court's own motion, pages two and four of the opinion that was rendered
in the above-styled matter on August 26, 2004, are hereby corrected to replace all
references to "803 KAR 25 :010" with "803 KAR 25 :170." This correction is made only to
correct a typographical error and does not affect the holding . Hereto attached is a copy
of the corrected pages.
Entered : August 27, 2004.
A LAIEF JUSTICE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
