AUBURN HOSIERY MILLS, INC ., AS INSURED BY KENTUCKY INSURANCE GUARANTY ASSOCIATION V ELVIS BIKIC ; AUBURN HOSIERY MILLS, INC ., AS INSURED BY KEMPER INSURANCE COMPANY ; AUBURN HOSIERY MILLS, INC ., AS INSURED BY GREAT AMERICAN INSURANCE COMPANY ; HON . LLOYD R . EDENS, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PR OCED URE PR OMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : May 19, 2005
NOT TO BE PUBLISHED
,,Suyrrntr C~auzf of
2004-SC-0483-WC
AUBURN HOSIERY MILLS, INC., AS
INSURED BY KENTUCKY INSURANCE
GUARANTY ASSOCIATION
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-2587-WC
WORKERS' COMPENSATION BOARD NO . 02-92911
ELVIS BIKIC ; AUBURN HOSIERY MILLS, INC ., AS
INSURED BY KEMPER INSURANCE COMPANY ;
AUBURN HOSIERY MILLS, INC ., AS INSURED
BY GREAT AMERICAN INSURANCE COMPANY ;
HON . LLOYD R. EDENS, ADMINISTRATIVE LAW
JUDGE; AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Although the claimant's application for benefits was filed more than two years
after his work-related back injury, an Administrative Law Judge (ALJ) determined that
the period of limitations was tolled by the employer's failure to notify the Department of
Workers' Claims (Department) of its refusal to pay temporary total disability (TTD)
benefits when he underwent surgery for the effects of the injury . H. E . Neumann Co. v.
Lee , 975 S .W.2d 917 (Ky. 1998). The Workers' Compensation Board (Board) reversed,
stating that the surgery occurred long after the injury and that there was no evidence the
claimant informed his employer that it was due to the injury. Reversing and reinstating
the award, the Court of Appeals pointed to the claimant's unrebutted testimony that he
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had inquired about disability benefits when he missed work and also about payment of
his medical bills. We affirm .
The claimant, a Bosnian national, was born in 1980 . He completed high school
and one year of college in Germany before coming to the United States in November,
1999 . In January, 2000, he began working for the defendant-employer, supplying yarn
to knitting machines . At the time, he did not speak English .
On April 23, 2000, the claimant felt severe pain in his low back while helping a
co-worker lift a large box of yarn that weighed 50-60 pounds. The co-worker
accompanied him to their supervisor and informed the supervisor of the incident. The
claimant testified that he was still unable to speak English and didn't ask about a doctor.
His supervisor gave him a belt, and he completed the shift . He spoke with a case
worker at the refugee office who made an appointment with Dr. Fee and then
accompanied him to the appointment to translate .
Dr. Fee examined the claimant at Western Kentucky Orthopaedic Associates on
May 23, 2000 . The claimant gave a history of back pain, sometimes into the right leg,
that began while bending over to pick up something at work. He stated that the initial
pain was severe and that for a moment his eyes went black and he felt lightheaded . Dr.
Fee diagnosed a lumbar strain injury. He imposed no specific restrictions but
prescribed back exercises, anti-inflammatory medication, and muscle relaxers and
scheduled a follow-up appointment .
On November 6, 2000, the claimant slipped in oil and fell, after which he
experienced severe back pain and was unable to move. He was taken by ambulance to
Logan Memorial Hospital, where his complaints included pain in the back and down the
right leg. He was diagnosed with an acute lumbar strain and returned to work the
following day.
On August 17, 2001, the claimant experienced back pain while working . He
testified that he informed his supervisor immediately . Logan Memorial Hospital records
dated August 18, 2001, indicate that the claimant sought treatment primarily for pain in
the left flank but also for chest and back pain. He was diagnosed with acute renal colic.
On September 18, 2001, the claimant returned to Dr. Fee, complaining of
increased back and leg pain since an injury about a month earlier . He also complained
of numbness and tingling down the back of the leg to his heel, but x-rays revealed a
normal lumbar spine . Dr. Fee diagnosed a possible herniated disc and ordered an MRI .
The September 26, 2001, MRI report noted a small to moderate right paracentral L5-S1
disc protrusion, likely impinging on the adjacent S1 nerve rootlet. On October 1, 2001,
Dr. Fee noted that the claimant was able to continue working . He had begun physical
therapy and was taking medication but wanted to avoid injections or surgery for the time
being .
The claimant's condition continued to deteriorate . On November 15, 2001, he
saw Dr. Villarreal of the Medical Center at Bowling Green pain clinic. Dr. Villarreal
noted that the claimant had experienced chronic back and leg pain since an incident
while lifting boxes at work in March or April, 2000. Dr. Villarreal characterized the
momentary loss of vision and lightheadedness that the claimant described following the
incident as probably being a vagal response to the onset of severe pain . He diagnosed
a work-related injury involving the L5-S1 disc and recommended epidural injections .
Beginning on November 19, 2001, the claimant's pain caused him to quit
working .
Shortly thereafter, Dr. Fee referred him to Dr. Olson, who performed back
surgeries in January and April, 2002 . The claimant was able to return to work on May
13, 2002 . He was later restricted from lifting more than 35 pounds and from working
more than eight-hour shifts . Eventually, he was released to twelve-hour shifts.
Dr. Chou, a specialist in physical medicine and rehabilitation, saw the claimant
on July 29, 2002 . Dr. Chou conducted a physical examination and a review of the
medical records . He assigned a 13% impairment based on DIRE lumbar Category III
and restricted the claimant from lifting more than 15 pounds and from bending or
twisting at the waist .
Filed on July 19, 2002, the claimant's application for benefits alleged workrelated lower back injuries of April 23, 2000 ; November 6, 2000; and August 17, 2001 .
When deposed, the claimant was asked whether medical bills from the second and third
incidents were sent to his health insurance carrier . He testified that he took all of his
medical bills to Sharon, the individual who handled insurance matters for the company,
because he did not understand them . After he began missing work, he asked her about
disability benefits but was informed that the absence was not work-related . The
testimony indicates that the employer took the same position regarding Dr. Fee's bills.
At the hearing, the claimant testified that he had undergone two surgeries to his
lower back as well as surgery for kidney stones. He stated that he informed his
supervisor of each work-related incident. He also testified that he experienced almost
continuous pain in his back and leg from the initial incident, that it became more severe
after each of the subsequent incidents, and that the surgeries relieved it. He stated that
the employer terminated him in November, 2002, after which he worked briefly in
another factory. Presently, he was looking for non-factory employment due to personal
preference rather than his back condition .
After summarizing the voluminous medical evidence, the AU determined that the
claimant sustained a work-related back injury on April 23, 2000, and gave timely notice .
The AU noted that although the initial medical reports indicated that the incident
caused only a lumbar strain, the claimant's complaints from the outset had included leg
pain . Furthermore, he testified that his pain was continuous after the initial injury, and
the medical records supported the testimony . Relying on the records of Drs . Fee and
Olson and their associates as well as Dr. Chou's report, the ALJ concluded that the disc
herniation resulted from the April, 2000, injury; that it caused the impairment ; and that
the subsequent incidents were exacerbations of the initial injury . See Calloway County
Fiscal Court v. Winchester, 557 S.W.2d 216 (Ky. App. 1977). Therefore, the carrier that
provided coverage on April 23, 2000, was liable for income and medical benefits .
Turning to the question of limitations, the ALJ noted that although the claimant's
application was filed more than two years after the date of injury, the parties had
stipulated to his absence from work from November 19, 2001, until May 13, 2002 .
During that time, the claimant had undergone two back surgeries, both within the period
of limitations, but the employer refused to pay any TTD benefits and failed to notify the
Department of Workers' Claims of its refusal . The AU determined that the injury
caused the claimant to be temporarily totally disabled during the period that he missed
work and that he did not receive the benefits to which he was entitled or the required
letter, notifying him of the need to file a claim and of the applicable period of limitations .
KRS 342 .040(1) . On that basis, the AU concluded that the employer's failure to comply
with KRS 342 .040(1) tolled the period of limitations until May 13, 2004. H . E. Neumann
Co. v. Lee , supra .
KRS 342 .040(1) provides, in pertinent part, as follows :
(1) Except as provided in KRS 342.020, 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 or known dependent of right to
prosecute a claim under this chapter.
KRS 342.040(1) places an affirmative duty on an employer to notify the
Department of its refusal to pay TTD benefits after a worker misses more than seven
days of work due to a work-related injury . Absent extraordinary circumstances such as
were present in Newberg v. Hudson, 838 S .W .2d 384, 389 (Ky . 1992), an employer's
failure to comply with KRS 342 .040(1) tolls the period of limitations without regard to
whether the failure is attributable to bad faith or misconduct because it prevents the
Department from advising the worker of the right to file a claim and the applicable period
of limitations . See H . E . Neumann Co . v. Lee , supra at 921 ; Colt Management Co . v.
Carter , 907 S .W .2d 169 (Ky. App. 1995) ; and Ingersoll-Rand Co. v. Whittaker, 883
S.W .2d 514 (Ky . App . 1994). Hence, the burden of proving the existence of such
circumstances is on the employer.
In Newberg v. Hudson, supra, the worker's first absence from work for more than
one day occurred more than a month after the work-related accident . Given a form to
apply for weekly sickness payments under a company policy, the worker failed to
complete a question asking whether the absence was due to an accident and, if so,
when it occurred, whether it occurred at work, and how it occurred . Unaware that the
absence was due to the work-related accident, the employer did not notify the
Department that it failed to pay TTD benefits. Concluding that the application of an
equitable remedy was unwarranted under such circumstances, the court noted that not
6
only was there was no hint of employer bad faith or misconduct, the employer had
attempted to determine the reason for the worker's absence to no avail .
Although the claimant's period of TTD began nearly 19 months after his injury,
this case is not akin to Newberg v. Hudson , supra . The claimant's unrebutted testimony
established that he brought his medical bills to the individual who handled insurance
matters and that he inquired about disability benefits, but the employer refused to pay
them . Under the circumstances, it was reasonable for the ALJ to infer that the employer
knew the reason for the claimant's absence from work and to conclude that its refusal to
pay TTD coupled with its failure to comply with KRS 342 .040(1) tolled the period of
limitations and rendered the claimant's application timely.
Contrary to the employer's assertion, Mengel v. Hawaiian-Tropic Northwest &
Central Distributors . Inc. , 618 S .W.2d 184, 186-87 (Ky. App . 1981), does not require
that the finding of causation be reversed . In Mengel , the finding was reversed because
it was based upon the fact-finder's own observations and contrary to all of the medical
evidence . Nothing in Men-gel prohibits a fact-finder from making reasonable inferences
that are consistent with the medical evidence . When considered in chronological order,
the records from Drs. Fee, Olson, and Chou provide substantial evidence from which
the ALJ could reasonably conclude that the claimant sustained an injury on April 23,
2000; that the injury caused a herniated disc, necessitated the two surgeries, and left
the claimant with a 13% impairment ; and that the subsequent events exacerbated the
injury, causing symptoms but no new injury .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
George T. Kitchen, III
Rodney J . Mayer
U'Sellis & Kitchen, PSC
600 East Main Street, Ste. 100
Louisville, KY 40202
COUNSEL FOR APPELLEE, ELVIS BIKIC:
James D. Howes
Howes & Paige, PLLC
Watterson City West, Suite 1020
1941 Bishop Lane
Louisville, KY 40218
COUNSEL FOR APPELLEE, AUBURN HOSIERY MILLS
(AS INSURED BY KEMPER INSURANCE COMPANY):
James R. Carpenter
Gallion, Baker & Bray, PSC
PNC Bank Plaza
200 West Vine Street, Ste . 710
Lexington, KY 40507-1620
COUNSEL FOR APPELLEE, AUBURN HOSIERY MILLS
(AS INSURED BY GREAT AMERICAN INSURANCE COMPANY) :
Steven D . Goodrum
Clark, Ward & Cave
Victorian Square
401 West Main Street, Ste. 1020
1941 Bishop Lane
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