JERRY R. PACE V. H & N TRUCKING, ET AL
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IMP0R 'ANT NOTICE
NOT TO BE PUBLISHEDOPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PR OMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL ATOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY CO URT OF THIS STA TE.
RENDERED : DECEMBER 22, 2005
NOT TO BE PUBLISHED
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2005-SC-0163-WC
JERRY R. PACE
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APPELLANT
APPEAL FROM COURT OF APPEALS
2004-CA-1507-WC
WORKERS' COMPENSATION BOARD NO. 98-59480
H&N TRUCKING, SPECIAL FUND ;
HON . LAWRENCE F . SMITH, ADMINSTRATIVE
LAW JUDGE ; WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) dismissed the claimant's application for
benefits on the ground that it was barred by KRS 342.185(1) and that the circumstances
did not warrant tolling the period of limitations. Although the claimant continued to
assert that he missed two weeks of work following the injury and that KRS 342 .040(1)
entitled him to a "right to prosecute" letter, the Workers' Compensation Board (Board)
and the Court of Appeals affirmed . We affirm .
On November 23, 1996, the claimant was involved in an accident with another
motor vehicle while hauling coal for the defendant-employer . He was taken to the local
hospital and testified that although he was not hospitalized, he missed two weeks of
work immediately thereafter. He missed work periodically after the accident due to his
injuries or medical appointments regarding his injuries. He stated that his only other
absence from work was for a trip to California in 1997. The claimant testified that his
employer might have paid for two medical bills of about $50 .00 each at the Cloverfork
Clinic and paid for a test at the University of Kentucky but that it paid no cash benefits .
He stated that he mentioned workers' compensation benefits to his employer
occasionally and was told that the employer was taking care of it. The claimant testified
that he quit working in March, 1998, but later testified that after taking the rest of 1998
off, he returned and worked through September, 1999 . He stated that he began to
receive social security disability benefits in 1999 . He filed a workers' compensation
claim on April 21, 1999, alleging injuries to his back and head, and later amended the
claim to allege a psychological overlay as well .
The employer deposed Herman Caldwell, its corporate secretary and the
claimant's supervisor. Caldwell testified that the claimant began working for the
company early in 1996 and worked off and on until September, 1999 . He explained that
the claimant sometimes took off for vacation and that at times there was not much coal
to be hauled. He stated that he arrived at the accident site on November 23, 1996,
before the claimant was taken to the hospital . He informed his insurance agent of the
accident two days after it occurred but did not file a First Report of Injury (SF-1) until
October 30, 1998 . He explained that he had told his agent he would pay the claim
rather than turn it in to the insurer, thinking that the accident would not be costly
because "it wasn't that bad." After paying a number of medical bills, he decided to let
the insurer pay. He stated that the claimant missed two or three days of work after the
accident but did not mention any subsequent physical problems that were due to it. To
the best of his memory, the claimant had been involved in one prior accident and two
subsequent accidents . Caldwell stated that the claimant did not miss any more work
after the November, 1996, accident than he had missed previously, and he filed copies
of the claimant's work sheets to support the testimony .
Among the contested issues were the extent and duration of disability, statute of
limitations, work-relatedness of an alleged psychiatric disability, unpaid temporary total
disability (TTD) and medical benefits, and subrogation credit for proceeds of the
claimant's civil action against the third-party tortfeasor. After conducting an exhaustive
review of the lay and medical evidence, the AU noted that the claimant had settled his
civil action and that his testimony in the present action was "a model of inconsistency."
Furthermore, the claimant was injured in a subsequent motor vehicle accident on
September 26, 1997, and most of the medical evidence arose after the subsequent
accident . The ALJ noted that the record contained no evidence from either of the
claimant's treating physicians and that the only physicians who attributed the cause of
his present difficulties to the 1996 accident were not informed of the accident in 1997 .
Of those who were informed of the 1997 accident, Dr. Cooley was not convinced that
-the claimant sustained a traumatic brain injury and Dr. Muffly attributed any impairment
of the spine to the 1997 accident . Noting the claimant's longstanding history of back
and joint problems before November 23, 1996, the AU concluded that the accident
caused only a temporary arousal of pre-existing active back and joint problems and
resulted in a period of TTD of less than 14 days.
In its initial review of the matter, the Board noted the conflicting evidence
regarding the number of days that the claimant missed work following the November,
1996, accident and remanded the claim for an essential finding of fact in that regard .
See Pierson v. Lexington Public Library , 987 S.W .2d 316 (Ky. 1999) . A different AU
reviewed the record on remand and, much like the first, noted that the claimant's
testimony was "highly inconsistent and in many instances lacks credibility ." Finding Mr .
Caldwell's testimony to be "straightforward and persuasive," the ALJ concluded that the
duration of TTD was no more than three days and dismissed the claim again .
The Board determined subsequently that the evidence did not compel a finding
that the claimant missed more than seven days of work due to disability from the
November 23, 1996, accident . Therefore, KRS 342 .040(1) did not entitle him to receive
TTD benefits . Nor did it require the employer to notify the Board of its failure to pay
TTD or entitle the claimant to receive a "notice to prosecute" letter . See J & V Coal Co .
v. Hall, 62 S .W .3d 392 (Ky. 2001); H. E . Neumann Co. v. Lee, 975 S .W.2d 917 (Ky.
1998) . The Board concluded that the AU properly dismissed the claim on the ground
that it was barred by limitations .
Although the Court of Appeals affirmed, the claimant continues to maintain that
the evidence compelled a favorable finding regarding the duration of TTD . Focusing on
Mr. Caldwell's failure to file a timely Form SF-1, the claimant asserts that he clearly
knew that compensation benefits were due and that "the most substantial and
compelling evidence of record" required the ALJ to determine that he missed two weeks
of work after the injury, that he should have been paid TTD, and that the employer's
failure to do so or to notify the commissioner tolled the statute of limitations .
The claimant bore the burden of proof and risk of non-persuasion regarding
every element of his claim. Whittaker v. Rowland, 998 S.W .2d 479, 481 (Ky. 1999) .
KRS 342 .285 designates the AU as the finder of fact with the sole authority to weigh
conflicting evidence and assess the credibility of witnesses. Id . Compelling evidence
has been characterized as being evidence so overwhelming that no reasonable person
could fail to be persuaded by it. REO Mechanical v. Barnes , 691 S.W.2d 224 (Ky. App.
1985) . Where an ALJ finds that the party with the burden of proof has failed to meet
that burden, the evidence on appeal must be so overwhelming that it compels a finding
in that party's favor. Special Fund v. Francis , 708 S .W.2d 641, 643 (Ky. 1986) . A
finding that is supported by substantial evidence is not unreasonable and may not be
disturbed on appeal. Id.
Like the ALJ who considered the claim initially, the ALJ who determined the
duration of TTD stated that the claimant's testimony was inconsistent and found Mr.
Caldwell to be the more credible witness. Contrary to the claimant's assertion, the ALJ
was not required to view Caldwell's explanation regarding his delay in filing a Form SF-1
as compelling a conclusion that he knew the claimant was entitled to TTD or that he
was attempting to manufacture a limitations defense. The employer paid no voluntary
income benefits, and the claimant has pointed to nothing that would have compelled a
reasonable person to conclude that the November 23, 1996, accident caused more than
seven days of TTD. Under the circumstances, he has failed to show that the ALJ erred
in dismissing his claim or that the Board and the Court of Appeals erred by affirming the
decision .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Edmond Collett
John Hunt Morgan
Monica Rice Smith
Edmond Collett, P .S .C.
P .O . Box 1810
Hyden, KY 41749
COUNSEL FOR APPELLEE:
W. Barry Lewis
Lewis and Lewis Law Offices
151 East Main Street, Ste. 100
P.O. Box 800
Hazard, KY 41702-0800
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