Irving Materials, Inc. v. Raymond Tungett ( 2017 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
. .
· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PRO.MULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
· THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY_ COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY· ADDRESS THE ISSUE
BEFORE THE. COURT. OPINIONS CITED FOR CONS_IDERATION
BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL·BE TENDERED ALO.NG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
ACTION.
~-·
RENDERED: SEPTEMBER 28, 2017
NOT TO BE PUBLISHED
. ~uprtttt~ 329 S.W.3d 296 (Ky.
2010), rejected Tungett's argument that a substantial amount of time must
elapse before a notice will
.
be untimely and that the employer
. . must be
)
prejudiced by the delay. Noting that Tungett had the burden of proving all
elements of his claim, the Board found substantial evidence· supported the
AW's finding that notice was not given as soon as practicable and, moreover,
that there was not compelling evidence to the contrary in the record, the
standard necessary for reversing the AW's factual finding.
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.The Court of Appeals reversed in a 2-1 opinion, holding that although
"there was conflicting evidence as to when Tungett provided notice, the
employer knew of the work.:.related injury as early as June 5, 2014, when Tolin
learned Tungett attempted to have Irving pay for his medical treatment." By
this finding, the court concluded that when Irving heard from the immediate
care center that Tungett was claiming a work injury, notice had been given; the
employer's awareness of the claim was reflected in the fact :that Mike Tolin,
Irving's safety manager, responded by callipg Tungett in for a meeting.
(Although the appellate court did not note it, Tungett did not attend that'
I
meeting hut instead went into Irving's office on June 9.) The appellate opinion
ends with the court's conclusion· that Tungett was not required to give· further
notice "as a matter of law" and that the AW erred,
. notwithstanding. evidence that Irving did not learn the exact
circumstances surrounding the accident for another ·week.
The delay had no prejudicial effect for Irving, as Tungett
received prompt medical treatment for his non-emergency/
injury and the uncontested subject matter of Tungett's post-
injury conversation with Fernander - namely that concrete
was hardening in the truck chute - corroborates Tungett's
'version of events for any investigative purposes ....
The Court of Appeals reversed the Board and re:µianded to the AW "to fashion
a benefit award." The dissenting judge did not write a separate, opinion.
ANALYSIS
A workers' compensation claimant has the burden of proving every
element of his claim, Wolf Creek Collieries v. Crom, 673 S.W.2d 735 (Ky. App.
· 1984), including the element of notice to his employer. Special Fund v. Francis,
708 S.W.2d 641, 643 (Ky. 1986). The AW is the fact-finder and has sole
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authority to determine the quality, character and substance of the evidence.
Square D Co. v, Tipton, 862 S.W.2d 308, 309 (Ky. 1993). When evidence·is
. .
conflicting, "which evidence to believe is the exclusive province of the AW." Id.
(citing Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977)). On appellate
review, the issue is whether substantial evidence of probative value supports
the AW's findings. Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999).
If the party with the burden of proof fails to convince th~ AW, that finding
stands unless on appellate review that party can establish that the evidence
was so overwhelming that it compels a favorable finding. Special FuTJ.d, 708
S.W.2d at 643.
Here, Tungett did not, in the AW's and the Board's views, meet his
. .
burden.of proving timely notice of his work 'accident and injury to his employer.
In Smith v. Cardinal Const. Co., 13 S.W.3d 623, 626-27 (Ky. 2000), this Court
discussed the concept of notice for a work-related accident:
Unlike KRS 342.3~6(2)(a), wl;iich requires timely notice of a
"claim for occupational disease," KRS 342.185 provides that notice
) of a work-related "accident" must be given "as soori as practicable
after the· happening thereof." KRS 342.190 indicates that the
· notice requfrement include~, among other things, notice of the .
time, place, nature, and cause of the accident. It also includes a
description of the natµre and extent of any resulting injury. KRS
342 .200 provides that an inaccuracy in complying with the
requirements of KRS 342.190 will not render notice "invalid or
insufficient ... unless it is shown that the empioyer was in fact
misled to his injury thereby." KRS 342.200 also provides that a
delay in giving notice is excused if the employer "had knowledge of
the injury" or the del;:ty was due to mistake or other reasonable
cause~ Notice of a work-related accident and of a resulting injury .
may be given in the context of filing a claim; however, such notice
may or may not be timely depending upon the circumstances
\
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which are present. KRS 342.190; Peabody Coal Co. v~ Powell,. Ky.,
351S.W.2d172 (1961).
See also Louis Trauth Dairy, 329 S.W.3d at 298. Although "practicable" is not a
. .
defined term in KRS Chapter 342, it is commonly defined to mean "capable of
being done." ·Webster'~ II New College Dictionary, p. ·867 (1995). Thus, KRS
342.185 requfres the employee to give notice to the employer as soon as it is
capable of being done after an accident.
Here, the AW found that Tungett had failed to offer probative evidence of
having notified Irving of his alleged May 31, 2014 accident as s~on a.s
practicable. In so ruling, the AW found Kevin Fernander and Mike Tolin's
testimony more credible than that of Tungett. The AW believed Fernander's
testimony that Tungett did.not mention an accident in the May 31 phone call
arid that he ·did not mention an accident the following Tuesday when he called
in saying he could not work due to having "done something" to his back. The
AW apparently ~so rejected Tungetfs claim that he tied his back injury to the
May 31 accident when he met with Tolin on June 9 and wrote out a description ·
of what.had occurred that day and when he fell from his truck on June 5.1
Instead, the AW believed Tolin's consistent testimony (both by deposition and
at hearing) that Tungett did not identify a workplace accident, a "specific
mechanism of injury ·at work to explain the back problems." In the AW's view,
1There is no document in the record which would qualify as the statement that
Tungett claims he wrote out on June 9, 2014.
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"it was only when the health insurance coverage lapsed that claimant again
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began alleging his· back condition was related to a May 31, 20.14 injury. "2
Like the Board, we find substantial evi~ence ~upporting the AW'::i
findings. Moreover, it is not possible to conclude that the evidence of record
"compelled" a finding that Tungett gave notice as soon as practicable. The AW
could have chosen to believe that Tunge~t gave notice in the May_-31 phone call
I
or the following week by phone or when he came into work.· He could have
chosen to believe that Tungett laid out his.clajm to Irving when h~ met with
Tolin on June 9. But the AW. did not believe that testimony, finding instead
that the first true· notice of an alleged workplace accident given by Tungett to·
his. employer was the filing of the September 2014 claim.
.
The AW weighed the
evidence and· made a find.ing that is supported by substantial evidence.
The Court of Appeals in a conclusion quoted above, reversed and found
that "as a matter of law" the employer had notice on June 5 when it was
contacted by the immediate care center about Tungett having presented and
alleged a workplace injury. In that court's opinion, Tungett was not required to ·
give further notice. This was error, for two reasons.· First, it is not the province
of the Court of Appeals to s1;1.bstitute its factual findings regarding notice for
those of the AW. 'Second, even if the notice from the immediate care center
2 In context, it appears that the AW believed Tungett's testimony that he
claimed a work~related inj1;1.1y to the first immediate care center he visited, although he
used a May 2 date (which could have been a clericai error) instead of May 31 for the.
accident. However, the AW did not believe that Tungett ever supplied notice of a May
31 accident to his employer until he filed his injury claim on September 3, 2014.
g.
could be shoe-horned into KRS 342.200, which excuses a worker's delay in
giving notice if the employer "had knowledge of the injury,".it would still be
insufficient because Irving received information about an alleged May 2 injury,
not the May 31, 2014 injury that Tungett relied on when he filed his September
3, 2014 claim.
Finally, on appeal, Tungett contends that in any event his case should be
remanded so the AW can consider the impact of KRS _342.200. ·That statute
excuses a worker's delay in providing notice where the employer has knowledge
of the injury. As noted above, the AW found, as he was entitled to do, no.
evidence that Irving had any knowledge of the alleged May 31 accident prior to
the filing of Tungett's claim in early September. KRS 342.200 also excuses
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delay as a result of "mistake" or "other reasonable cause." Tungett neve'r
alleged any mistake or reasonable cause for delaying notice,, claiming instead, .
albeit unsuccessfully, that he gave notice the very same day the accident
occurred. The AW did not err in expressly finding KRS 342.200 "inapplicable".
to this case. There are no _grounds for remanding on 'that issue.
CONCLUSION
Substantial evidence of record supports the AW's finding that Tungett
did not give notice to his employer "as sodh as ·practicable" of h~s alleged ·May
31 work-related injury. Moreover, rio sound basis exists for concludirig that
the evidence compels a contrary conclusion. Therefore, we reverse the opinion·
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of the Court of Appeals and reinstate the Opinion and Order of the AW
dismissing the claim for failure to give timely notice pursuant to KRS 342.185.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Douglas Anthony U'Sellis
U'Sellis & Kitchen, PSC
COUNSEL FOR APPELLEE,
Raymond Tungett:
Nicholas Murphy
COUNSEL FOR AMICUS CURIAE,
Kentucky Chapter of American
Federation of Labor and Congress
of Industrial Organizations
(AFL-CIO):
Mary Michele Cecil
Caslin & Cecil