Larry Sizemore v. T & T Energy

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NOT TO BE PUBLISHED OPINION
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RENDERED: MARCH 17, 2016
NOT TO BE PUBLISHED
,Suprnur Court of :Aitnfurkv
2015-SC-000406-WC
LARRY SIZEMORE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-002080-WC
WORKERS' COMPENSATION NO. 13-00464
T 86T ENERGY;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Larry Sizemore, appeals a Court of Appeals opinion which
affirmed a Workers' Compensation Board ("Board") decision that ordered his
workers' compensation award to be reversed and remanded to the
Administrative Law Judge ("ALJ") to dismiss the claim. Sizemore argues that
the Board erred by finding that he did not provide timely notice to his
employer, Appellee, T 86T Energy, of his potential workers' compensation claim.
For the below stated reasons, we affirm the Court of Appeals.
Sizemore was employed by T 86T as a dump truck operator. Several days
before April 2, 2012, Sizemore alleges that he suffered a work-related injury to
his neck. He alleges that the injury occurred when his co-workers improperly
dumped a large rock into the bed of his truck which caused him to be violently
shaken and jarred. Sizemore later woke up with a pain or crick in his neck.
An office note from Dr. Dustin Chaney, dated April 11, 2012, stated that
Sizemore "was at work [on April 2, 2012, when] they dropped a large rock into
his rock truck and he thought he stretched his neck out then." Dr. Chaney
noted Sizemore had a diminished range of motion of the cervical spine and
recommended physical therapy.
Sizemore complained to his supervisors that the bulldozer operators were
not properly depositing the rock into the bed of his truck. However, the record
is unclear as to whether these conversations occurred before or after the
alleged incident. During a deposition, Sizemore provided the following
testimony regarding the conversations between himself and his supervisors:
Q: Did you report any injury to the company?
Sizemore: No.
Q: And who was your supervisor at the time?
Sizemore: Robbie Collins. Now I reported often times that the
loader people were not padding the bed of the truck
with dirt before the [sic] threw in the big rocks so.
Q: Do you know the last time you may have reported that?
Sizemore: Times that I can verify I would have to get my phone to
do that.
Q: Did you ever report any type of injuries to the company?
Sizemore: No, I reported often times that the loader man was
hurting me.
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Sizemore was laid off of work on April 11, 2012, for reasons unrelated to
the work-related injury. Sizemore states that he gave written notice of his
alleged injury to T & T on January 17, 2013. T 86T denies receiving the notice.
He filed for workers' compensation on March 28, 2013.
After a review of the evidence, the AU entered an opinion and order
awarding Sizemore permanent total disability ("PTD") benefits for a neck injury
occurring on April 2, 2012. T 86T filed a petition for reconsideration which was
denied and it appealed to the Board. The Board affirmed in part, vacated in
part, and remanded the claim for further findings with respect to the issues of
whether Sizemore gave timely notice and PTD benefits.
On remand, the AUJ again awarded Sizemore PTD benefits for a work-
related injury occurring on April 2, 2012. Regarding the issue of notice, the
ALJ stated the following:
KRS 342.185 and KRS 342.190 require that notice of a
work-related accident and a resulting injury be given to the
employer as soon as practicable, but KRS 342.200 waives any
inaccuracy in complying with the notice requirement unless it is
shown that the employer was in fact misled [as] to [Sizemore's]
injury thereby.
I make the factual determination that after [Sizemore's]
work-related accident and neck injuries on April 2, 2012, he told
his supervisors, Robbie Collins and Tony Hamilton, that the loader
employees were not padding the bed of his rock truck with dirt
before they threw in the big rocks. I make the further factual
determination that after his work-related injuries on April 2, 2012,
[Sizemore] reported often times to his supervisors that the loader
man was hurting him. I make the further factual determination
that after his work-related injuries on April 2, 2012, [Sizemore] told
[T 8s T's] safety man, John Gregory, that other employees were
dumping those rocks on him. I make the factual determination
that [Sizemore's] sworn testimony is strongly supported by the
medical evidence from his treating physician, Dr. Chaney, who
stated in his April 11, 2012 medical report that [Sizemore] came to
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him for neck pain and that when he was at work they dropped a
large rock into his rock truck and he thought he stretched his neck
out then, and that he felt like he had a crick in his neck, which
had been going on for a couple of weeks. [Sizemore] reported to
Dr. Chaney that the range of motion in his neck was diminished
and painful . . .
I make the factual determination that [Sizemore] thought
that he gave due and timely notice of his work injuries to his
supervisors and that if he failed to give actual notice to his
supervisors, this was excusable under the mistake or other
reasonable cause provision of KRS 342.200. I note that [T 86T] did
not introduce any live witnesses, either by deposition or at the
Final Hearing, regarding any failure of notice on the part of
[Sizemore]. I make the factual determination that any inaccuracy
by [Sizemore] in complying with the notice requirement was not
shown by any evidence on the part of [T 86 T] to indicate that it was
misled or that it incurred any prejudice. I make the factual
determination that it is very telling that [T 86T] did not take the
depositions of any of the three supervisors named by [Sizemore],
Robbie Collins, Tony Hamilton, or John Gregory, and further that
[T 86T] did not present any of those individuals as live witnesses at
the Final Hearing. In other words, [Sizemore's] testimony as to
notice is absolutely uncontradicted. In other words, I make the
factual determination that [Sizemore] gave due and timely notice of
his work injuries to [T 86T] as soon as practical after the
happening thereof, as per KRS 342.185 and KRS 342.190, and
that pursuant to KRS 342.200 that [T 86T] waived any inaccuracy
by [Sizemore] in complying with the notice requirement, in that [T
T] did not introduce any evidence showing that it was misled as
to [Sizemore's] injury or that there was any prejudice to [T 86T].
The ALJ did not make any further findings regarding his decision to award PTD
benefits.
T 86 T appealed to the Board which again reversed the ALJ . and remanded
the matter with instructions to dismiss Sizemore's claim due to a lack of timely
notice. The Board found that the ALJ's conclusion that Sizemore's
conversations with his supervisors occurred after the alleged work-related
incident was conjecture and noted that Sizemore testified that he never told
them that he was injured. Thus, the Board found that Sizemore's notice,
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provided at the earliest in January 2013, was not "as soon as practicable" and
therefore untimely. The Court of Appeals affirmed, and this appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992)
Further, the function of the Court of Appeals is to "correct the Board only
where the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole
discretion to judge the credibility of testimony and weight of evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
KRS 342.185 requires that notice of a work-related accident be given to
the employer, "as soon as practicable after the happening thereof." KRS
342.190 requires that the notice be given in writing, and must include the
time, place, nature, and cause of the accident. The notice must also state the
nature and extent of the injury. However, KRS 342.200 provides that:
The notice shall not be invalid or insufficient because of any
inaccuracy in complying with KRS 342.190 unless it is shown that
the employer was in fact misled to his injury thereby. Want of
notice or delay in giving notice shall not be a bar to proceedings
under this chapter if it is shown that the employer, his agent or
representative had knowledge of the injury or that the delay or
failure to give notice was occasioned by mistake or other
reasonable cause.
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Sizemore does not argue that he complied with KRS 342.190, but that
the conversations with his supervisors regarding the manner in which his co-
workers loaded rock into his dump truck gave T 86 T sufficient notice that he
suffered a work-related injury. Sizemore notes that the ALJ made the factual
determination that he thought Sizemore gave due and timely notice of the
work-related injury to his supervisors. Further, Sizemore points out that the
ALJ concluded that it was "very telling" that T 86T did not depose any of the
supervisors, making the implication that T 86T was hiding the contents of the
conversations. We disagree.
Sizemore admits that he never informed T 86T about the alleged work-
related injury. Further, there is no evidence Sizemore had the alleged
conversations with his supervisors after the work-related injury occurred. The
mere fact that the supervisors did not testify does not indicate their statements
would have been detrimental to T 86T. The AL T's conclusion that Sizemore
provided proper notice is not supported by substantial evidence.
Additionally, KRS 342.200 does not save Sizemore's claim because there
is no evidence that T 86 T was aware of the alleged injury until Sizemore
provided written notice eight months 1 after the date of the incident and
Sizemore does not present any indication that the failure to provide proper
notice was due to a reasonable cause or mistake. Sizemore indicated to Dr.
Chaney in April 2012 that he was injured by the improper dumping of rock into
1 As noted above T 86 T argues it did not receive this written notice.
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his truck and Dr. Chaney diagnosed Sizemore with diminished range of his
cervical spine at that time. Sizemore gives no reason as to why he did not then
provide notice to T & T of a potential work-related injury.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
LARRY SIZEMORE:
McKinnley Morgan
COUNSEL FOR APPELLEE,
T 85 T ENERGY:
Katherine Michelle Banks
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