         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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                                                 RENDERED: MARCH 17, 2016


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                                                     NOT TO BE PUBLISHED

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                              2015-SC-000406-WC
                                                          AT 1
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.




                                        2
      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 ALJ 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 ALJ again awarded Sizemore PTD benefits for a work-

related injury occurring on April 2, 2012. Regarding the issue of notice, the

AI.0 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 86 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


                                        3
      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 85T] 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 85T] to indicate that it was
      misled or that it incurred any prejudice. I make the factual
      determination that it is very telling that [T 85T] 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 85T] 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 85T] 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 85T] waived any inaccuracy
      by [Sizemore] in complying with the notice requirement, in that [T
      85T] did not introduce any evidence showing that it was misled as
      to [Sizemore's] injury or that there was any prejudice to [T 85T].

The ALJ did not make any further findings regarding his decision to award MD

benefits.

      T 85T 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,

                                        4
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. u. 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.

                                          5
         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 85 T sufficient notice that he

suffered a work-related injury. Sizemore notes that the AL.J 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 85T 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 86 T. The ALJ'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 86T 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.


                                               6
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 8v 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 8v T ENERGY:

Katherine Michelle Banks




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