        IMPORTANT NOTICE
   NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED 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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                              RENDERED: DECEMBER 17, 2015
                                                     NOT TO BE PUBLISHED

                ,Suprrntr Court of                 fifi
                               2015-SC-000136-WC

                                                          DATE 3 -11- I (4,
RHONDA FOX                                                       APPELLANT



                     ON APPEAL FROM COURT OF APPEALS
V.                      CASE NO. 2014-CA-001200-WC
                    WORKERS' COMPENSATION NO. 11-76092



SAM'S CLUB;
HONORABLE DOUGLAS GOTT,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                           APPELLEES



                    MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Rhonda Fox, appeals a Court of Appeals decision which

affirmed the dismissal of her workers' compensation claim as time barred by

the statute of limitations. Fox argues that the statute of limitations should be

tolled because her employer, Appellee, Sam's Club, did not pay her permanent

partial disability ("PPD") benefits and did not comply with the notification

requirements of KRS 342.040(1). For the below stated reasons, we affirm the

Court of Appeals.

      Fox alleged that she suffered from two work-related injuries while in the

scope of her employment with Sam's Club. The first alleged injury occurred on

January 21, 2011, when she was hit by a pickup truck in the store parking lot.
Fox alleges that this accident caused a low back injury. She filed an incident

report with Sam's Club, but did not file an accident report' because it would

have affected the bonus store employees received. The second alleged work-

related injury occurred on August 30, 2011, while Fox was lifting grills and

other merchandise. Fox states that as she was lifting merchandise she

suffered additional injuries to her low back and her neck. Sam's Club filed a

first report of injury with the Department of Workers' Claims ("Department") on

September 7, 2011. Fox sought and received medical treatment for this injury

pursuant to KRS 342.020. However, Sam's Club did not pay Fox PPD or

temporary total disability ("TTD") benefits.

         Dr. Timir Banerjee provided an independent medical evaluation of Fox

and found she sustained a 7% whole person impairment related to her back

injury that occurred on August 30, 2011. Dr. Banerjee's report is dated March

22, 2013. Sam's Club offered to pay Fox PPD benefits based on Dr. Banerjee's

opinion. Fox did not respond to the offer.

         Fox signed and verified a Form 101, Application for Resolution of Injury

Claim, on August 27, 2013. However, the Form 101 was not filed with the

Department until September 3, 2013. Because the application was submitted

more than two years after the date of Fox's second work-related injury, Sam's

Club filed a special answer in which it asserted that Fox's claims were barred

by the two-year statute of limitations. KRS 342.185. Sam's Club then filed a

motion to dismiss Fox's claims as time-barred. The parties agreed to bifurcate

1   At Sam's Club an accident report is only filled out when a physical injury occurs.


                                              2
the proceeding so that the statute of limitations argument would be decided

before the underlying merits.

      Fox argued before the Administrative Law Judge ("AW") that Sam's Club

should be estopped from asserting a statute of limitations defense because it

did not comply with the notice requirement of KRS 342.040(1).     City of

Frankfort v. Rogers, 765 S.W.2d 579 (Ky. App. 1988). KRS 342.040(1) states:

       [e]xcept 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. All
      income benefits shall be payable on the regular payday of the
      employer, commencing with the first regular payday after seven (7)
      days after the injury or disability resulting from an occupational
      disease, with interest at the rate of twelve percent (12%) per
      annum on each installment from the time it is due until paid,
      except that if the administrative law judge determines that a
      denial, delay, or termination in the payment of income benefits was
      without reasonable foundation, the rate of interest shall be
      eighteen percent (18%) per annum. In no event shall income
      benefits be instituted later than the fifteenth day after the
      employer has knowledge of the disability or death. Income benefits
      shall be due and payable not less often than semimonthly. 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.

Fox argued that KRS 342.040(1) mandated Sam's Club to pay her PPD benefits

once it received Dr. Banerjee's report. Since Sam's Club did not pay, Fox

contended it had to provide notice to the Department. Because notice was not

provided, Fox concluded the statute of limitations should be tolled.   Rogers,

765 S.W.2d at 579. Sam's Club rebutted Fox's argument by arguing it had no

obligation to notify the Department because income benefits were not owed to
her. The ALJ agreed with Sam's Club and dismissed Fox's claims as time

barred. Fox appealed to the Workers' Compensation Board ("Board") which

affirmed. The Court of Appeals also affirmed. 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).

      Fox argues that the AU, Board, and Court of Appeals erred by finding

that her claim is time barred. Fox contends that Sam's Club violated KRS

342.040(1) by not paying her PPD benefits for the period of time she was

disabled and by not providing notice to the Department of its failure to pay.

She implies that Sam's Club should have commenced paying PPD benefits once

it received the medical report from Dr. Banerjee which indicated she had a 7%

whole person impairment. As stated above, a violation of KRS 342.040(1) tolls

the statute of limitations. Rogers, 765 S.W.2d 579.


                                         4
       Unlike Fox's interpretation, KRS 342.040(1) does not compel an employer

to pay voluntary PPD benefits after a certain period of disability has passed.

Instead the statute describes the time period for when PPD benefits are to be

paid once it has been determined that the claimant is eligible to receive such

benefits and provides for penalties if the benefits are not paid.

      Accordingly, Sam's Club was not under any obligation to pay Fox PPD

benefits based on Dr. Banerjee's report. Our Workers' Compensation Act does

not impose a duty to pay permanent income benefits absent ALJ approval of a

Form 110 settlement agreement pursuant to KRS 342.265(1), or until after the

filing of a Form 101 when liability is dictated by the award in an ALT Opinion.

There is no provision for an "advance" on PPD benefits, or something akin to

payment of "temporary permanent partial disability benefits" pending more

formal proceedings. Sam's Club offered to pay Fox PPD benefits after reviewing

the doctor's report, but Fox did not respond to the offer. Because there was no

settlement or order which compelled Sam's Club to pay PPD benefits to Fox,

there was no obligation to notify the Department under KRS 342.040(1).      See

J 85 V Coal Co. v. Hall, 62 S.W.3d 392 (Ky. 2001). Sam's Club is not estopped

from asserting the statute of limitations defense.

      For the above stated reasons, we affirm the Court of Appeals.

      Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. All concur. Wright, J., not sitting.




                                         5
COUNSEL FOR APPELLANT,
RHONDA FOX:

James Delano Howes


COUNSEL FOR APPELLEE,
SAM'S CLUB:

Mark Wayne Howard
H. Douglas Jones




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