                IMPORTANT NOTICE
           NOT TO 8,E 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 · THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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     THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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     UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · .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 ~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     BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED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!TENOERED ALO.NG WITH THE
                           .\


     DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
     ACTION.
                                            RENDERED: SEPTEMBER 28, 2017
                      .                     .     ,_p,~T ~ff /A\LirrED
               ~uprttttt ~fourf ·nf ~~ ~ l1= .
                                2016-SC-000454-WC        ·

                                                    []~1l~10/1,Jr7ll,~ rU.ot~.oc
IRVING MATERIALS, INC.                                                APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
v.                     ·CASE NO. 2015-CA-001478-WC
                     WORKERS' COMPENSATION
                            .   .             BOARD
                           · NO. 14-WC-01672


RAYMOND TUNGETT; HON. STEVEN G.                                       APPEL.LEES
BOLTON, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD


                  MEMORANDUM OPINION OF THE COURT

                                   REVERSING

      An administrative law judge (AW) dismissed Appellee Raymond. Tungett's

claim for workers' compensation benefits arising out of an alleged work-related

injury on the grounds that Tungett had not notified his employer, Appellant

Irving Materials, Inc., "as soon as practicable" after the accident as required by

Kentucky Revised Statute (KRS) 342.185. The Board affirmed the dismissal

but the Court of Appeals, in a split decision, reversed and "remanded to the

AW to fashion a benefit award." For the reasons stated herein, we reverse the·

Court of Appeals and reinstate the AW's Opinion and Order.

                                RELEVANT FACTS

      The facts surrounding Tungett's claim are disputed. Tungett testified

that he began working for Irving in 2011 and was a concrete ·truck driver who
          .   .       .
 delivered to construction sites. He testified that he injured his back on

 Saturday, May 31, 2014, when he was using a 2x4 to clean "shotcrete" out of

,·the chute of his truck after it had hardened. He claimed his back "popped" and

. he felt pain sJ::iootiz:ig down his leg. He testified that he called his supervisor,

 :Kevin Fernander, to get directions about whether he should return to the site

 since there was still concrete in his truck and that he also told Fernander that

 he had hurt his back trying to clean out the chute. Tungett said he had

 problems over that weekend but returned to work on Monday and then missed

 work on Tuesday.and Wednesday. He worked on Thursday and fell off his

 -truck, injuring his back although that incident was not mentioned in his claim

 fl.led in September 2014. He went to an immediate care center on June 3,:

 2014, but they would not treat him because he claimed a work injury and did

 not have the necessary paperwork so he went to a different immediate·care

 center the next day and said his_ back problem wa:s not work-related~ He

 contiriued treatment until his private health insurance lapsed. He testified

 that at one point, at the request of his employer, he went into Irving's office and

 wrote down a description of how he had injured his back on May 31 and also

 on June 5, when he fell off his truck. From other witnesses, it appears that it

 was June 9 when Tungett went to Irving's office and wrote down his description
                  )




 of what had occurred. The document does not appear in the record.

       Fernander was very complimentary of Tungett, who he supervised for

 about three years, and testified that he considered him a good employee and .

 honest guy .. Fernander dealt with incident reports for the company and said

                                            2
 that all employees, including Tungett, were trained on the necessity of

completing an incident report as soon as possible after an ineident occurred.

He acknowledged the May 31 phone call but testified by deposition and at the

hearing that he was certain that Tu~gett never mentioned _injuring his back

when cleaning out the truck's chute. He said Tungett was only calling to get
                                             .                       .   .
direction about whether he should go back to the work site or go home for the

day. Fernander said they joked about it being "Miller time" for the workers at

the site and he told Tungett.not to worry about going back with whatever

concrete was left in his truck. He saw.
                                    .   Tungett
                                          .     at work on Monday and then on

Tuesday he got a call from him .stating that his back was hurt and he could not

move. Fernander was certain that Tungett never mentioned a work accident

and, in fact, said in the phone call that he did riot know what he had done to

his back. After Tungett fell on Thursday, Fernander heard that he was going to

get his back checked out and that was the last time Fernander ever heard from

him.

       Mike Tolin, Irving's safety manager, testified about the driver safety

training and orientation that all drivers for the company must complete. He
                             •                   •       t   •   I
                                                     j




was aware ofTungett's fall from his truck on June 5. That same day he was

contacted by an immediate care center about Tungett having sought treatment

earlier in the week for fill: alleged work injury on May 2, 2014. (This date may

have been a clerical error but it is what the medical records reflected.). Tolin

·asked Tungett that day to come into the office to tell hirri what was going on

but Tungett did not come until June 9. Tolin said that at that time Tungett

                                         3
related his back injury to ·his work but he did not relate it to a particular event

or accident .. Tolin also testified that Irving had bought another trucking

company, Riverton Trucking, Inc., and that in July 2014 they       di~co~_ered   that

Tungett had applied to work there. He indicated he was ready and able to go to

worlc, apparently not realizing that his application was being submitted to

management personnel at Irving.·

      The AW heard this proof as ·well as conflicting medical proof, the latter

being unnecessary to recount given the issue on which the AW dismissed. The

AW, in a lengthy opinion, concluded that "whether claimant sustained a work-

related injury on May 31, 2014 comes down to the     credib~lity   of the witnesses."

The AW reviewed the conflicting testimony and concluded that he found

Fernander more credible regarding the issue of notice of an alleged injury

before stating:

              initially, without any notice to his employer, claimant
       attempted to se~k treatment for his low back as a work injury, but
       alleged an injury date of May 2, 2014 - not May 31, 2014. W:h~n
       claimant was told by that medical provider that he needed to
       supply paperwork related to the work injury,.jnstead of simply
       getting the paperwork, which could have been easily done if_he had
       a legitimate work injury, he instead went to a different provider
       and sought treatment through his private.health insurance. It was
     . only when the health insurance coverage lapsed that claimant
       again began alleging his back condition was related to a May 31-,
       2014 work injury.

             I am unable to determine any reason as to why Kevin
      Fernander or Mike Tolin would not be forthright in their testimony.
      It does impact on Plaintiffs credibility that he has alleged himself ·
      to be incapable of Working throughout this claim, due to his low
      back condition, only to unknowingly commit the blunder of
      actually applying for a driver position with another concrete
      company that had recently been purchased by this defendant. He·

                                        4
      then admitted that he had actually applied for employment with.
      numerous· different employers.

              The bottom line is that claimant failed to meet his burden of
       proof that he sustained a work-related injury. · His low back pain
     . clearly had an insidious onset after waking up one morning - as he
       told Kevin Fernander and as supported by some of the medical
       records. Claimant's own accounts as to the onset of his low back
       pain have been repeatedly inconsistent.

The AW further concluded that Turigett never really reported a work accident

to Irving, instead stating in the June _9 meeting that he had not suffered a

.specific injury at work. In the AW's view, Tungett abandoned hjs job and then

unde.rmined his injury claim when he applied for the :Riverton job. Uitimately,

the AW concluded that Tungett never notified his employer of an injury: "He

claims [notice] was given to several people at the defendant's place of bu~iness.

However, he introduced no probative evidence to support that     pr~position."   In

his Order on Petition for Reconsideration, the AW wrote:· "Finally, as was

clearly stated in the Opinion and Order, the failure to give the required notice

was the sole grourid upon which I based rny decision."

      The Board, citing Granger v. Louis Trauth Dairy, 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 TungeUhad 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.

                                        5
      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 h_eard 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 calling Tungett in for a meeting.

(Although the appellate court did not note it, Tungett did not attend that'
                I

meeting b1.;1.t 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 pl-ejudicial ·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 remanded 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. Crum, 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
                                        6
· 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 1'23 (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.         Spe~ial   Fun.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 i6(2)(a), whicJ;i 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 indiGates that the
      · notice requ!rement 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
        342.20.0 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 employer 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 delay 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

                                             \
                                         7
      which are present. KRS 342.190; Peabody Coal Co. v, Powell, Ky.,
      35_1 S.W.2d 172 (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 requires the employee to give notice to the employer as soon as it is

capable of being doi:ie. 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    ~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

i~ sa~ing   he could not work. due to having "done something" to his back. The
                                                      __J



AW apparently also rejected Tungetrs claim that he tied his back injury to the

May 31 accident when he met with Tolin ori 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,




    · 1 There is no document in the record which would qualify as the statement that
Tungett claims he wrote out on June 9, 2014.

                                          8
"it was only when the health insurance coverage lapsed that claimant again

began alleging his.back condition was related. to a May 31, 20'14 injury."2

       Like the Board, we find substantial evi~ence supporting the AW'~

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 '!Jelieve that Tungett 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 AL) 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 supporte4 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 Tupgett 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 S\lbstitute 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 injury 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.

                                           9
could be shoe-horned into KRS 342.200, which ~xcus~s 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 c;lelay 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 ofTungett's claim in early September. KRS 342.200 also excuses
                                                                                     (
delay as a result of "mistake" or "other reasonable cause." Tungett nevct"

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 soon as practicable" of his alleged May

31 work-related injury.   ~oreover,   ri.o sound basis exists for concludirig that

the evidence compels a contrary conclusion. Therefore, w_e reverse the opinion




                                         10
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   ~RS   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
