               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          NOT TO BE PUBLISHED OPINION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· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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 · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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   UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·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   BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED
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   ACTION.
                              ~-·


                                             RENDERED: SEPTEMBER 28, 2017
                                                     NOT TO BE PUBLISHED

              . ~uprtttt~ <tlnurf ·~f ~~nfurku
                                2016-SC-000454-WC


 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.                                       APPELLEES
 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 ~ngett 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 awa~d." For the reasons stated herein, ·we rever~e the·

 Court of Appeals and reinstate the AL.J's Opinion and Order.

                                    RELEVANT FACTS

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

 th~t 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 shootiz: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

 filed 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 was 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 'Yhen Tungett went to Irving's office and wrote down his description

 of what had occurred .. The document does not appear ~n 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 incident occurred.

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

hearing that he was certain that Tungett never mentioned injuring his back

when cleaning out the truck's chute. He said Tungett was orily 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 ~ngett 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 ~now 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
                             .                   J
                                                     '   .
                                                             I   .


was aware of Tungett'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 hini 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 discovered that

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

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

management personnel at Irving. -

      The ALJ heard this proof as well as conflicting medical proof, the latter

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

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

related injury on May 31, 2014 comes down to the credibility of the witnesses."

The ALJ 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 seek treatment for his low back as a work injury, but
       alleged an injury date of May 2, 2014 - not May 31, 2014. Wh~n
       claimant was told by that medical provider that he needed to
       supply paperwork related to the work injury, instead 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 d~fferent 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 som~ 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 his 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

c:;laims [notice] was given to several people at the defendant's place of hu~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 my 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 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.

                                        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 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
                                        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 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

                                            \
                                        7
      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.

                                             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 ~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
                                                                                    (
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·




                                        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 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
