Opinion
2012-SC-000783-WC
11-21-2013
WILLIAM DECKER APPELLANT v. CONTROL SYSTEMS, INC.; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
COUNSEL FOR APPELLANT, WILLIAM DECKER: Wayne C. Daub COUNSEL FOR APPELLEE, CONTROL SYSTEMS, INC.: Douglas Anthony U'Sellis Richard Edwin Neal
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2012-CA-000468-WC
WORKERS' COMPENSATION NO. 06-86043
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, William Decker, appeals from a decision of the Court of Appeals which held that his application for workers' compensation benefits was barred by the statute of limitations pursuant to KRS 342.185(1). That statute requires that an application for workers' compensation be filed within two years from the date a work-related injury occurred or within two years from the date the employer terminates income benefits, whichever occurs later. Decker argues that his claim should not be barred because he contends he did not receive his last temporary total disability ("TTD") benefit payment until after he filed his application for benefits, there was misconduct on part of the workers' compensation insurer, and because the statute of limitations should run from the date that actual notification is given to the Department of Workers' Claims that benefits are being terminated. For the reasons set forth below, we affirm the Court of Appeals.
Decker began working for Control Systems, Inc. in 1978. In 1990, he suffered a work-related injury to his right ankle and received workers' compensation. The owner of Control Systems, Larry Fitzhugh, helped Decker with that claim. Decker left Control Systems and worked on his own for a while but returned to the company in 2002.
On May 16, 2006, Decker sustained a second work-related injury while employed by Control Systems. Just like with the first work-related injury, Fitzhugh helped Decker through the workers' compensation claim process. Decker received TTD benefits from May 1, 2008 through May 25, 2008, paid by one check dated May 28, 2008. Subsequently, Control Systems notified the Department of Workers' Compensation that Decker's TTD benefits had ended. The Department mailed a letter dated June 6, 2008 to Decker informing him that the statute of limitations to file a claim expired on May 25, 2010. Decker testified that he did not remember receiving the letter, but could not state that he never received it.
Decker's final TTD check was sent to Fitzhugh, who then gave the check to Decker. Fitzhugh does not remember the exact date when he turned the check over to Decker, but believes it was around June 2, 2008. Decker also does not remember exactly when Fitzhugh gave him the check, but argues that the date he deposited the check, June 7, 2008, should be deemed the date of receipt for the purposes of the statute of limitations.
In March or April 2010, Decker underwent a medical procedure which was rejected by the workers' compensation insurer. On June 3, 2010, Fitzhugh called the third party administrator to inquire why the procedure was rejected. He was told by Christina Sharp, an adjuster, that the procedure was actually approved and that the statute of limitations for Decker to file a claim would expire on June 6, 2010. The date she provided was incorrect. But, based on Sharp's misstatement, Decker filed a Form 101 claim for benefits on June 4, 2010.
The Administrative Law Judge ("ALJ") bifurcated the statute of limitations issue from the rest of the claims and dismissed Decker's application as time barred. He found that the statute of limitations expired either on May 25, 2010 (the date Decker's TTD benefits ended) or June 2, 2010 (the date which the ALJ found Decker received his last check). Using either date, Decker's claim filed on June 4, 2010 was late. In so holding, the ALJ found that Control Systems complied with its duty to notify the Department of the termination of Decker's benefits and that the Department timely notified Decker of the expiration date for filing a claim. The ALJ also did not believe that Sharp's statement to Fitzhugh that the statute of limitations expired on June 6, 2010, tolled the date a claim could be filed because her misstatement was made after the actual statute of limitations ran. The Workers' Compensation Board and Court of Appeals affirmed. Decker filed the present appeal.
I. THE ALJ'S FINDING THAT DECKER RECEIVED HIS FINAL TTD PAYMENT ON JUNE 2, 2008 IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Decker's first argument is that the ALJ erred by finding that he received his final TTD benefit check on June 2, 2008. While he is uncertain of the exact date he was given the check, Decker argues that the date he cashed the check, June 7, 2008, should be treated as the date he received it. The date he received the final TTD benefit check is important because it is from that date the statute of limitations began to run. KRS 342.185(1). Finding that Decker received the check on June 7, 2008 would make his application for workers' compensation benefits timely.
The ALJ's finding that Decker received the check on June 2, 2008, is supported by the record. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (holding that an ALJ's findings are reviewed to determine whether they were reasonable under the evidence). Sharp testified that the latest date the check would have been mailed was Friday, May 30, 2008. The check was mailed from one Louisville address to another indicating that delivery would be swift. Fitzhugh stated during his deposition that while he does not check his mail every day, "If they mailed it on a Friday, I got it on Monday. I would probably give it to [Decker] the date I got it." Thus, there is sufficient evidence in the record to support the ALJ's finding that Decker received his final TTD benefit check on June 2, 2008.
II. THERE IS NO EVIDENCE THAT SHARP'S MISSTATEMENT ABOUT THE STATUTE OF LIMITATIONS EXPIRATION DATE HARMED DECKER
Decker next argues that the statute of limitations for his claim should be tolled because Sharp erroneously told Fitzhugh that the last date a claim could be filed was June 6, 2010. However, for the statute of limitations to be tolled, the employer or insurance carrier must make a false representation to the claimant which lulled him into not filing his claim within the proper time. Cowden Mfg. Co. v. Fultz, 472 S.W.2d 679, 681 (Ky. 1971). Here there is no proof that Sharp's statement caused Decker to file his claim in an untimely manner. In fact, Sharp made the statement to Fitzhugh one day after the ALJ found the statute of limitations had run. Sharp's misstatement did not toll the statute of limitations.
III. DECKER IS NOT ENTITLED TO AN EQUITABLE REMEDY
Finally, Decker argues that Control Systems should be equitably estopped from claiming a statute of limitations defense because it did not immediately notify the Department that Decker's TTD benefits ended. Decker points to the fact that the letter sent from the Department was dated June 6, 2008 and not May 25, 2008, the date his TTD benefits ended. However, there is nothing to indicate that Decker was deprived of proper notice or relied on the date of the Department's letter to file his claim. In fact, Decker does not even remember receiving the letter. The record reflects that Control Systems timely notified the Department of the conclusion of Decker's TTD payments and that the Department timely notified Decker of the statute of limitations for filing a claim. Decker is not entitled to an equitable remedy. See Patrick v. Christopher East Health Care, 142 S.W.3d 149 (Ky. 2004)(holding that an employer is not equitably estopped from raising a two year statute of limitations claim for benefits even though there was a two month delay by the employer in notifying the Department).
For the reasons set forth above, the decision of the Court of Appeals is affirmed.
Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ., sitting. All concur. Keller, J., not sitting. COUNSEL FOR APPELLANT,
WILLIAM DECKER:
Wayne C. Daub COUNSEL FOR APPELLEE,
CONTROL SYSTEMS, INC.:
Douglas Anthony U'Sellis
Richard Edwin Neal