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Miller v. Commonwealth Revenue Cabinet2/20/2003
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The claimant appealed an Administrative Law Judge's (ALJ's) findings that his injury was not work-related and that he failed to give timely notice. Concluding that the ALJ failed to analyze the evidence adequately under the "traveling employee" exception to the going and coming rule, the Workers' Compensation Board (Board) reversed the first finding, vacated the second, and remanded the claim for additional findings and a consistent decision. Appealing from a Court of Appeals opinion that affirmed, he continues to maintain that although the Board properly reversed the ALJ's decision, it erred by failing to determine that a finding of timely notice was compelled under the circumstances and by making unauthorized findings. We affirm.
The claimant became employed by the Revenue Cabinet's Department of Valuation in 1977. He was a certified assessor. In his work as a branch manager, he supervised a forty-county area and five field representatives. The job involved daily travel within the area and paperwork. In the past, he had been a field representative and had traveled to various counties, for weeks at a time, in order to update property appraisals. He lived in Middlesboro and worked from an office in Pineville, but he also shared a Frankfort office with other branch managers.
The claimant testified that on December 1-3, 1998, he stayed in Frankfort and assisted with a seminar the Cabinet conducted there for newly-elected property valuation administrators (PVAs). He testified that at 4:30 p.m. on December 2, the seminar concluded for the day. At about 6:20 p.m., his car was rear-ended while he was en route to his Frankfort office to retrieve materials for the next day's session before going to supper. He had expected that some of his associates would still be at the office and hoped that one or more would join him.
After being transported by ambulance to the hospital, the claimant was treated and released. He testified that although he did not complete his trip to the Frankfort office on December 2, he did go there after the seminar ended on December 3. He indicated that the accident was widely discussed that day, both at the seminar and at the Frankfort office. He was certain that he had discussed the nature of his injuries although he might not have discussed his location or destination at the time of the accident. Thinking that the accident was not covered by workers' compensation, he forwarded his medical bills to his automobile insurer for payment. Likewise, he did not specifically advise Ms. Eucker or Mr. Crawford, who were his supervisors, but he was certain that they were among those discussing the accident the next day. In the fall of 2000, counsel informed him that he might have a workers' compensation claim as well as the personal injury action that he sought to prosecute. Nonetheless, he did not notify his employer at that time because he thought that it was too late to do so. On November 29, 2000, he filed a claim, alleging injuries to his neck and left arm, and he testified subsequently that he suffered from pain and stiffness in his neck and from numbness and weakness in his left arm.
The claimant testified that he missed no work due to his injuries and used comp or sick time for related medical appointments. He testified that he used his personal vehicle in his work and that the Cabinet reimbursed
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