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Lawson v. Wal-Mart9/7/2001
to file within the statutory period renders the worker's claim "forever barred." Further, Professor Larson has noted that
voluntary payment leads the claimant to refrain from making claim and renders the delay reasonable. When the policy or purpose disappears, it may be doubted whether the waiver can survive. Thus, if the voluntary payment of compensation is made for the first time after the entire claim period has run, it cannot be accused of influencing the claimant as a reasonable person to withhold making claim. Therefore, just as actual knowledge acquired for the first time after the notice period has run is not a waiver of statutory notice, so voluntary payment or promise of compensation made only after the claim period had expired has been held ineffectual to waive the statutory bar.
We find the rationale of the Board, Professor Larson and our sister states persuasive. Once the time period within which a potential claimant may file a claim has expired, the claim is "forever barred." Because no benefits were paid either to Potter or Lawson within the two years after each respective claimant's accident, it cannot be contended that Potter and Lawson were "lulled" into believing that they did not need to file their claims within the two years following their accidents, as required by KRS 342.185(1).
"The function of further review of the [Board] in 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." The Board did not err in its analysis of KRS 342.185(1).
Because neither Lawson nor Potter filed a claim within two years following their initial injury , and because no voluntary TTD payments were made within the two years, the claims are barred by the two-year statutory time limit, and the voluntary payment of TTD after the running of the statute did nothing to revive the claims. Therefore, both Board decisions are affirmed.
ALL CONCUR.
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