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Hon v. United Parcel Service




Michael Hon petitions for review of an opinion by the Workers' Compensation Board affirming an opinion and order by an administrative law judge (ALJ) dismissing Hon's low back injury claim on the ground that it was barred by the applicable statute of limitations. We affirm.

Hon was employed as a delivery driver by United Parcel Service (UPS) from 1984 to 2002. He sustained a back injury on December 21, 1998, and was off work for surgery from that time through June 1999. Temporary total disability (TTD) benefits were paid by UPS from February 24, 1999, through June 16, 1999. UPS notified Workers' Claims of the termination of those benefits, and Workers' Claims notified Hon of the applicable statute of limitations period in a letter dated June 16, 1999.

Hon continued working with UPS as of June 7, 1999. On December 28, 2000, he injured his shoulder lifting a package. Hon received TTD benefits from February 22, 2001, through June 20, 2001. In August 2002, UPS terminated Hon's employment because the prescription medications he was taking for pain disqualified him from driving a UPS truck. A settlement of his shoulder injury claim was approved on September 29, 2002.

On September 12, 2002, Hon filed an application for resolution of his injury claim, in which he lists the injury as his December 21, 1998 low back injury. UPS asserted the statute of limitations as a defense, and the ALJ agreed. The Board affirmed the ALJ's decision in an opinion entered on December 30, 2004. Hon's petition for review followed.

The applicable statute of limitations states as follows:

If payments of income benefits have been made, the filing of an application for adjustment of claim with the department within the period shall not be required, but shall become requisite within two (2) years following the suspension of payments or within two (2) years of the date of the accident, whichever is later.

KRS 342.185(1). Therefore, since Hon's low back injury occurred on December 21, 1998, he was required to assert his claim within two years of that date or within two years following the suspension of TTD benefits.

Two years from the date of the injury would be December 21, 2000. Two years from the date of the suspension of TTD benefits would be June 16, 2001. Therefore, since Hon did not assert his claim until September 12, 2002, his claim was barred by the statute of limitations unless he can convince us otherwise by further argument.

Hon's first argument is that the TTD benefits he received from February 22, 2001, through June 20, 2001, for the shoulder injury were actually TTD benefits paid for his back injury. This argument is refuted by the settlement agreement signed by Hon that reflected the benefits were paid for the shoulder injury. The argument is also refuted by the testimony of the insurance claim adjustor, Tina McDonald, who testified that the TTD benefits paid to Hon during February 2001 through June 2001 were for his shoulder injury. Furthermore, Hon testified that he was told that the TTD benefits in 2001 were being made for his shoulder injury.

Nevertheless, Hon contends that the TTD benefits paid in 2001 were actually for his low back injury and that he asserted his claim within two years of the suspension of those payments. In support of that argument, he introduced into evidence an affidavit from his treating physician, Dr. Gary Melton. Dr. Melton stated that Hon was taken off work in February 2001 due to his back injury and not his shoulder injury. Hon contends that the affidavit constitutes uncontradict

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