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Poff v. IBP3/11/2005
laim to him or his duly authorized agent, or by delivering such written claim to him by registered or certified mail within two hundred (200) days after the date of the accident, or in cases where compensation payments have been suspended within two hundred (200) days after the date of the last payment of compensation; or within one (1) year after the death of the injured employee if death results from the injury within five (5) years after the date of such accident."
The ALJ determined that Poff "failed to provide timely notice of a workplace accident. Furthermore, claimant failed to demonstrate just cause for his failure to prove timely notice. This finding of the court is dispositive of the claim as a whole and for that reason, the remaining issues raised by the parties will not be decided." The Board affirmed the ALJ's decision that Poff had failed to give timely notice of his injury to IBP and had failed to submit a timely written claim on his hearing loss.
At the regular hearing, Poff testified that he had annual hearing exams while he worked at IBP and had requested a hearing examination the day before he terminated his employment. Poff stated he told the nurse he wanted a record of his hearing as it stood when he left IBP. The ALJ and the Board both concluded that Poff failed to provide timely notice of his work-related hearing loss pursuant to K.S.A. 44-520 because he never conveyed the required specific information that he was alleging a workplace injury.
Poff also failed to make a timely written claim pursuant to K.S.A. 44-520a, and the Board's decision in this regard is supported by substantial competent evidence. Poff had the hearing exam on the day before he quit working at IBP, and his last day of employment was June 29, 2000. Poff did not give a written claim requesting compensation for hearing loss until May 15, 2001. K.S.A. 44-520a required Poff to make a timely written claim within 200 days after the accident date. Whether we use the date of the hearing exam or the last date of employment, Poff's written claim for work-related hearing loss was untimely.
Poff attempts to extend the time limitation for providing a written claim for compensation to 1 year because of IBP's failure to file an accident report with the Director pursuant to K.S.A. 44-557. K.S.A. 44-557(a) requires every employer to report any accident "if the personal injuries which are sustained by such accidents, are sufficient wholly or partially to incapacitate the person injured from labor or service for more that the remainder of the day, shift or turn on which such injuries were sustained."
While an appellate court gives deference to the Board's interpretation of the law, if the Board's interpretation is erroneous, the appellate court may take corrective action. Neal v. Hy-Vee, Inc., 277 Kan. at 11. We find the Board properly interpreted K.S.A. 44-557(a) to require incapacitation before the time for filing is extended to 1 year pursuant to K.S.A. 44-557(c). Poff never missed work because of the alleged hearing loss, and IBP was not required to file an accident report. Consequently, the time limitation was not extended pursuant to K.S.A. 44-557(c).
IBP cross-appeals the Board's decision to award compensation to Poff for his varicose vein condition. IBP argues the Board's finding that Poff's varicose vein condition was work related is not supported by substantial competent evidence. IBP argues that Poff's varicose vein condition is a personal condition which results from the natural aging process and normal activities of day-to-day living.
We will again apply the previously stated standard of review for substantial competent evidence and uphold
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