Failure to strictly comply with notice of termination of TTD tolls SOL: KENTUCKY CONTAINER SERVICE, INC. V. KENNETH ASHBROOK (SC 8/21/2008)

WORKERS COMP:  Statute of limitations tolled by employer’s failure to
      strictly comply with notice of termination of TTD benefits
      DATE RENDERED: 8/21/2008

In this workers compensation appeal, the Supreme Court affirmed the COA and held that the two-year limitations period for filing a workers compensation claims was tolled by the employer’s failure to strictly comply with statutes governing notice of termination of temporary total disability benefits. 
In this case the injured employee filed  his claim for workers’ compensation benefits after his employer terminated temporary total disability income benefits. The ALJ had found the claim for the 1998 injury to be timely under Billy Baker Painting v.  Barry, 179 S .W.3d 860 (Ky. 2005) reasoning that Midwestern submitted a defective Form IA-2 that failed to cause the Office to send a WC-3  letter and thus  the failure to comply strictly tolled the statute of limitations, regardless of whether it resulted from bad faith or misconduct.
Billy Baker Painting v. Barry stands for the principle that an employer must bear the burden of its failure to comply strictly with KRS 342 .040(1) and 803 KAR 25:170, § 2(2). Providing required information in an incorrect format is no less a failure of compliance than failing to provide required information . An exception to the principle of strict compliance is Newberg v. Hudson , 838 S .W.2d 384 (Ky. 1992), in which the court found the circumstances not to warrant an equitable remedy because the worker engaged in conduct that caused the employer to fail to comply with KRS 342.040(1).  As the party raising a limitations defense, the employer had the burden of proof. The evidence indicates that it did not comply strictly with KRS 342.040(1) and 803 KAR 25:170, § 2(2).

Appellant’s Brief

Appellee’s Brief


COA Decision: 2006CA2299

Digested by Michael Stevens

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