RENDERED: September 18, 1998; 2:00 p.m. NOT TO BE PUBLISHED. No CA WC

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1 RENDERED: September 18, 1998; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth Of K entucky Court Of A ppeals No CA WC HENRY CRAFT, JR. APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO AK STEEL, INC.; HONORABLE J. LANDON OVERFIELD, Administrative Law Judge; and HONORABLE WALTER TURNER, Commissioner of the Workers Compensation Board APPELLEES OPINION REVERSING AND REMANDING * * * * * * * BEFORE: ABRAMSON, DYCHE, and KNOX, Judges. ABRAMSON, JUDGE: This appeal stems from the dismissal of a claim for workers' compensation benefits on the basis that the claimant, Henry Craft, Jr. ("Craft") failed to provide his employer, AK Steel, Inc. ("AK Steel"), timely notice that he had contracted the occupational disease of asbestosis. In affirming the dismissal by the Administrative Law Judge ("ALJ"), the Workers' Compensation Board ("Board") concluded that because notice issues involve mixed questions of law and fact, in order

2 to prevail on appeal, Craft had to show that the evidence compelled a decision in his favor and that he had failed to meet that burden. We are convinced, however, that because Craft's version of the circumstances surrounding the giving of notice is uncontradicted, the sufficiency of that notice is a question of law. Having reviewed the evidence of record in light of the statutes and Kentucky caselaw, we are convinced that Craft's communication with his supervisors was sufficient to prevent dismissal on the basis of lack of notice and accordingly we reverse the decision of the Board. Craft's career with AK Steel commenced in 1967 and continued until he was laid-off in February, When he reached age 62 in December, 1995, he retired and was drawing regular retirement benefits as of the date of the hearing. Craft testified that he was involved in asbestos products liability litigation in West Virginia, represented by an attorney named Humphreys. The only evidence in the record concerning the issue of notice is Craft's discovery deposition and the testimony he gave at the hearing before the ALJ. Because Craft's testimony as to notice is the crux of this appeal, a close examination of that testimony is essential to an understanding of our decision and therefore we quote it at length. Concerning his involvement in the West Virginia litigation, Craft offered the following explanation in his discovery deposition: -2-

3 Q. Now, as we sit here today, Henry, are you currently involved in any asbestos related litigation against manufacturers of asbestos products? A. Like Humphreys? MR. EDWARDS: Yes. A. Yes. Q. Is Humphreys your lawyer? A. Yeah. Q. Do you know when you first established a relationship with Humphreys or his office to become involved in those asbestos cases? A. Probably in November of '90. Let's see, '91, maybe, or--i would say no later than '91 or '92. Q. Okay, that is consistent with what we know to date. Was that while you were working out of electric power and the hot strip mill? A. Right. Q. Did you go to a meeting at the Union Hall about asbestos? Is that how you first learned about it? A. I got it through word of mouth, actually, but I caught--the people in electric power, I talked to them about it and I thought, well, I had better check, so I went to the Union Hall and talked to them down at the Union Hall. And I called--either I called Humphreys or they got ahold of Humphreys for me, and I got a letter from them to go down to King's Daughters' Hospital and take an x-ray. Q. Did you do that? A. Certainly. Later in the same deposition, Craft gave the following testimony concerning notice of the contraction of the disease to his foreman: -3-

4 Q. Whatever it was that was told you back then, you were still working on the job? A. Right. Q. And did you tell your turn foreman what you got in the letter? A. Yeah, because, you know, when I got that thing, I was down there and everybody was ta[l]king about it and I told Fred Fields was the general foreman of our department. I said I'm getting ready to join the club or made a joke about it. And they said why, and I said I have got asbestosis. And I went to the Union Hall and told them, you know. I think I filled out a paper down at the Union Hall. Q. Putting ARMCO (AK Steel's predecessor) on notice? A. I think so, yes, sir. Craft's testimony before the ALJ included the following statements as to notice: Q. When you gave this deposition you testified that you gave notice to Armco when you first had your screening, x-ray, but you didn't know what that date was. Since that time you have been able to secure a copy of that report and it is dated 3/17/94? A. Yes. Q. I am showing that to opposing counsel. And that was from Mr. Humphreys['] office? A. Yes. Q. You got it sometime after that but it wasn't long after that? A. No, it wasn't very long at all. Q. Now, you testified, as I remember, in discovery, that because you were still working, you told various supervisors who were there on the job that you saw daily. I think -4-

5 you may have mentioned some names. Do you remember the names? A. Yeah. Q. Can you tell me who they were? A. Pete Judd, he was a crew chief in the rigger shop. THE COURT: He has already testified to this once. MR. PERRY: Not in this detail. We didn't know the dates until just now. A. John Townsend, a crew chief in my department, which was electric power. Rodney Johnstone, who was a foreman at the blast furnace. Q. All right. A. There was numerous more. Because when this thing started, we would all sit there in the lunchroom and stuff, you know, and all of the crew chiefs were there and discuss this thing with Humphreys. There was numerous more, but there is three. Q. Within how many days after you got the first notice from Humphreys did you tell these supervisors and indicated to them that eventually you'd file a workers' comp claim? A. We're saying March the 17th? Q. Yeah. A. Probably around the first of April I called Humphreys. I never heard anything from them. And they told me it was read on the 17th of March by Dr. Ray A. Harron. Q. You're saying that you found out on the first of April? A. I'd say probably the 3rd or 4th of April we were talking about it. (Emphasis added.) -5-

6 The ALJ stated in his opinion that from this testimony it appeared "unquestionable" that Craft had communicated to his supervisors the fact that he had been diagnosed with asbestosis. Taken in isolation, we might agree that the statement that he had contracted asbestosis might not be sufficient to put AK Steel on notice as to a potential workers' compensation claim. However, Craft's testimony clearly indicates that contraction of asbestosis was a major concern among workers and supervisors at the plant and a main topic of conversation at lunch and elsewhere. We are therefore convinced that Craft's conversations with his supervisors must be viewed in the context of the plant atmosphere at the time. Thus, Craft's statement that he had contracted asbestosis and was joining other plant employees in the asbestos litigation was, under the circumstances, sufficient to apprise his employer of a potential claim. In Newberg v. Slone, Ky., 846 S.W.2d 694, 700 (1992), the Kentucky Supreme Court made clear that no particular form of notice is required to satisfy the statutory directive: There are no strict procedural guidelines for giving notice, and although KRS specifies that notice is to be in writing, any verbal information communicated to the employer is sufficient where it brings knowledge to him of the work-related injury or condition. KRS ; Carr v. Wheeler, Ky., 265 S.W.2d 490 (1954). (Emphasis added.) In our opinion, given the fact that the AK Steel supervisors were well-aware that many employees were joining the asbestos litigation, Craft's statements to those supervisors fall -6-

7 within the "verbal information" standard. We believe our conclusion is supported by well-established caselaw holding that knowledge of persons in supervisory capacities will be imputed to the employer. The former Court of Appeals held in Blue Bird Mining v. Litteral, 314 Ky. 709, 236 S.W.2d 936, 938 (1951), that where a supervisor witnessed an employee being struck on the head by a fist-sized lump of coal, the employer was put on notice of a potential claim for benefits, stating "that notice of a physical injury carries with it notice of all those things which reasonably may be anticipated to result from it. When Craft s supervisors were put on notice that he had contracted asbestosis, we believe the employer was put on notice of a potential claim. We are also of the opinion that Craft's communication to his supervisors fully comports with intent of KRS , which provides relief from the failure to give proper notice: The notice shall not be invalid or insufficient because of any inaccuracy in complying with KRS unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this chapter if it is shown that the employer, his agent or representative had knowledge of the injury or that the delay or failure to give notice was occasioned by mistake or other reasonable cause. (Emphasis added.) Again, Craft s communication to his supervisors that he had contracted asbestosis provided AK Steel with knowledge of the injury. Additionally, the relevant notice statute, KRS (2), provides as follows: -7-

8 The procedure with respect to the giving of notice and determination of claims in occupational disease cases and the compensation and medical benefits payable for disability or death due to the disease shall be the same as in cases of accidental injury or death under the general provisions of this chapter, except that notice of claim shall be given to the employer as soon as practicable after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, or a diagnosis of the disease if first communicated to him, whichever shall first occur. (Emphasis added.) Thus, if we are to treat occupational disease cases in the same manner as injury cases for purposes of the notice statute, we find it appropriate to equate Craft's communication that he had contracted asbestosis with the holding in Litteral that when the foreman saw the claimant being hit on the head with a lump of coal, the employer (via its foreman) had notice of the employee s claim. Finally, we note Professor Larson's treatise on workers' compensation law and his analysis of the notice issue. In 7 Larson's Workers' Compensation Law, 78.31(a)(1), he states, "The present tendency is to excuse lack of notice whenever the employer acquired actual notice of the accident, no matter how that knowledge was acquired." Citing Kentucky caselaw, Larson notes that knowledge of persons in supervisory positions can be imputed to the employer. Id. at 78.31(b)(1); KRS ; and see, Newberg v. Hudson, Ky., 838 S.W.2d 384 (1992). Larson points out, however, that knowledge of the injury must be coupled with a -8-

9 possible work-connection (a)(2). Applying the rationale of Slone and Litteral to the facts before us, we are convinced that the supervisors knowledge that numerous AK Steel employees were joining the asbestos litigation is sufficient to satisfy the "workrelated" requirement. Finally we note Professor Larson's conclusion regarding notice to the employer: The guiding principle in these cases should be the idea that the reasonableness of the claimant's reliance on a particular person as a conduit for knowledge or notice to the employer should be appraised in the light of the knowledge and instructions available to the claimant, rather than on legalistic considerations of the recipient's actual authority (b)(3). Combining this compelling rationale with the statutory mandate and Kentucky caselaw interpreting it, we find that under the specific facts of this case Craft's communication to his supervisor constituted notice sufficient as a matter of law to prevent dismissal. The decision of the Workers' Compensation Board is reversed and the case remanded for further proceedings on the merits. KNOX, JUDGE, CONCURS. DYCHE, JUDGE, DISSENTS. BRIEF FOR APPELLANT: Robert G. Miller, Jr. Paintsville, Kentucky BRIEF FOR APPELLEES: Carl D. Edwards Ashland, Kentucky -9-