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DECEMBER 17, 2004; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2004-CA-000414-WC

BILLY BAKER PAINTING

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-97-76344

DANIEL BERRY; HON. BONNIE C. KITTINGER, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE:

BARBER, McANULTY, AND MINTON, JUDGES. Appellant, Billy Baker Painting (Billy Baker),

BARBER, JUDGE:

petitions for review from a decision of the Workers' Compensation Board (WCB) that affirmed a decision of the Administrative Law Judge (ALJ) finding that the two-year Statute of Limitations applicable to filing an application for adjustment of claim was tolled on Appellee, Daniel Berry's (Berry), claim for benefits due to a knee injury. Having

thoroughly reviewed the facts and circumstances of the case and the applicable case law, we affirm. The facts are more than adequately set forth in the ALJ's Opinion and we adopt that statement as follows: Plaintiff, Daniel Berry, filed for workers' compensation benefits on December 17, 2002, against Defendant, Billy Baker Painting. Plaintiff alleges that on or about July 19, 1997, he injured his right knee while stepping onto a ladder, which shifted, and that subsequently, he developed back pain from limping on his right leg. Defendant filed a Notice of Claim Denial, on Form 111, stating that the claim is barred by the Statute of Limitations, inasmuch as the employer last paid temporary total disability benefits in November 1997. Defendant also filed a Special Answer, specifically raising the affirmative defense of Statute of Limitations contained in KRS 342.185. . . . 1. Plaintiff is 52 years old and his work history is that of a painter and a musician. He sustained an injury to his right knee on July 19, 1997, as he was painting an interior wall and attempted to step onto a ladder. He received payment of temporary total disability benefits through November 16, 1997, and returned to work for the same employer for another 3

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