Opinion
No. 23534
September 25, 2000
APPEAL FROM LABOR AND INDUSTRIAL RELATIONS COMMISSION
REVERSED AND REMANDED.
William F. Ringer, counsel for appellant.
Rebecca J. Tatlow, counsel for respondent.
Before Parrish, P.J., and Shrum, J.
The Employer appeals in this workers' compensation case from the final award of the Labor and Industrial Relations Commission (Commission), which affirmed and incorporated by reference the decision of the administrative law judge (ALJ). The ALJ determined that Glenda Messersmith (Claimant) sustained a work-related injury and that she satisfied the notice requirements of section 287.420 in reporting her injury.
Statutory references are to RSMo 1994 unless otherwise indicated.
Employer's dispositive point contends that Claimant's failure to comply with the notice requirements of section 287.420 bars her from maintaining this action under chapter 287. Employer alleges the Commission erroneously found that Claimant had good cause for noncompliance with the statute and that Employer was not prejudiced thereby. We agree with Employer.
Claimant began working as a licensed practical nurse (LPN) for Employer, the Mt. Vernon Rehabilitation Center, in October 1996. On December 25, 1996 (the Christmas incident), Claimant was assisting a stroke patient in a wheelchair who needed to go to the bathroom. During the process, the patient fell on Claimant's right neck and shoulder. Claimant felt a "very sharp stabbing pain" down her left arm. The pain subsided after Claimant placed the patient on the toilet. However, Claimant found it necessary to call another LPN to assist her in placing the patient back in the wheelchair. Claimant cannot recall the name of the patient or the LPN involved in the incident.
Two or three days later, Claimant again suffered pain down her left arm which "just got more and more severe" as "time went on." Three weeks after the Christmas incident Claimant went to her family practitioner, Dr. Pegram, for problems with her left arm. Dr. Pegram indicated that Claimant most likely had a pulled muscle. Claimant testified she did not relate the details of the Christmas incident to Dr. Pegram because she did not know of any injury to her left arm muscle.
After a period of conservative treatment, Dr. Pegram referred Claimant to an orthopedic surgeon, Dr. Olive. Claimant admitted she initially did not tell any of her medical care providers that her left arm injury was work-related. Further, Claimant could not recall to her healthcare providers any specific trauma which caused her left arm pain. Claimant explained that she did not report the accident or trauma because she could not think of any incident which injured her left arm muscles.
Between January 22, 1997, and January 27, 1997, Claimant attempted to work with her left arm in a sling as recommended by Dr. Pegram. As of January 22, 1997, Claimant had not missed any work days after the Christmas incident. On January 27, 1997, the last day Claimant worked for Employer, Patti Nash, Claimant's supervisor, informed Claimant that she could not fulfill LPN duties with her arm in a sling. Claimant admitted that as of January 27, 1997, she had not reported any injury to Employer or completed a written accident form.
On January 30, 1997, Claimant agreed that she spoke on the phone with Ms. Nash and told her she would be undergoing physical therapy for about two weeks. Claimant told Ms. Nash that she had no idea how she was injured and that she did not remember any pull, pop, or pain. Claimant specifically told Ms. Nash that she did not hurt herself at work. Eventually, Claimant told Ms. Nash, on February 10, 1997, that she must have hurt herself lifting or pulling a patient at work.
After X rays were taken on February 14, 1997, Dr. Olive informed Claimant that she had two herniated discs in her neck. On February 17, 1997, Claimant provided Employer with a written accident report concerning the alleged Christmas incident. Dr. Olive performed a cervical diskectomy and fusion on April 21, 1997. Dr. Olive indicated that if Claimant's history of the Christmas incident is correct, "the episode is consistent with an injury that could cause a patient to herniate a cervical disc or discs and ultimately require surgery."
On cross-examination, Claimant admitted she sustained a work-related injury on December 9, 1996, when a piece of equipment fell on her foot about 1:30 p.m. By 2:30 p.m., Claimant had reported the injury to Employer and completed an accident report form.
Claimant further admitted that she sustained another work-related injury on January 14, 1997, when she injured her right index finger on a wheelchair about 9:20 a.m. By 9:30 a.m., Claimant had reported the injury to Employer and completed an accident report form.
The ALJ found that Claimant was credible and determined that she suffered a work-related injury during the Christmas incident. Further, the ALJ determined that Claimant established good cause for failing to timely report the accident because she was not aware that her injury related back to the December incident until February 1997. Finally, the ALJ found that Employer suffered no prejudice by Claimant's untimely notice because:
[E]mployer/self-insured was not hindered in its ability to conduct a thorough and accurate investigation of claimant's injury based upon the information that claimant provided to employer by February 10, 1997 and February 17, 1997. Additionally, it is clear that the employer as early as January 24, 1997, was aware of claimant's medical treatment and continued to monitor that treatment even though no specific claim of accidental injury was made at that time.
The Commission adopted the ALJ's decision by a two-to-one vote. The dissenting Commission member concluded that Claimant failed to show good cause for failing to give timely notice and failed to prove Employer suffered no prejudice from the untimely notice.
In reviewing a workers' compensation award, we review the findings of the Commission and not those of the ALJ. Gordon v. Tri-State Motor Transit Co. , 908 S.W.2d 849, 852 (Mo.App. 1995). Here, the Commission's award attached and incorporated the ALJ's award and decision. We, therefore, consider the findings and conclusions of the Commission as including the ALJ's award. Brown v. Treasurer of Missouri , 795 S.W.2d 479, 482 (Mo.App. 1990). "[W]e first examine the whole record, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the award, in order to determine if the record contains sufficient competent and substantial evidence to support the award." Walsh v. Treasurer of the State of Missouri , 953 S.W.2d 632, 635 (Mo.App. 1997); Davis v. Research Medical Center , 903 S.W.2d 557, 571 (Mo.App. 1995). If there is sufficient competent and substantial evidence to support the award, we then determine if the award is against the overwhelming weight of the evidence. Id. In our review, we are mindful that we may not substitute our judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. Id. The Commission is free to disbelieve uncontradicted and unimpeached testimony. Alexander v. D.L. Sitton Motor Lines , 851 S.W.2d 525, 527 (Mo.banc 1993). "Its interpretation and application of the law, however, are not binding on this court and fall within our realm of independent review and correction." Walsh , 953 S.W.2d at 635; Davis , 903 S.W.2d at 571.
The relevant part of section 287.420 provides:
No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice.
The purpose of this section is to give the employer timely opportunity to investigate the facts surrounding the accident and, if an accident occurred, to provide the employee medical attention in order to minimize the disability. Gander v. Shelby County , 933 S.W.2d 892, 895 (Mo.App. 1996); Willis v. Jewish Hospital , 854 S.W.2d 82, 84 (Mo.App. 1993). However, the failure to give timely written notice may be excused if the Commission finds either that there was good cause for the failure or that the failure did not prejudice the employer. Id. at 84-85.
Good Cause Issue
The ALJ apparently found Claimant had good cause for belatedly reporting the Christmas incident by this finding:
Since claimant's problems in this case worsened over time after the immediate pain of her accidental injury was gone, it is easy to understand why claimant did not make a connection between the incident at work and her subsequent neck and shoulder pain until Dr. Olive's diagnosis. Indeed, it is easy to understand how a reasonable lay person would not make a connection between a left arm injury and a pain following on the lay person's right shoulder and neck.
Missouri case law does not support a finding that Claimant's evidence establishes good cause for failure to timely report the Christmas incident. The Commission misapplied the law in holding otherwise.
In Willis , claimant worked as a pot scrubber in employer's kitchen. He alleged that he was injured while emptying trash cans. After the Commission denied his claim for lack of notice, claimant appealed asserting, inter alia, that he had good cause for failing to comply with the written notice requirements of section 287.420. 854 S.W.2d at 85. He argued that his lack of education and his limited reading and writing skills provided good cause for failure to timely report his injury. Id. The court answered claimant's contention by saying:
Missouri case law on this issue has found the existence of good cause only where the injury was latent or the claimant did not realize the extent of the injury until after the thirty day period had passed. See, Beatty v. Chandeysson Electric Co., 238 Mo.App. 868, 190 S.W.2d 648 (1945); Reeves v. Frasier-Brace Engineering Co., 237 Mo.App. 473, 172 S.W.2d 274 (1943); Buckner v. Quick Seal, 233 Mo.App. 273, 118 S.W.2d 100 (1938); and State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008 (1932). Claimant's alleged work-related injury was evident immediately based on his own testimony that he left work early on September 6, 1988 because of the injury. These facts are analogous to Brown v. Douglas Candy Co., 277 S.W.2d [657, 662-63 (Mo.App. 1955)], where the court did not find good cause because the injury had caused immediate and severe pain. Claimant's second point is denied.Id. at 85-86.
In Brown v. Douglas Candy Co. , Claimant fell at work and experienced a severe pain in her back, which continued for several months. 277 S.W.2d at 660. She did not report the accident to her employer until after she was diagnosed with a disc injury. Id. The court held she did not show good cause for not giving timely notice to her employer because, even though she did not know she had a disc injury for several months, she did know that she had painfully injured her back. Id. at 662-63. Specifically, the court said:
In the instant case, the claimant testified that immediately upon slipping and falling, she suffered a severe pain in her back and was unable to continue the type of work she had been doing; that she continued to suffer pain in her back and legs and applied many home remedies to relieve such condition. It is true she did not know that she had injured a disc in her spinal column, if she did, but she did know that she had painfully injured her back and was in constant pain until the operation. Under such circumstances, we believe it became her duty to promptly report the accident to her employer. Consequently, the failure to give notice cannot be excused on the ground of "good cause". . . .Id.
Finally, the facts in the recent case of Soos v. Mallinckrodt Chemical Co. , 19 S.W.3d 683 (Mo.App. 2000), are similar to the Brown case. In Soos , claimant worked in a pancake dryer repairing bolts and broken welds. While working, claimant noticed a sharp shooting sensation in his right leg. After work, his back stiffened up and started to ache. His pain was severe enough to cause him to miss work and seek medical treatment. Over thirty days later, claimant's doctor discovered that claimant had a large disc herniation and recommended surgery. Id. at 685. On December 27, 1995, claimant reported to his employer that he was injured on the job on October 15, 1995. Id. Relying on Brown , the Commission determined that claimant failed to show good cause for not giving timely notice. Id. at 687-88. The court of appeals upheld this determination.
Here, the facts are almost identical to Brown and Soos other than the instant Claimant displayed thorough knowledge of the requirement to promptly report work-related injuries. Claimant, within the hour, reported her injury of December 9, 1996 (sixteen days before the Christmas incident), and within minutes reported her injury of January 14, 1997 (twenty days after the Christmas incident).
By Claimant's own description of the Christmas incident, she felt a sharp stabbing pain down her left arm when the patient fell on her. Two or three days later, she suffered pain in her left arm which worsened as time passed until she sought treatment from her doctor three weeks later. She was treated well within the 30-day reporting period. However, she never mentioned a work-related injury to Dr. Pegram or reported the injury to Employer.
Like the claimant in Brown , Claimant did not know she had a herniated disc until February 14, 1997, but she did know she painfully injured her left arm. She knew the pain worsened two or three days later and the pain continued until she sought medical treatment. Certainly, Claimant knew she was hurt on Christmas day and knew the pain was caused by an accident at work. Under these circumstances Brown held that it was claimant's duty to report the accident and found that good cause was not shown.
Soos upheld the Commission's finding of no good cause based on the Brown decision. 19 S.W.3d at 687-88. The Willis case was also decided based upon Brown. 854 S.W.2d at 86. Under this line of cases, we are compelled to hold that the Commission misapplied the law to the facts of this case, and the finding of good cause is erroneous.
Lack of Prejudice Issue
A claimant can establish lack of prejudice by showing the employer had actual knowledge of the accident at the time of the occurrence. Klopstein v. Schroll House Moving Co. , 425 S.W.2d 498, 503 (Mo.App. 1968). When the employer does not admit actual knowledge of the accident, a factual issue arises. Id. An employee makes a prima facie showing of lack of prejudice by producing substantial evidence that employer had actual notice of the accident. Id. at 503-04. In that instance, the burden of producing evidence of prejudice shifts to the employer. Id. at 504. When no written or actual notice is shown, the burden rests on claimant to supply evidence that the employer suffered no prejudice. Id.
Here, Claimant admits that she failed to give written notice of the accident within the required 30-day time period. Claimant also admitted that she told Ms. Nash on January 30, 1997, that her injury in question was not work-related. Thus, Claimant has produced no evidence that employer timely received actual or written notice of the accident. Therefore, the burden of proving no prejudice rests with Claimant.
We find no evidence from Claimant indicating lack of prejudice to Employer. "If no such evidence is adduced, we presume that the employer was prejudiced by the lack of notice because it was not able to make a timely investigation." Soos , 19 S.W.3d at 686.
Claimant argues that Employer suffered no prejudice because she "informed her employer that she was having problems with her left arm and kept her supervisor apprised of her course of treatment." Claimant also points to her attempt "to work while wearing a sling for several days."
Certainly, Employer knew Claimant had a left arm injury before January 25, 1997. However, Employer never was timely notified that Claimant's left arm injury was work-related. In fact, Claimant denied a work-related injury to Ms. Nash as late as January 30, 1997. The end result is a lack of any timely investigation by Employer because Claimant never indicated her alleged Christmas injury was work-related until February 10, 1997.
To prove lack of prejudice in the absence of any notice, Claimant was required to show that Employer (1) knew she was injured, and (2) knew accompanying facts which would reasonably indicate that the injury was work-related. See Gander , 933 S.W.2d at 896. Claimant failed to meet the second prong of this requirement.
As in Soos , Claimant in this case did not produce any evidence that Employer was able to conduct a thorough and accurate investigation of all witnesses and records on or after February 10, 1997. Obviously, Employer's investigation was severely hampered by Claimant's fading memory since she could not recall the patient's name who fell on her or the LPN's name who assisted her with the patient. In contrast, the claimant in Seyler v. Spirtas Industrial , 974 S.W.2d 536 (Mo.App. 1998), produced evidence that employer's director of safety had access to all the accident witnesses "that he would have had if claimant would have provided timely written notice." Id. at 538. No such evidence was produced in this case.
In Klopstein , the claimant failed to give timely written notice, and the employer had no actual notice of the injury. 425 S.W.2d at 502. The appellate court determined that employer was prejudiced because of claimant's bad memory. There, claimant was unable to relate the time or date of the injury other than it occurred in the first part of September. Id. at 504. In this case, Claimant's bad memory was equally prejudicial.
As stated in Willis :
The reasoning behind the thirty day notice rule is to give the employer the opportunity for a timely investigation. The prejudice had already occurred when the employer received notice of the alleged work-related injury.854 S.W.2d at 85.
In this case, the prejudice had already occurred when the Employer received notice of Claimant's alleged work-related injury. Employer had no opportunity to timely investigate the accident by interrogating the witnesses. After Employer was notified of the accident, Claimant could not remember the names of the witnesses to the accident.
We find that the Commission's decision is not supported by substantial and competent evidence on the prejudice issue. Therefore, the award is reversed and the cause remanded to the Commission for entry of a final order dismissing the claim for failure to comply with the notice requirements of section 287.420.