Edna Claunch v. Degree of Honor Protective Association

Employee alleges that the accident occurred on her way home from Alice Hummelsheim's home, where she and Ms. Hummelsheim were discussing employer business regarding a Christmas party, a yearbook, and other matters, involving employer's business. Ms. Hummelsheim is the state president for the State of Missouri and is the president of the Walnut Park Lodge. Employee initially testified that Mr. Hummelsheim participated in the meeting. She later testified that he was actually reading a newspaper when she and Ms. Hummelsheim were talking. Ms. Hummelsheim also testified that employee and she discussed these business matters on July 29, 2003. Although three state members are necessary to constitute a quorum to conduct employer business, Ms. Hummelsheim was the only state officer participating in the meeting. Employee is not considered a state officer.

This meeting was not listed on employee's itinerary for the month of July 2003, nor did employee claim reimbursement for mileage for this meeting when she submitted her expense report for the month of July 2003, three to four days after the accident. Additionally, employee did not list this meeting when she completed the required report setting forth her business activities conducted for the month of July. Employee and Ms. Hummelsheim had attended a state convention together in Indiana from July 11 through 13, 2004, and spent a substantial amount of time together. Employee and Ms. Hummelsheim are friends who socialize with each other in addition to discussing employer's business. Employee and Ms. Hummelsheim had last met on July 26, 2003, at Ms. Hummelsheim's home when she hosted a lodge meeting.

Employee had been instructed by employer to cut back on expenses, including travel, due to the loss of membership employer was experiencing. Employee was encouraged to use the telephone as much as possible to conduct business because the cost of using the telephone versus reimbursing for mileage was substantially less. Employee admitted that any business conducted with Ms. Hummelsheim could have been conducted by telephone instead of in person. Employee's supervisor testified that she would not have approved an in-person meeting with Ms. Hummelsheim because of costs and the fact that employee and Ms. Hummelsheim had met during the month of July 2003, on several occasions.

Section 287.420 RSMo, provides:

No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and name and address of the person injured, have been given 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 receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds the employer was in fact misled and prejudiced thereby.

Accident is defined as "an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury." Section 287.020.2 RSMo. Employee's accident occurred on July 29, 2003. Although she did not learn of the true nature and extent of her injuries until later, the motor vehicle accident occurred violently and suddenly and produced at that time objective symptoms of an injury for which she was transported to a hospital. Employee had thirty days from July 29, 2003, to provide notice of the accident.

Employee alleged that she telephoned her supervisor, Jacqueline A. Felling, the next day after the accident. She believes that she told her supervisor that she was on her way home from "Alice's," but she admitted that her supervisor might not have caught that statement. Ms. Felling admitted that she knew on August 1, 2003, that employee was involved in a car accident on July 29, 2003, but denied that she was put on notice that the accident was work related.

The fact that employer was aware that an accident occurred does not impute notice that the accident was work related. As stated in Gander v. Shelby County, 933 S.W.2d 892 (Mo. App. 1996);

[i]t is not enough, however, that the employer, through its representatives be aware that the claimant "feels sick," or has a headache, or fell down, or walks with a limp, or has a pain in his back, or shoulder, or is in the hospital, or has a blister, or swollen thumb, or has suffered a heart attack. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.

Id. at 896, quoting 2B A. Larson, the Law of Workers' Compensation section 78.31(a)(2).

Ms. Felling testified that she returned employee's call on August 1, 2003. Employee stated that she was in a car accident, but not that she was returning from Ms. Hummelsheim's home when the accident occurred. Ms. Felling testified

that employee stated that she was concerned about her car because it was totaled. Based upon the conversation, Ms. Felling had no reason to believe that employee had a potential work related accident or that she had ongoing medical problems. The next conversation Ms. Felling had with employee was the first week of September 2003. Employee stated that her doctor was referring her to a specialist and she was working with her daughter to coordinate transportation. She indicated that she was going to attend as many functions as possible in September and would let Ms. Felling know what the doctor said. Employee said nothing about the accident being work related. Ms. Felling testified that employee did not inform her that the accident was work related until September 23, 2003, when Ms. Felling asked employee whether the accident was work related and employee responded that it was. Employee previously attended employer events in August and September 2003.

We find Ms. Felling's testimony credible. We do not find employee's testimony credible. There were many inconsistencies in employee's testimony at the hearing from her deposition testimony, and with her witness' testimony, her actions, and the affidavit she filed with the Division of Workers' Compensation (Division) in order to get a hardship hearing.

Employee filed an affidavit with the Division swearing that her "ability to obtain needed medical treatment is causing me to endure unnecessary pain and suffering." She also swore in her affidavit that she was forced to postpone diagnostic testing and consultations because employer/insurer refused to provide medical care. She also swore that employer/insurer has refused to provide temporary total disability benefits; thus, causing her financial hardship. When questioned about this at the hearing, employee admitted that neither statement regarding her ability to obtain medical care was true. She had not been denied medical treatment nor had she been turned away from receiving any medical treatment. She underwent the recommended cervical fusion on September 29, 2003, which was deemed necessary after diagnostic testing. She was continuing to receive medical care without delay at the time of the hearing. Additionally, although employer/insurer did not pay temporary total disability benefits, her employer was paying her full salary during the time she was off work pursuant to vacation time she had requested or through short-term disability benefits.

Her actions in this case are also inconsistent with her testimony. Employee hired an attorney in August 2003. She continued to submit her medical bills through her group medical insurance. She did not indicate to any of the treating physicians that her accident was work related and on a patient questionnaire dated September 4, 2003, she checked that she was filing a lawsuit but did not check that she was filing a workers' compensation claim. It was not until Ms. Felling asked her on September 23, 2003, whether the accident was work related that employee responded that it was. Her testimony that she was unaware that she could claim workers' compensation benefits and that she was on pain pills or in too much pain to take certain actions, such as claim mileage reimbursement for the trip on July 29, 2003, or report that she was on her way home from Ms. Hummelsheim's home after discussing business is inconsistent with her actions taken after the accident. She had the presence of mind to hire an attorney as a result of the accident, which demonstrates her knowledge that she had some legal rights as a result of the accident.

Additionally, employee initially testified that Mr. Hummelsheim participated in this meeting on July 29, 2003. She later corrected this testimony by admitting that he was actually reading the paper and not participating in the meeting. In her deposition, which was admitted without objection, employee testified that Ms. Hummelsheim called her on Sunday, July 27, 2003, and requested to set up a meeting. Employee asked if Monday, July 28, 2003 was convenient and Ms. Hummelsheim replied that she could not meet Monday, but was available to meet on Tuesday, July 29, 2003. Ms. Hummelsheim testified that she called employee on Sunday, July 27, 2003, and requested to set up a meeting for Monday, July 28, 2003, but employee stated she could not meet Monday, but could meet Tuesday, July 29, 2003. While such minor details may not normally be persuasive on the issue of credibility, when the conflicts in the details are coupled with filing an affidavit with knowingly false statements in it and other facts presented in the claim, minor conflicts do have impact on a credibility finding.

Even if we were to assume as true, that employee stated to Ms. Felling that she was returning from "Alice's" home when the accident occurred, employer had no reason to suspect that employee was meeting with Ms. Hummelsheim for business purposes on July 29, 2003. Employee submitted her expense report and itinerary for the month of July 2003, three to four days after the accident. She failed to claim mileage for reimbursement for the trip to Ms. Hummelsheim's home and failed to report that she had a meeting with Ms. Hummelsheim on July 29, 2003. Ms. Hummelsheim and employee had met the previous Saturday, July 26, 2003, and had attended a three-day conference in Indiana from July 11 through 13, 2003, which is further reason for the supervisor not to have reason to suspect that the meeting would have had a business purpose. We find employee did not notify employer that her car accident might have been work related until September 23, 2003, when she provided actual notice.

Employee argues that employer admitted it had knowledge of a work related accident on August 24, 2003, because the

chief financial officer wrote that the date employer was notified of the accident on the report of injury filed with the Division was August 24, 2003. The chief financial officer credibly testified that employer was not aware that employee was claiming that the accident was work related until September 23, 2003, which is when he completed the report of injury. He explained that he used the date of August 24, 2003, on the report of injury because that was the first date that employee's accident was reported in writing; however, there was no indication on that writing that employee was claiming that the accident was work related.

Because she failed to provide actual notice within thirty days of the date of the accident, the next determination involves whether she had good cause for her failure to provide notice. Brown v. Douglas Candy Co., 277 S.W.2d 657 (Mo. App. 1955).

Employee stated that she was not familiar with the workers' compensation laws and was not aware that she should report it. We do not find this constitutes good cause for her failure to report the accident. Employee knew to report she was involved in an accident. It does not require any degree of expertise in workers' compensation laws to also report to her supervisor that she was returning from Ms. Hummelsheim's home after discussing employer business. Nor is any degree of expertise required to submit an expense report claiming mileage for a business meeting on July 29, 2003, or to report the meeting on an itinerary submitted for the month of July 2003 when compiling the activities she had done for the month of July 2003. She was aware she had the accident and that she was injured. The fact that she did not realize the extent of her injuries does not constitute good cause for her failure to provide notice to employer. Id. See also Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000).

Failure to provide timely notice, either written or actual, may also be excused if employee demonstrates that employer was not prejudiced by the failure to provide timely notice. Id.; Willis v. Jewish Hospital, 854 S.W.2d 82 (Mo. App. 1993) (overturned on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)); and, Gander, 933 S.W.2d 892 (Mo. App. 1996). The purpose of giving employer notice of a potentially work related accident is to allow the employer the opportunity to timely investigate the accident and to minimize any resulting disability from the accident by providing medical attention. Soos, 19 S.W.3d at 686. Prejudice to an employer may be presumed when notice is not given of a potentially work related accident until two months after the accident because the employer is deprived of the opportunity to timely investigate the facts surrounding the accident. Willis, 854 S.W.2d at 85. See also Gander, 933 S.W.2d at 896-897.

We find employer was prejudiced by employee's failure to provide notice that she was claiming her car accident on July 29, 2003, was work related until September 23, 2003. A period of just shy of two months had passed. Employer was deprived of its opportunity to timely investigate the facts surrounding the accident. As stated in Willis, 854 S.W.2d 82:

Claimant argues that because the employer did not investigate after it knew that claimant was alleging a work-related injury that it was not prejudiced. This argument misses the point. 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 work-related injury. Any reference to what employer did or did not do two months after the alleged injury is irrelevant to the issue of whether employer had the opportunity to conduct a timely investigation.

Id. at 85 .

As in Willis, the prejudice here to employer had already occurred when employee gave notice.

Employee's claim for benefits is denied pursuant to section 287.420 RSMo. Because the notice issue is dispositive of the claim, we do not address the issue of arising out of and in the course of employment. The administrative law judge's assessment of costs against employer/insurer for defending the claim unreasonably, which was inappropriate to begin with given the facts in this case, is reversed. No costs are assessed against employer/insurer. Employee's request for costs and fees filed with the Commission is denied. Employer/insurer's defense was completely reasonable and justifiable. Employee's request to strike issue number three of employer/insurer's brief is denied.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued

August 27, 2004, are attached, but in no way are his findings and conclusions to be construed as being incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{30^{\text {th }}}$ day of March 2005.

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Secretary

I have reviewed and given consideration to all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed. Therefore, I adopt the award and decision of the administrative law judge as my decision in this matter.

Employee testified live before the administrative law judge. He specifically found her to be a very credible witness. He had a better vantage point to assess her credibility than the Commission. The ultimate determination of credibility of witnesses rests with the Commission, but the Commission should take into consideration the credibility determinations made by the administrative law judge, particularly, where the administrative law judge "had before him [live witnesses] and was thus in a position which gave him a great vantage ground over members of the Commission who afterwards had [only] the opportunity of reading [a transcript of] the testimony." Davis v. Research Medical Center, 903 S.W.2d 557, 569 (Mo. App. 1995) (overturned on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)).

Even if I did not defer to the administrative law judge on his credibility assessment of employee, I find the record establishes that she is a credible witness. She worked for this employer since 1977. She is a long-term and faithful employee. She has never had a workers' compensation injury in that entire time. Her lack of knowledge of the intricacies of the workers' compensation laws is understandable. She reported to her supervisor that she had been involved in an accident on her way home from Alice Hummelsheim's home. The supervisor knew who Ms. Hummelsheim was and her position. Additionally, employee kept her supervisor informed of the medical treatment that she was receiving.

Employee's argument that this is sufficient to provide actual notice to employer of potential work related accident is reasonable. The workers' compensation laws do not impose an onerous burden on employee to use talismanic language in reporting a potential work related accident. She should not be deprived of benefits that she is entitled to receive based on her supervisor's lack of knowledge of the workers' compensation laws. She gave employer actual notice of the accident and placed the impetus upon employer to show that it was prejudiced based upon lack of written notice. It has failed to demonstrate that it was prejudiced.

I additionally agree with the administrative law judge's assessment of costs and fees against employer/insurer for defending this claim upon unreasonable grounds. I would further assess costs and fees against employer/insurer for filing this Application for Review with the Commission and compounding its frivolous actions to delay paying the benefits and providing the medical care that this unfortunate employee deserves.

Because my fellow Commissioners reverse the award and decision of the administrative law judge, I respectfully dissent.

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: July 29, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Mo.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Automobile collision.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Neck and low back
14. Nature and extent of any permanent disability: To be determined
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Edna Mae Claunch Injury No.: 03-098240

1. Value necessary medical aid not furnished by employer/insurer? $\ 73,228.54
2. Employee's average weekly wages: $\ 706.69
3. Weekly compensation rate: $\ 471.13
4. Method wages computation: Exhibit I

A true copy: Attest:

Reneé T. Slusher

Director

Division of Workers' Compensation