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 conti