Jimmy Culley v. Royal Oaks Chrysler Jeep, Inc.

fifteen years experience in the field; his duties with employer were, among other things, to greet customers, and attempt to sell a potential customer a new or used automobile; and employee testified that if he was successful in completing a sale, it was his responsibility to follow-up with the needs of the customer and if necessary, deliver the vehicle, clean it, service it, etc.

As of the date of the accident employee was dating and residing with Ms. Ann Evans; Ms. Evans was the owner of an automobile which had been purchased from the employer; on September 10, 2003, the automobile owned by Ms. Evans was in the repair shop of the employer; and the requested repair work was completed that day by the employer.

Prior to September 10, 2003, employee, on several occasions, had driven the vehicle owned by Ms. Evans to and from his employment; employee testified that prior to the accident occurring September 10, 2003, he would, on occasion, leave work in order to pick up Ms. Evans at her job location, somewhere between 3:30 p.m. and 5:00 p.m.; and on September 10, 2003 the accident occurred at 3:37 p.m.

Employee testified that on the day of the accident he was working a split shift, from 9:00 a.m. until 1:00 p.m., and then a four-hour break until 5:00 p.m., at which time he would return to the employer and work from 5:00 p.m. until 9:00 p.m. Employee testified that he was not on the clock and his work shift was not adhered to in strict manner.

On September 10, 2003, employee testified that he informed Joe Gustafson, his supervisor, that the vehicle owned by Ms. Evans had been repaired, was finished, and he was going to return the vehicle to Ms. Evans and she would return him to work. Employee stated that while driving the motor vehicle owned by Ms. Evans from the employer's lot and while merging onto a public street, he was involved in a motor vehicle accident, and sustained personal injuries.

Immediately subsequent to the accident, employee was able to remove himself from the automobile and ambulate; an ambulance was summoned to the scene of the accident but employee, at that time, was not in need of any assistance; subsequently, approximately three hours later, employee presented himself to St. Joseph Health Center for medical treatment due to this accident; employee presented with complaints of stiffness, dizziness, back pain and perhaps being in shock due to the accident; and employee was treated and discharged.

Subsequent to the accident, employee separated from employment and continued to work as a car salesperson being employed with three different employers as of the date of the hearing.

By the date of the hearing employee had received extensive medical care and treatment including back surgery. This surgery was performed in 2005.

Mr. Brodhead was a sales representative for the employer on September 10, 2003; he was familiar with employee, Jimmy Culley; Mr. Brodhead was aware that Jimmy Culley was in a motor vehicle accident on September 10, 2003; Mr. Brodhead was further aware that employee was driving the automobile belonging to Mr. Culley's girlfriend, Ann Evans; Mr. Brodhead had never seen employee drive any other automobile other than the automobile owned by Mr. Culley's girlfriend, Ann Evans; and Mr. Brodhead verified that Mr. Culley's work shift the date of the accident, September 10, 2003, was similar to his, and that it was a split work shift, with the hours being 9:00 a.m. to 1:00 p.m. and 5:00 p.m. to 9:00 p.m. Mr. Brodhead admitted that the hours were not strictly enforced as business actually dictated the hours.

Mr. Clark was a salesman with the employer as of September 10, 2003; he was familiar with employee, Jimmy Culley; Mr. Clark was aware Mr. Culley was involved in a motor vehicle accident on September 10, 2003; Mr. Clark testified that Mr. Culley told Mr. Clark that the automobile belonged to himself and his girlfriend, Ms. Evans; Mr. Clark testified he was aware on several occasions that Mr. Culley drove the motor vehicle to and from work; and Mr. Clark verified the split shift schedule involving employee, i.e., 9:00 a.m. to 1:00 p.m. and 5:00 p.m. to 9:00 p.m., on the date of the accident

Mr. Gustafson was the used car manager and supervisor of employee as of September 10, 2003; Mr. Gustafson was aware employee was involved in a motor vehicle accident on September 10, 2003; Mr. Gustafson unequivocally denied that employee requested permission of Mr. Gustafson to return the automobile owned by Ms. Evans to her; he unequivocally denied that employee informed him that he intended to return her car to her that afternoon; and Mr. Gustafson was aware that the automobile that employee was driving was owned by Ms. Evans and often times used by employee to go to and from work.

Ms. Crisler was the office manager, secretary, treasurer and the individual who handled insurance claims and injuries in behalf of the employer. If an employee was involved in a work related accident as of September 10, 2003, she was the person an individual was to notify, and upon being notified, she would immediately commence investigation of the accident as well as arrange immediate medical care and treatment for the injured employee.

Ms. Crisler unequivocally testified that she was never notified that employee, Jimmy Culley, was alleging a work related accident had occurred on September 10, 2003, until she received notice from the Missouri Division of Workers' Compensation (Division) that a formal Claim for Compensation had been filed. The formal Claim for Compensation was filed with the Division on December 23, 2004, more than fifteen months post accident. Employee never filed a written notice of accident with Ms. Crisler; employee never verbally apprised Ms. Crisler of the accident; and employee never requested Ms. Crisler or any supervisor or management personnel of the employer to provide him workers' compensation benefits in the form of medical treatment, temporary total disability, etc.

Ms. Crisler testified that she did not have an opportunity to investigate employee's alleged work accident or to arrange for medical care and treatment for him because she was never aware his accident was allegedly work related. Ms. Crisler testified that she heard other people talking that employee was involved in a motor vehicle accident in which he wrecked "his" car. Ms. Crisler testified that she never received actual notice of an alleged work related accident until she received a copy of the Claim for Compensation sent to her by the Division of Workers' Compensation some fifteen months post accident.

The emergency room records of St. Joseph Hospital dated September 10, 2003, indicate employee was involved in a motor vehicle accident that was not work related.

As to the issue of notice of accident, the relevant statutory provision is section 287.420 RSMo, which 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 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 that 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 September 10, 2003. Although employee did not learn of the ultimate extent of his injuries until later, the motor vehicle accident occurred violently and suddenly and produced at that time objective symptoms of an injury as employee presented himself within approximately three hours to the emergency room of St. Joseph Hospital. Accordingly, employee had thirty days from September 10, 2003, to provide notice of the accident to the employer.

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 (Mo. App. E.D. 1996). 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. Willis vs. Jewish Hospital, 854 S.W.2d 82 (Mo. App. E.D. 1993).

The most common way for an employee to establish lack of prejudice is for the employee to show tha