Michael Pursifull v. Braun Plastering Company, Inc.

On August 14, 2007, the Missouri Court of Appeals for the Western District (Court) issued an opinion affirming in part and reversing in part the April 7, 2006, Final Award of the Labor and Industrial Relations Commission (Commission) in the above-referenced case. Pursifull v. Braun Plastering & Drywall, No. WD66881 (Mo.App. W.D., August 14, 2007) (Mandate October 17, 2007).

The Court affirmed the Commission’s decision that compensation was not available for the September 21, 2003, accident, thus, fully resolving Injury No. 03-147759. The Court reversed the Commission’s decision that compensation was not available for the September 1, 2003, accident. The Court held that neither the administrative law judge nor the Commission made any specific finding whether the untimely notice for the September 1, 2003, accident was overcome and whether the September 1, 2003, accident was compensable.

By mandate issued October 17, 2007, the Court remanded this matter to the Commission for the limited purpose of determining whether the September 1, 2003, accident was in fact compensable and whether employee incurred any medical expense, past or future, solely as a consequence of the September 1, 2003, accident. Pursuant to the Court’s opinion and mandate, we issue this award.

Section 287.420 RSMo. sets forth the notice requirement. The relevant portion 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 (Mo. App. E.D. 1996). However, the failure to give timely written notice may be excused if the Commission finds that the failure did not prejudice the employer. Willis v. 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 that the employer had actual knowledge of the accident when it occurred. Soos v. Mallinckrodt Chemical Company, 19 S.W.3d 683 (Mo.App. E.D. 2000). However, when the claimant does not show either written notice or actual knowledge, the burden rests on the employee to supply evidence and obtain the Commission’s finding that no prejudice to the employer resulted. Id. 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. Id.

Employee failed to provide notice of his September 1, 2003, accident until some time between October 18, 2003, and October 31, 2003. Clearly this notice was untimely. However, the Commission finds that employee has overcome his failure to provide timely notice by showing that employer was not prejudiced by his failure.

Employer's corporate secretary testified that she would not have done anything differently during the investigation of employee's September 1, 2003, accident had employer received timely notice. She was able to interview the sole witness listed on employee's report of injury and also had the ability to interview any other person working that day by reviewing employment records to determine who worked that day, as well as reviewing her work notes from that date. Thus, since employer would not have done anything differently, we do not believe it was prejudiced by employee's failure to provide timely notice of his accident and injury.

Since we find that employee has overcome his failure to provide employer with timely written notice, we must next determine whether employee's accident on September 1, 2003, is compensable. The relevant case law pertaining to the issue of establishing medical causation can be gleaned from reviewing the appellate court cases of Griggs v. A. B. Chance Company, 503 S.W.2d 697 (Mo.App. W.D. 1973), and Goleman v. MCI Transporters, 844 S.W.2d 463 (Mo.App. W.D. 1992). The Griggs case contains the following guiding principles:

"A party who claims benefits under the workman's compensation law has the burden to prove that an accident occurred and that it resulted in injury."

(Page 703)

"A claimant must show not only causation between the accident and the injury but also that a disability resulted and the extent of such disability."

(Page 703)

"Whatever may be the quantum of proof the law imposes on a given issue in a compensation case, however, such proof is made only by competent substantial evidence and may not rest on surmise or speculation."

(Pg. 703)

"The rule is that the burden of proof rests on the claimant in a workmen's compensation proceeding, and it is not sufficient for recovery to show only that the injury complained of resulted either from one or the other of two causes, for one of which, but not the other, the employer would be liable. The claimant must produce evidence from which it reasonably may be found that such injury resulted from the cause for which the employer would be liable."

(Pg. 704)

"Where the condition presented is an acute aggravation of a pre-existing degenerative back condition with nerve root irritation, or any other sophisticated injury, which requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor-in the absence of expert opinion-is the finding of causation within the competency of the administrative tribunal."

(Pg. 704-705)

The Goleman case, supra, follows the principles enunciated in the Griggs case, supra, and, like the two instant claims, involves two successive accidents with the same employer. The employee, in one of his points on appeal to the appellate court, contended that since the same employer was allegedly liable for the two injuries, it did not make any difference to separate the two injuries, because the employer was liable for both injuries. The appellate court rejected this contention because this argument "ignores that there were two separate claims pending and the claimant was only entitled to one recovery for the claim at issue". (Pg. 466). The court emphasized that each claim was the subject of a separate pending action and the compensability of each independent of the other.

Employee attempted to establish a medical causal relationship between his condition complained of and the accident, through the testimony of Dr. Trecha. When Dr. Trecha initially saw employee, on November 17, 2003, both accidents and

injuries had allegedly occurred. The testimony of Dr. Trecha, at best, was that if the history given him by employee were assumed to be true, both injuries were causative of the need for treatment Dr. Trecha subsequently rendered, and all sequelae. There was not an attempt by Dr. Trecha to separate the two injuries and determine which of the two actually caused the alleged back condition and subsequent treatment rendered. There is no evidence in this record differentiating between the two injuries, as one being the cause of the ultimate back problem that Dr. Trecha treated subsequent to November 17, 2003.

As noted in the Goleman case, supra, the fact that the two successive injuries were with the same employer does not relieve the burden of employee to separate, distinguish and differentiate the cause of the condition. As clearly stated in Griggs, supra, the employee has the burden of proof to show that an accident occurred and that it resulted in an injury. It is not sufficient for recovery to show only that the injury complained of resulted either from one or the other of two causes, and the employee must produce evidence from which it reasonably may be found that such injury resulted from the cause for which the employer would be liable.

Employee ultimately underwent surgery under the auspices of Dr. Trecha who surgically repaired a herniated disc at L5S1. A herniated disc, requiring surgical intervention, is a sophisticated injury, and the proof of causation of a herniated disc is not within the realm of lay understanding nor, in the absence of expert medical opinion, is the finding of causation within the Commission's competency.

The burden was on employee to prove the injury sustained was attributable to a work related accident for which the employer would be liable. The Commission would be speculating as to whether or not employee's complained of medical condition was caused by the accident occurring as alleged on September 1, 2003, and what treatment, if any, flowed from the September 1 accident. Accordingly, employee has failed in his burden of proof and the denial of compensation benefits is affirmed.

Employee has overcome his failure to provide employer with timely written notice of his September 1, 2003, work accident by showing that employer was not prejudiced by this failure. However, employee has not satisfied his burden to show that his work accident of September 1, 2003, was a substantial factor in causing employee's herniated disc and need for medical treatment. Thus, employee's claim for benefits for his September 1, 2003, accident is denied.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of January 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary