Roger Patterson v. Midstate Painting & Drywall

the administrative law judge erred in concluding that employee failed to meet his burden proving that he gave proper notice under section 287.420 RSMo (2005).

Section 287.420 RSMo (2005), provides:

No proceedings for compensation for any accident 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, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

If employee fails to provide employer written notice, it is employee's burden to show that the employer was not prejudiced by the failure to give timely notice. Therefore, employee's failure to provide written notice may be excused if employee demonstrates that employer was not prejudiced by his failure to do so. Employee met his burden as he was able to show that he verbally reported his back condition to employer which put employer on notice of his occupational disease. Employee testified that he met with the owner and his supervisor to report his back condition and informed them at that time that he was being referred to a neurosurgeon. Employee testified that he asked his treating neurosurgeon, Dr. Kennedy, if his back condition could be work-related and Dr. Kennedy told him that his employment could have caused his condition. Employee testified that he reported this information to the owner within a couple of days of his appointment with Dr. Kennedy. Therefore, employer was provided actual notice within the thirty day time frame.

The purpose of giving employer notice of a potentially work-related condition is to allow the employer the opportunity to conduct a timely investigation and to minimize any resulting disability by providing medical attention. Since employer had actual notice of employee's condition it was not prejudiced by employee's failure to provide written notice. Employer was neither deprived of its opportunity to timely investigate the facts surrounding the occupational disease or the opportunity to control medical treatment. I find employee credible and believe the evidence shows that employer was not prejudiced by employee's failure to give written notice as he did provide employer with actual notice of his condition.

Section 287.067.3 RSMo (2005), provides:

An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.

Employee met his burden by establishing that he contracted an occupational disease. Through expert testimony, employee was able to establish that his employment was the prevailing factor in causing his resulting medical condition and disability. Dr. Kennedy, employee's treating surgeon, testified that employee's duties exposed him to the contraction of an occupational disease. Dr. Kennedy testified that employee's back condition was medically causally related to his work activities and that his work was the prevailing factor in causing his condition. There is sufficient evidence to establish that employee's employment was the prevailing factor in the development of his back condition.

Furthermore, employee has shown that he is entitled to payment for past medical expenses. Dr. Kennedy testified that the treatment employee received was necessary and reasonable to cure and relieve him from the effects of the occupational disease. Employee offered into evidence the medical bills that were the product of his workrelated condition and provided testimony relating the medical bills to his condition. Therefore, an award of past medical expenses is justified.

Additionally, employee is entitled to future medical care and treatment. Employee testified that he has not been released by Dr. Kennedy and that Dr. Kennedy referred him to Dr. Feinberg for further medical care and treatment. Employee testified that he is still seeing Dr. Feinberg for treatment for his work-related condition. Employee has shown by reasonable probability that he is in need of additional medical treatment as a result of his work-related condition.

Based on the foregoing, I conclude that employee provided notice to employer by reporting his condition; that employee's work was the prevailing factor in causing the resulting medical condition; and that employee is entitled

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? N/A
4. Date of accident or onset of occupational disease: Alleged February 6, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? N/A
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:

Employee alleged repetitive injury to his back from installing drywall.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Alleged low back
3. Nature and extent of any permanent disability: -0-
4. Compensation paid to-date for temporary disability: -0-
5. Value necessary medical aid paid to date by employer/insurer? -0-

1. Value necessary medical aid not furnished by employer/insurer? $\ 120,672.99
2. Employee's average weekly wages: $\ 562.94
3. Weekly compensation rate: $\$ 375.29 / \ 365.08
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: None

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

Employee: Roger Patterson

Dependents: N/A

Employer: Midstate Painting \& Drywall

Additional Party: Second Injury Fund (Dismissed)

Insurer: American Home Assurance

Injury No.: 06-077430

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL:tr

A hearing was held on April 18, 2007, at the Division of Workers' Compensation in the City of St. Louis. Roger Patterson (Claimant) was represented by Mr. Dean Christianson. Midstate Painting \& Drywall (Employer) and its Insurer, American Home Assurance, were represented by Mr. John Dietrick. Although the Second Injury Fund is a party to this case, pursuant to the temporary nature of this proceeding, the Fund did not participate at the hearing and the claim against the Second Injury Fund is dismissed. Mr. Christianson requested a fee of 25\% of any benefits awarded.

The parties stipulated that on or about February 6, 2006, Claimant was earning an average weekly wage of $\ 562.94 resulting in applicable rates of compensation of $\ 375.29 for total disability benefits and $\ 365.08 for permanent partial disability benefits. Employer denied this case and has paid no benefits.

The issues for resolution by hearing are whether Claimant gave requisite notice pursuant to $\S 287.420$ RSMo (2005); whether Claimant sustained an occupational disease arising out of and in the course of employment; medical causation; liability of Employer for past medical benefits of \$120,672.99; whether Employer is liable for future medical treatment; and whether Claimant is entitled to temporary total disability benefits from February 2, 2006 to the present.

Claimant is a 24 year old male who last worked for Employer in February 2006. Claimant began working for Employer approximately five to six years ago. Claimant worked as a drywall hanger. His responsibilities included lifting heavy drywall weighing from 95 to 112 pounds. After hanging the drywall, Claimant was required to nail it and screw it into the wall. Claimant normally did from 30 to 35 sheets of drywall a day. If the drywall sheets were 6 to 7 feet or shorter, Claimant would do the entire job by himself. If the sheets were longer, he would get a partner. Installing drywall required Claimant to get into awkward positions. It required squatting and twisting, and lying on his stomach or flat on his back.

Claimant first remembers having back problems approximately three and one-half years ago. It felt like his back was out of alignment, or he had a slightly pinched nerve. Leading up to February 6, 2006, Claimant was having bladder problems. In early February 2006, Claimant first sought treatment with a chiropractor, Dr. Carpenter. Dr. Carpenter called Claimant's doctor who referred him to the emergency room. Claimant reported to the emergency room, and an MRI and CT scan were performed. Claimant was taken off work.

Before Claimant went to Dr. Carpenter, he testified he notified his supervisor, James Patterson, who is also his father. Claimant testified he told his father he was going to see a chiropractor because his back was out of alignment. He testified he made an appointment, then called his father