Kris Robins v. Tractor Supply Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 18, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued January 18, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 1st day of July 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

Employee: Kris Robins

Injury No. 05-141592

Dependents:

Employer: Tractor Supply Company

Additional Party:

Insurer: Hartford Insurance Company

Hearing Date: November 27, 2007

Checked by: RJD/cs

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? No.
4. Date of accident or onset of occupational disease: Alleged to be October 20, 2005.
5. State location where accident occurred or occupational disease was contracted: Alleged to be Kirksville, * Adair County, Missouri.
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? No.
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: $\mathrm{N} / \mathrm{a}$.
12. Did accident or occupational disease cause death? N/a. Date of death? $\mathrm{N} / \mathrm{a}$.

1. Part(s) of body injured by accident or occupational disease: N/a.

- Nature and extent of any permanent disability: N/a.

1. Compensation paid to-date for temporary disability: None.
2. Value necessary medical aid paid to date by employer/insurer? None.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wages: Sufficient for maximum compensation rate.
5. Weekly compensation rate: Maximum.

- Method wages computation: By stipulation.

COMPENSATION PAYABLE

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/a.

Employee: Kris Robins

Injury No: 05-141592

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Tractor Supply Company

Additional Party

Insurer: Hartford Insurance Company

Checked by: RJD/cs

An evidentiary hearing was held in this case on November 27, 2007 in Kirksville. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on December 28, 2005. The hearing was held to determine the following issues:

- Whether Claimant, Kris Robins, sustained an accident and/or an occupational disease arising out of and in the course of his employment with Tractor Supply Company on or about October 20, 2005;

- Whether the work-related accident and/or occupational disease is the cause of any of the injuries or conditions alleged by Claimant;

- Whether the notice requirement of Section 287.420, RSMo, is a bar to Claimant's Claim for Compensation herein;

- The nature and extent of Claimant's permanent partial disability, if any; and

- Whether Employer and Insurer shall be required to reimburse Claimant for medical treatment he has incurred.

The parties stipulated to the following:

- That the Missouri Division of Workers Compensation has jurisdiction over this case;

- That venue is proper in Adair County;

- That the claim for compensation was filed within the time allowed by the statute of limitations;

- That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;

- That Tractor Supply Company was fully insured for Missouri Workers' Compensation purposes by Hartford Insurance Company at all relevant times; and

- That Employer and Insurer have paid no benefits under Chapter 287, RSMo.

The evidence consisted of the testimony of Claimant, Kris Robins; the testimony of Sheryl Phillips; the deposition testimony of Peggy Dennis; the deposition testimony of Shatika Ruiz; medical records; medical bills; and medical reports.

Based upon the evidence adduced, I find the following facts:

- Kris Robins ("Claimant") was born on November 18, 1951 and is not currently employed;

- For approximately five years, including most of calendar year 2005, Claimant worked for Tractor Supply Company ("Employer") as manager of Employer's store in Kirksville, Missouri;

- In his capacity as manager, Claimant worked as a cashier, stocked shelves, was responsible for inventory, and supervised thirteen or fourteen employees;

- Claimant's supervisor was Derek Ford, who worked out of the Kansas City area;

- Prior to October 2005, Claimant had requested and received two medical leaves of absence from Employer during calendar year 2005;

- The first medical leave of absence began on March 29, 2005 and ended April 20, 2005, and was requested for "cervical disc disease - left arm numb";

- The second medical leave of absence began May 12, 2005 and ended July 28, 2005;

- According to Claimant's testimony the second medical leave of absence was for cervical problems which required a cervical discectomy and fusion in early July 2005;

- Beginning July 29, 2005, Claimant was working under restrictions from the neck surgery;

- On June 23, 2006, Claimant filed a Claim for Compensation herein, alleging an accident or occupational disease on October 20, 2005, further alleging "bilateral carpal tunnel affecting both arms and wrist (sic); neck", and describing how the injury occurred as follows: "After returning to work follwoing (sic) surgical procedure for a prior neck injury and while still on lifting restriction, Claimant was ordered by Tractor Supply's district manager to clean out one of the store's lozier room (sic). While performing the task, Claimant injured his neck lifting an item. Subsequent testing revealed pre-existing carpal tunnel inpingement (sic) caused by work related repetive (sic) motion."

- Claimant testified that he was injured on October 23, 2005 (not on October 20, 2005 as stated in the Claim for Compensation) when pulling down some high shelves from the wall when he felt immediate pain in his neck, causing him to fall to the floor; Claimant testified that after lying on the floor for about five minutes, he went into his office, called Shatika in Employer's HR department, told Shatika that he was hurt and going to the doctor, and went to the emergency room at Northeast Regional Medical Center;

- October 23, 2005 was a Sunday;

- A review of the extensive medical records from Northeast Regional Medical Center do not show an emergency room visit on October 20, 2005 or on October 23, 2005; the only October 2005 record being October 5, 2005;

- A review of the medical bills submitted do not show any services billed for October 20, 2005 or October 23, 2005; the only October 2005 services billed being for services of October 5, 2005;

- Claimant requested and received a medical leave of absence from Employer beginning October 21, 2005; the reasons for the medical leave of absence were "COPD-Hypoxemia, shoulder pain (worsening), back of neck pain (worsening) and (left) arm pain (worsening); that leave of absence extended through December 30, 2005;

- Claimant has not returned to work for Employer, and Claimant testified that he has not worked at all since he last worked for Employer;

- Shatika Ruiz was a benefits assistant in Employer's home office in Brentwood, Tennessee in 2005; Ms. Ruiz testified that Claimant called her on October 20, 2005 requesting a medical leave of absence for breathing problems; Ms. Ruiz further testified that Claimant did not notify her of any work related injury during that telephone call;

- Claimant saw his neck surgeon, Dr. Thomas Highland, on November 22, 2005, complaining of neck pain, swelling in his neck and across the shoulders, and numbness in his hands. There is no mention in Dr. Highland's notes of any new injury;

- On December 12, 2005, nerve conduction studies were performed which showed moderate bilateral carpal tunnel syndrome;

- Also on December 12, 2005, a cervical MRI was performed which showed a central bulging disc at C34 ;

- On December 5, 2006, Claimant was seen by Dr. James Eckenrode, a hand surgeon. A portion of Dr. Eckenrode's note from that visit states: "I told him that I do not feel his carpal tunnel syndrome came from any sort of a fall and certainly if he's doing a lot of repetitive tasks at work, his work could be a contributing factor but the fact that he's gotten significantly worse over the last year while not working makes me think it's certainly not the prevailing factor in the development of his carpal tunnel syndrome."

There is certainly a question as to whether Claimant sustained an accidental injury to his neck on October 20 (or 23), 2005. There are inconsistencies in the evidence that bring the occurrence of such injury into question. There is also a question as to whether Claimant's work for Employer was the prevailing factor in the cause of his bi-lateral carpal tunnel syndrome. Nevertheless, it is not necessary for me to decide these issues, as I believe Claimant's Claim for Compensation should be denied, in full, for failure to comply with the notice provision of Section 287.420. That section reads:

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. No proceedings for compensation for any occupational disease or repetitive trauma 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 diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

Employer-Insurer's ANSWER TO CLAIM FOR COMPENSATION states, in part: "Employer and Insurer deny timely notice and assert prejudice as a result thereof". Thus, the issue of notice has been properly raised as an affirmative defense.

Claimant admits that he has not complied with the written notice requirement. Claimant testified that, before he left the Employer's premises on October 20 (or 23), 2005, he instructed his assistant manager, Marcia, to fill out an accident report. No accident report was ever filled out by anyone. Claimant also testified that he called Shatika on October 23, 2005 and told her about the work-related injury. It is clear that Claimant did NOT call Shatika on October 23, 2005, a Sunday. It is also clear from Claimant's requesting and receiving a medical leave of absence beginning October 21, 2005, that Claimant was not even working on October 23, 2005. What is clear is that Claimant called Shatika Ruiz on October 20, 2005 about a medical leave of absence. I find that Claimant did not discuss any work related injury with Ms. Ruiz during the October 20, 2005 phone conversation.

Claimant's claim for compensation is barred by his failure to comply with the notice requirement "unless the employer was not prejudiced by failure to receive the notice."

I note that Section 287.420 was substantially amended in 2005. The prior version of that section contained the following clause: "unless the division or the commission finds that there was good cause for failure to give the notice". The current version of Section 287.420, which applies to this case, does not contain this language. Thus any suggestion by Claimant that he had "good cause for failure to give the notice" (for example, that he refrained from giving notice because he was convinced that "Marcia" had already filed an accident report) is irrelevant.

The Court of Appeals, in Pursifull v. Braun Plastering \& Drywall, 233 S.W.3d 219 (Mo. App. W.D. 2007), stated the following at page 223:

A claimant may demonstrate lack of prejudice where evidence of actual notice was uncontradicted, admitted by the employer, or accepted as true by the fact-finder. If, however, the employee cannot show either written notice or actual knowledge, the employee bears the burden to show and obtain the Commission's finding that no prejudice to the employer resulted. Where the employee fails to adduce evidence of lack of prejudice, the court will presume that the employer was prejudiced by the lack of notice because it was not able to make a timely investigation. In order to determine whether an employer is prejudiced by failure to provide any notice of an accident, the Commission must hear evidence on the issue and the employee bears the burden of proof of lack of prejudice.

There was no evidence of actual notice in this case. There was clearly no written notice, and the only other suggestion of that Employer had actual knowledge was the telephone call to Shatika Ruiz, which was for the purpose of requesting a medical leave of absence, and NOT to report a work-related injury. There was never even a suggestion that Employer-Insurer had any notice (written or otherwise) or actual knowledge regarding the occupational disease (bi-lateral carpal tunnel syndrome) which was diagnosed on December 12, 2005. The only notice Employer ever received was the Claim for Compensation, which was filed on June 23, 2006. Claimant has failed to adduce evidence of lack of prejudice, and I therefore must assume that the employer was prejudiced by the lack of notice because Employer was not able to make a timely investigation.

I make the following rulings of law:

- Claimant did not comply with the written notice requirement of Section 287.420, RSMo;

- Neither Employer nor Insurer had notice of, or actual knowledge of any alleged work related injuries;

- Claimant has failed to adduce evidence of lack of prejudice for failure to provide the required notice; and

- Employer was prejudiced by the lack of notice because Employer was not able to make a timely investigation.

Based upon the RULINGS OF LAW, Claimant's Claim for Compensation is denied in full. All other issues