Allen Alcorn v. Tap Enterprises, Inc.

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-110840

Employee: Allen Alcorn

Employer: Tap Enterprises, Inc.

Insurer: Travelers Insurance

Date of Accident: Alleged April 14, 2006

Place and County of Accident: Alleged Howell County, Missouri

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 September 12, 2007, and awards no compensation in the abovecaptioned case.

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued September 12, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 25th day of July 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Effective August 28, 2005, the legislature changed two portions of the Missouri Workers' Compensation Law applicable to the case at hand. Those provisions read in pertinent part as follows:

Section 287.420. 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, 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.

Section 287.800.1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

The decision in this matter hinges on whether we are to apply these changes retroactively to the facts of this case. Employee began working for employer on January 31, 2004. Employee was young and had not suffered from any substantial back ailments prior to this time. His job for employer entailed lots of repetitive heavy lifting and moving.

Employee began experiencing back pain within weeks after beginning his work for employer. He first sought medical help on approximately February 17, 2004. Employee told the physicians at that time that the pain had been occurring for a couple of weeks. He had "no knowledge of injury to [his] back but has been doing a lot of heavy lifting with his new job as a truck driver" for employer.

As early as May 2004, employee learned from an MRI that his pain was due to herniated disks in his back. Under the new version of $\S 287.420$, employee would have been required to give employer notice of his occupational injury not later than 30 days after receiving this diagnosis. The new law did not exist, though, until August 2005. Thus, the question is whether it should be retroactively applied to employee's claim and, consequently, allowed to extinguish his right to proceed with his claim (since he did not provide timely notice and since the strict construction change would place the burden on employee to show no prejudice to employer).

The general rule is that "[p]rospective application of a statute is presumed unless the legislature evidences a clear intent to apply the amended statute retroactively, or where the statute is procedural in nature." Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo. App. E.D. 2007). Case law shows that the applicable statutory changes are not merely procedural -- they are substantive. Those rights which are substantive and cannot be applied retroactively are generally defined as laws that "take away or impair rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past." Smart v. Mo. State Treasurer, 916 S.W.2d 367, 369 (Mo.App. S.D. 1996) (citations omitted).

As evidenced in the case at hand, employee had already sustained a repetitive motion injury as early as 2004. Under the law in existence at that time, his occupational injury did not have to be reported to employer. See Endicott v. Display Technologies, Inc., 77 S.W.3d 612, 615 (Mo. 2002). The application of amended $\S 287.420$ to this case would require employee to do something (report to employer) he did not know and was not required to do at the time. Thus, it created new obligations and duties. Application of

amended $\S 287.420, as well as \S 287.800 .1$, to this case would cause employee to forfeit a right to claim compensation that he had under the old law. Thus, it took away his established rights. Clearly, then, the change is more than merely procedural and should not be applied retroactively.

I find this case analogous to Great Southern Savings and Loan Association v. Payne, 771 S.W.2d 940 (Mo.App. S.D. 1989). In that case, a couple named Payne had acquired real estate sold by the county collector to pay for delinquent taxes. After acquiring that property at public sale, the law was changed to require such purchasers to send written notice to certain parties within a specified period of time. Failure to do so under the new law resulted in the loss of the purchaser's rights to the property. In ruling that this new law was substantive and could not be applied retroactively, the court stated, "Laws . . . which provide for penalties and forfeitures in case of noncompliance, are always given prospective application. Id. at 943.

Similarly, in the case at hand, employee's failure to comply with the new notice provision resulted in the forfeiture of his rights. Thus, as indicated in the above decision, such law should be given prospective application only.

Under the law that existed as of the time that employee's injuries first arose, employee established that he had a work-related occupational injury and was entitled to compensation. He should not be foreclosed from asserting his rights to compensation because of laws enacted after-the-fact. Since the majority's decision holds otherwise, I must respectfully dissent from that decision.

John J. Hickey, Member

Employee: Allen Alcorn

Injury No. 06-110840

Dependents: N/A

Employer: Tap Enterprises, Inc.

Additional Party: N/A

Insurer: Travelers Insurance

Hearing Date: $\quad 6 / 18 / 07$

Checked by: MEH

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: N/A
5. State location where accident occurred or occupational disease was contracted: N/A

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? N/A

- Did employer receive proper notice? NO

- Did accident or occupational disease arise out of and in the course of the employment? N/A

1. Was claim for compensation filed within time required by Law? N/A

1. Was employer insured by above insurer? YES

1. Describe work employee was doing and how accident occurred or occupational disease contracted: N/A

1. Did accident or occupational disease cause death? NO Date of death? N/A

- Part(s) of body injured by accident or occupational disease: N/A

1. Nature and extent of any permanent disability: N/A

- Compensation paid to-date for temporary disability: 0

1. Value necessary medical aid paid to date by employer/insurer? O

Employee: Allen Alcorn Injury No. 06-110840

- Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: N/A

- Weekly compensation rate: N/A

1. Method wages computation: N/A

1. Amount of compensation payable:

Unpaid medical expenses: 0

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: NONE

Permanent total disability benefits from Second Injury Fund:

weekly differential ( 0 ) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

Total: SEE AWARD

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:

RANDY ALBERHASKY

Employee: Allen Alcorn

Injury No. 06-110840

Dependents: N/A

Employer: Tap Enterprises, Inc.

Additional Party: N/A

Insurer: Travelers Insurance

Hearing Date: $\quad 6 / 18 / 07$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on June 18, 2007, fora temporary hardship hearing. The claimant appeared in person represented by Randy Alberhasky. The employer and insurer appeared represented by Steven Prosperi. Memorandums of law were filed by July 20, 2007.

The parties stipulated to the following facts. On or about April 14, 2006, Tap Enterprises, Inc. was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Travelers Insurance. On the alleged injury date of April 14, 2006, Allen Alcorn was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The parties agree that the employee's contract of employment was made in Missouri and the parties agree to venue in Howell County, Missouri. No temporary disability benefits have been paid to the claimant. The employer and insurer have paid no medical benefits. The attorney fee being sought is 25 %.

1. Whether the claimant sustained an occupational disease which arose out of the course and scope of employment.

1. Whether the claimant gave the employer proper notice.
2. Whether the claimant's Claim for Compensation was filed within the statute of limitations.
3. Whether the occupational disease caused the injuries and disabilities for which benefits are being claimed.
4. Whether the employer is obligated to pay past medical expenses.
5. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
6. What is the proper rate.
7. Any temporary total benefits owed to the claimant.

The main issue in this case is whether the claimant sustained an injury to his back as an occupational disease due to repetitive trauma as the result of heavy lifting at work. Also at an issue is how the new law addressing occupational disease, which went into effect on August 28, 2005, applies to this injury.

The employer does business as Cummings Tools. They are in the business of selling tools by traveling around the United States and setting up daily sales events at different locations. They load the tools into semi-trucks and travel to various locations such as trade shows. They set up displays for one to two days and sell tools. When they arrive at a location, the tools are manually unloaded fr