Christina Alcorn v. Monroe City R-1 School District

judge; therefore, the pertinent facts will merely be summarized below.

Employee worked for employer as a paraprofessional educator. On November 11, 2003, employee was attending an assembly with students when one student had a seizure and fell between the bleachers. Employee testified that when she lifted the unconscious child from the bleachers, she experienced sharp pain in her lower back and it felt like something gave way. Employee testified that the pain continued throughout the day. Employee did not report the incident to supervisor the day it occurred. Employee testified she did not report the incident because she was not aware of how badly she was hurt and was not a tenured employee and fearful of losing her job.

Employee testified the pain in her back stayed constant for the next few months. On March 25, 2004, employee contacted the office of her general practitioner, Dr. Rice, and was prescribed Voltaren. That was the first record of any treatment and employee did not recall any prior treatment. Employee sought treatment from Dr. Rice's office, and saw Nurse Practitioner Daniel, in May 2004. It was noted that employee had low back pain, and was scheduled for an MRI and referred to Columbia Orthopedic Group. In May and June 2004, employee saw Dr. Trecha with Columbia Orthopedic Group, and it was noted that employee was experiencing low back pain, right lower extremity pain, weakness, numbness, and decreased range of motion. Employee was diagnosed with L5-S1 herniated nucleus pulposus to the right. Employee was prescribed Vioxx for pain and received steroid injections.

Employee continued to experience ongoing low back pain and right leg pain with numbness. On November 29, 2004, employee sought a second opinion from Dr. Jolly. Employee had been receiving treatment through her group health insurance. At this time, employer still had not been notified of the incident occurring November 11, 2003. Employee testified that she did not report her November 11, 2003 injury until February 2005. Employee alleges that on February 3 and February 7, 2005, employee aggravated her back at work (Injury No. 05-00967) and employee reported those incidents to employer.

Employee saw Dr. Miles with the Columbia Orthopedic Group on May 12, 2005. Dr. Miles opined that employee was a candidate for disc replacement and fusion. Employee underwent three independent medical examinations, the first with Dr. Jeffries on March 7, 2005. Dr. Jeffries opined the November 11, 2003, incident caused an injury that was work-related and was a substantial factor in her resulting medical condition.

On November 16, 2005, employee saw Dr. Mirkin for an independent medical examination. Dr. Mirkin opined that the November 2003 incident was not the substantial cause for the need for surgery; rather that degenerative disc disease was the substantial cause for the need for treatment. On July 18, 2006, employee saw Dr. Bernardi for an independent medical examination. Dr. Bernardi opined that employee's symptoms were due to degenerative disc disease; and that employee might be a surgical candidate, but did not feel that the surgery would be the result of a work-related event.

Upon careful review of the entire record, the Commission determines and concludes that the evidence supports a finding that employee failed to provide employer written notice within 30 days of her accident; and failed to establish good cause for her failure to provide notice, or that employer was not prejudiced by employee's failure to provide notice.

Section 287.420 RSMo, 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.

Under section 287.420 RSMo, employee must provide written notice to employer within 30 days of the accident or show either that 1) employee had good cause for not providing notice or 2) employer was not prejudiced by employee's failure to provide timely 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. However, the failure to give timely written notice may be excused if...there was good cause for the failure or that the failure did not prejudice the employer.

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. If the employer does not admit actual knowledge, the issue becomes one of fact. If the employee produces substantial evidence that the employer had actual knowledge, the employee thereby makes a prima facie showing of absence of prejudice which shifts the burden of showing prejudice to the employer.

However, when the claimant does not show either written notice or actual knowledge, the burden rests on claimant to supply evidence and obtain the Commission's finding that no prejudice to the employer resulted. 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.

Soos v. Mallinckrodt Chem. Co., 19 S.W.3d 683, 686 (Mo.App. E.D. 2000) (citations omitted).

Employee admits that she failed to provide employer written notice within 30 days of her accident. The administrative law judge noted that employee did not report her injury for a couple of reasons: employee did not know at the time how badly she was injured; and she was not yet a tenured employee so was concerned about losing her job if she reported the injury. However, the administrative law judge did not address whether that amounted to good cause for employee's failure to notify employer of her injury. We find that it does not. There is no evidence supporting that employee would have been discharged or would have suffered repercussions if she reported her injury. In addition, by her own admission, employee's pain remained constant from the time of her alleged injury on November 11, 2003, up and until she reported her injury in February 2005.

The administrative law judge noted that employee testified that she sent medical records to the case manager, assigned to handle the case. The administrative law judge stated:

While Dr. Jolly's records were inexplicably unavailable at the time of the hearing it is certainly reasonable to conclude those records were received by the insurer or their third party administrator and the references to those records indicates the employer had been provided with actual knowledge of the potential need for treatment for an alleged work related injury.

As noted by the administrative law judge, the records from Dr. Jolly were not contained in the record. Although the record may indicate that the records were sent to insurer's third party administrator, it is unknown exactly what was stated in those records to determine whether they would have put employer on notice that employee had incurred a work-related injury. Furthermore, employee saw Dr. Jolly in late 2004, more than a year after her alleged accident. Employee was receiving treatment through her own health insurance group and readily admitted that she had not notified employer of her injury. Even if we conceded employer had actual knowledge upon receiving Dr. Jolly's medical records, employer did not have actual

knowledge of the accident when it occurred, but such knowledge came more than a year later. There is no question that employer did not have actual knowledge of the accident when it occurred. Therefore, employee did not make a prima facie showing of absence of prejudice that would shift the burden to employer to show prejudice.

The administrative law judge goes on to state:

Employer has failed to show prejudice from the failure to report the injury in a timely manner. The employer had ample time to after receiving actual notice to conduct an investigation or inquiry. What little treatment employee has received to date has been of a conservative nature and is consistent with the recommendations of the doctors the employer/insurer has sent the employee to see.

Given that employee did not show that employer had actual knowledge of the accident when it occurred, the burden rests on employee to show that employer was not prejudiced by the failure to receive notice. The administrative law judge wrongly placed the burden on employer to show prejudice. It is not employer's burden to show that employer was prejudiced, but employee must show lack of prejudice to employer.

Employee failed to offer any evidence that employer was not prejudiced by her failure to give timely notice. Employee's decision not to report the accident/injury clearly deprived employer the timely opportunity to investigate the facts surrounding the November 11, 2003 incident, or in the event employee sustained a work-related injury, the ability to provide the employee medical attention in order to minimize any disability. Without evidence showing a lack of prejudice, it is presumed that employer is prejudiced; and therefore, employee's failure t