(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 07-129936
Employee: Richard A. Fuller
Employer: Kone, Inc.
Insurer: Ace American Insurance Co.
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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 28, 2009, and awards no compensation in the above-captioned case.
The award and decision of Administrative Law Judge Robert B. Miner, issued April 28, 2009, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this $18^{\text {th }}$ day of December 2009.
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.
Section 287.420 RSMo states as follows:
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. . . .
It is important to remember that, in this case, employee proved and employer did not dispute that employee suffered a serious injury and disability as the result of a workrelated accident. He continues to work, but suffers from on-going weakness, fatigue, and occasional cramping due to his torn left bicep tendon. Nonetheless, the administrative law judge denied all benefits to employee based solely on his failure to report his October 9, 2007, injury in accordance with the above-cited statute.
Employee was unsophisticated and uninformed (in large part due to employer's failure to properly notify him -- as it was required to under section 287.127.1 RSMo -- of the requirement to give notice within 30 days) about the necessities connected with filing a Workers' Compensation claim. Employee testified credibly that, although he knew he had injured his arm, he believed that it would heal in the course of time. He was still able to continue working and did so. Employee had an old-fashioned and commendable work ethic. He was used to minor injuries and bruising. The discoloration and swelling associated with his injury dissipated after about a week, and employee believed that the other symptoms would also get better over time.
Employee never sought medical attention for his injury. Instead, he mentioned it to his doctor in connection with a routine physical on February 14, 2008. Upon the advice of personnel at his doctor's office, he immediately contacted his supervisor, who directed him towards employer-approved medical treatment, the total cost of which was only $\ 2,863.43. Employee did not even pursue surgery, although it was an option, because of the uncertainty of the outcome and the desire not to miss work.
Under these circumstances, I am persuaded that the administrative law judge applied the provisions of section 287.420 in an unduly draconian fashion. The statute provides an exception from the 30-day notice requirement in the case of an employer that is not prejudiced by the failure to strictly adhere to the notice provisions.
The purpose of giving an employer notice of a potentially work-related accident is to allow the employer the opportunity to timely investigate the accident and to minimize any resulting disability from the accident by providing medical attention. Soos v.
Mallinckrodt Chemical Co., 19 S.W.3d 683, 686 (Mo. App. E.D. 2000) (overturned on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)).
As indicated above, employer did not dispute the fact of employee's October 9, 2007, work injury. The co-worker who was present when employee injured his arm was still working for employer and available for questioning when employee reported his injury. Thus, its investigation was in no way impaired or prejudiced.
Furthermore, employee had not incurred any medical expenses connected to this injury prior to the date he reported the accident to employer. Once reported, employer had full control over the doctors used and the expenses incurred. Thus, employee's delay in no way prejudiced employer's choice of medical treatments.
Finally, employer argued and the administrative law judge held that employer was prejudiced because the delay prevented it from minimizing employee's resulting disability from the accident. The administrative law judge in large part relied on the following single statement set out in Dr. James A. Stuckmeyer's written statement: "Unfortunately, this injury was not attended to immediately . . ."
This statement is ambiguous at best. The best medical evidence indicates that surgical treatment remained an option regardless of any delay in reporting. And nearly two more months expired from the time employee reported the accident to the time he was referred to an orthopedic surgeon (Dr. Parmar). Dr. Parmar ordered physical therapy for employee. Employee participated in ten physical therapy sessions and then returned to Dr. Parmar for a follow-up visit in August 2008. Again, Dr. Parmar offered employee the option of surgery, which he declined. Accordingly, none of the medical records show any indication that employee's initial delay affected his ultimate physical progress. At most, during the time employee delayed, he was simply not improving.
I have given the ambiguous comment from Dr. Stuckmeyer little if any weight. He did not evaluate employee and issue his statement until October 2008, another six months after Dr. Parmar first saw employee.
Consequently, employee has shown that his delay in formally reporting his accident to employer in no way caused it any prejudice. Therefore, the decision of the administrative law judge, affirmed by the Commission majority, wrongly denied employee's claim for compensation. Accordingly, I would reverse the decision of the administrative law judge and award compensation. Thus, I must respectfully dissent from the decision of the Commission majority to deny compensation.