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*, 19 S.W.3d at 686 (citations omitted).
The record contains conflicting testimony as to when and how employer acquired actual knowledge of employee's work injury on May 29, 2006.
Employee provided his testimony as to the events following the work accident on May 29, 2006. Employee testified that after hurting his back, he attempted to continue working, but his back hurt too much, so he put his work tools away and called the maintenance shop. Employee explained that his normal supervisor, Cal Hutchings, was not on duty that day because it was a holiday. Employee could not remember whether Steve Tackitt or Cliff Webb was on duty in the maintenance shop that day, but employee informed one of these individuals that he hurt his back while working, and that he was going home. Employee testified that the next day, he visited his own doctor, who provided him with a note excusing him from work. Employee's wife then drove employee over to employer's premises, where she stopped the car at the maintenance shed, went inside, "told Cal," and provided the doctor's note.
Employee testified that he had been injured on the job previously. Employee's course of action in connection with those injuries was to simply tell his boss, who filled out the necessary paperwork and provided it to employee to sign. Employee has a sixth grade education level, attended special education classes while in school, and is unable to read or write at a functional level. Employee explained that he didn't do anything different in regard to the injury on May 29, 2006, than he did for any of his previous work-related injuries.
Employee's wife, Samantha Sell, provided her testimony as to what transpired when she delivered the doctor's note to Cal Hutchings on May 30, 2006. Ms. Sell testified that she informed Mr. Hutchings that employee had been hurt on the job the day before, and that if Mr. Hutchings needed more information, he needed to contact employee. Mr. Hutchings did not ask Ms. Sell any questions about the circumstances of the accident.
Employer presented the testimony of Stephen Tackitt. Mr. Tackitt testified that employee called him in the maintenance shop on May 29, 2006, to state that he was going home. Mr. Tackitt testified that employee did not say anything about his back or hurting himself.
Employer presented the testimony of Cal Hutchings. Mr. Hutchings testified that Ms. Sell did provide him with a doctor's note, although he didn't think it was on May 30, 2006. Mr. Hutchings did not remember Ms. Sell telling him that employee had
Enployee: Eli Sell
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been hurt at work. Mr. Hutchings acknowledged that he did not inquire into the nature of employee's reason for missing work. Mr. Hutchings admitted that he learned that employee was injured at work from another groundskeeper, but could not identify when that was, although Mr. Hutchings believed it was "way later on." Mr. Hutchings also admitted that he was aware of employee's difficulties with reading and writing, and that if someone did not fill out an injury report for employee, it probably would not get done.
We resolve the conflicting testimony of the parties as follows. We find the testimony of employee to be more credible than that of Mr. Tackitt. We find that employee notified the maintenance worker on duty in the shop on May 29, 2006, that he had been injured while working that day. We find the testimony of employee's wife to be more credible than that of Mr. Hutchings. We find that employee's wife informed Mr. Hutchings on May 30, 2006, that employee had been hurt at work, and that Mr. Hutchings should contact employee if he had questions. It is well settled that notice of a potentially compensable injury acquired by a supervisory employee is imputed to the employer. *Hillenburg v. Lester E. Cox Medical Ctr.*, 879 S.W.2d 652, 654-55 (Mo. App. 1994). Because notice was provided to employee's supervisor, Mr. Hutchings, on May 30, 2006, we conclude that employee has presented substantial evidence that employer had actual knowledge of employee's work injury.
Because employee has provided substantial evidence that employer had actual knowledge of employee's work injury, the burden shifts to employer to demonstrate that it was prejudiced by employee's failure to provide written notice of employee's work injury.
After a thorough review of the record, we find no evidence that employer was prejudiced by employee's failure to provide written notice. Employer's witnesses testified as to when and how they became aware that employee sustained a work injury on May 29, 2006, but there is no testimony, nor can we find any other form of evidence in the record, sufficient to demonstrate that employer was hampered in its ability to investigate the incident, or that employer was denied an opportunity to minimize employee's injuries. Absent such evidence, we are unable to find that employer has met its burden of demonstrating that it was prejudiced by employee's failure to provide written notice.
We acknowledge that employee treated with his own doctor initially, but the evidence is uncontested that employee began treating with employer's doctors as early as July 20, 2006. Moreover, Mr. Hutchings had the opportunity to inquire further into the circumstances of employee's injury after May 30, 2006, but according to his own testimony, Mr. Hutchings never asked employee to elaborate on the circumstances of his back injury, even when he sat down with employee to fill out FMLA papers.
Accordingly, we conclude that employer was not prejudiced by employee's failure to provide written notice.