Conservative care but would not authorize an MRI for the knee or back, apparently because the doctor believed this was a workers' compensation case. Dr. Mehra released employee for light duty and provided a return to work note which advised that employee was in need of further treatment. Employee gave the note to Stephanie Endress, employer's office manager and Mr. Norman. Employer again failed to send employee for medical treatment.
Dr. David Volarich performed an independent medical evaluation of employee on August 11, 2009. Dr. Volarich diagnosed lumbar left leg radicular syndrome most consistent with L4-5 herniation and left knee patellofemoral syndrome. Dr. Volarich opined that the prevailing factor causing employee's injuries and medical condition was the fall from the garbage truck on April 1, 2008. Dr. Volarich opined that employee is not at maximum medical improvement, but is in need of future medical treatment as a result of the work injury. Dr. Volarich recommended an EMG nerve study, MRI scans of the left knee and low back, and injections. Since the fall, employee has been unable to work without restrictions. He has only limited ability to sit, stand, kneel, and bend, and has difficulty lifting heavy objects. Employee is unable to do yard work without breaks and even simple household chores take employee twice as long to accomplish.
The parties stipulated that, given the foregoing facts, employee sustained an injury by accident arising out of and in the course of employment. The administrative law judge denied employee's claim, however, on a finding that employee failed to provide proper notice of his injury to employer as required under § 287.420 RSMo. That section provides, in pertinent part, 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.
The purpose of the foregoing 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. *Soos v. Mallinckrodt Chem. Co.*, 19 S.W.3d 683, 686 (Mo. App. 2000), overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 224 (Mo. banc 2003). Because employee did not provide the written notice required by the statute, the question becomes whether employer was prejudiced by failure to receive the notice. I conclude that employer was not prejudiced.
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. *Klopstein v. Schroll House Moving Co.*, 425 S.W.2d 498, 503 (Mo. App. 1968). If the employer does not admit actual knowledge, the issue becomes one of fact. *Id.* 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. Id. at 503-
- See also Gander, 933 S.W.2d at 892.
Soos, 19 S.W.3d at 686.
Employee notified a supervisory employee, Tommy Norman, on April 2, 2008, that he was injured when he fell off the garbage truck. 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 a supervisory employee on April 2, 2008, I find that employer had actual knowledge of employee's work injury.
Because 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, I am convinced that employer failed to meet that burden. Employer had an opportunity to direct employee's medical treatment as early as April 2, 2008, when employee told Mr. Norman that he was hurt and needed to see a doctor. Instead, employee was told it was his own problem. Employer's office manager, Ms. Stephanie Endress, admitted that employer was able to investigate this matter, and that the owners of the company were aware that employee was seeking medical treatment for a potential work injury. Employer was able to interview and depose Marty Long. I conclude that employer has not met its burden of demonstrating that it was hampered in its ability to investigate the incident, or that it was denied an opportunity to minimize employee's injuries. I conclude that employer was not prejudiced by employee's failure to provide written notice under § 287.420.
I proceed to the issue of medical causation. Employer did not present any medical expert testimony; Dr. Volarich is the only doctor to testify in this case. I find Dr. Volarich's opinion credible. I find that the prevailing factor causing employee's low back problems, left leg radicular syndrome, and left knee patellofemoral syndrome, was the work injury of April 1, 2008, when employee fell off the garbage truck. I find that employee is in need of immediate medical treatment in connection with that work injury.
The administrative law judge made findings on the medical causation issue, even though it was technically moot after the administrative law judge determined that the claim was barred by § 287.420. Although the administrative law judge's comments are gratuitous, I note that they are erroneous in several important ways. First, the administrative law judge summarized Dr. Volarich's testimony without making any express determination as to the doctor's credibility. As a result, the administrative law judge failed to make unequivocal, affirmative findings as to pertinent facts. See Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529 (Mo. App. 2008) (reversing a decision of the Commission that failed to make affirmative, unequivocal findings, but instead merely summarized the testimony of witnesses, and then reached a conclusion without indicating what weight or credibility were given to any of the evidence).
The administrative law judge then concluded that the accident of April 1, 2008, was not the prevailing factor causing the work injury, noting that a coworker had seen employee
limping previous to April 1, 2008. The administrative law judge implies that employee's left leg problems predated the date of injury, without any medical evidence to support such a determination. Clearly, the administrative law judge disregarded uncontradicted expert medical evidence and adopted instead a lay opinion on the issue of medical causation. This is error as a matter of law:
The commission may not arbitrarily disregard or ignore competent, substantial and undisputed evidence of witnesses who have not been impeached. In addition, the commission may not base its finding upon conjecture or its own opinion unsupported by sufficient evidence.
Highley v. Von Weise Gear, 247 S.W.3d 52, 57 (Mo. App. 2008) (citation omitted).
The majority has joined in the foregoing legal errors by affirming the award of the administrative law judge.
In sum, I am convinced that employee met his burden of establishing that employer was not prejudiced by his failure to provide timely notice. Additionally, I