Lenora Washington v. St. Anthony's Medical Center

(Affirming Award of Administrative Law Judge by Separate Opinion)

Injury No.: 07-079817

Employee: Lenora Washington

Employer: St. Anthony's Medical Center

Insurer: Self-insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we affirm the award of the administrative law judge by separate opinion. The award and decision of Administrative Law Judge John A. Tackes, issued July 30, 2010, is attached solely for reference and is not incorporated by this decision.

The seven issues stipulated at the hearing were: (1) whether employee sustained an accident; (2) whether the accident is compensable under Chapter 287; (3) whether the alleged accident arose out of and in the course of employment; (4) notice; (5) medical causation; (6) temporary total disability; and (7) the nature and extent of permanent disability.

The administrative law judge found the following: (1) employee did not provide proper notice to employer of her alleged injury of May 16, 2007, and employer was prejudiced as a result; (2) employee failed to prove she sustained an accident on May 16, 2007; (3) employee failed to meet her burden on the issue of medical causation; and (4) all other issues are moot.

Employee submitted a timely Application for Review with the Commission alleging the administrative law judge erred because: (1) the award is against the weight of the evidence; (2) employee gave both written and oral notice of the injury; (3) there was no prejudice to employer; (4) all of the evidence is that there was an accident; (5) all of the credible medical evidence is that there was a medical causal relationship; (6) certain records do not lend themselves to the employee saying there was no accident; (7) credibility assessments should not have been made adversely to employee because she was a model employee; and (8) the employee testified she reported her injury to the people who were supposed to know, and the employer failed to have those people testify, and thus there is proof of notice.

For the reasons set forth in this award and decision, the Commission affirms the award of the administrative law judge by separate opinion.

Employee previously sustained work injuries on February 21, 1996, March 21, 1998, and January 26, 1999. Employee was familiar with workers' compensation injuries and

knew she had to report any work injury to a supervisor. Employee alleges that on May 16, 2007, while pulling a gurney bed with another nurse, she struck a doorway and felt pain in her neck and right upper extremity. Employee started an incident report but did not finish it. The incident report was ultimately completed on June 22, 2007, with references to a tuberculosis exposure on May 16, 2007, and contains no mention of an injury to employee's neck or right upper extremity on that date. Employee did not request treatment from employer for her neck and right upper extremity complaints. Instead, she sought treatment on her own in November 2007 and eventually underwent a cervical fusion surgery on December 1, 2007.

Employee testified she could not remember ever telling a supervisor that she thought she hurt her neck and right upper extremity on May 16, 2007. Employee testified she told the people who worked at the "ACC desk," but acknowledged that these people are not supervisors. Employer presented employee's supervisor, Katherine Udina, Ms. Udina's supervisor, Ora Wood, and employer's workers' compensation coordinator, Lisa Holzem, who each testified that they were unaware until after employee's surgery of employee's claim that she suffered a work injury to her neck and upper right extremity on May 16, 2007. We find these witnesses credible. We find that employee did not tell a supervisor about her alleged injuries.

Section 287.420 RSMo deals with the notice an injured employee must provide to her employer and 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 a 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). The statute sets forth six requirements: (1) written notice, (2) of the time, (3) place, and (4) nature of the injury, and (5) the name and address of the person injured, (6) given to the employer no later than thirty days after the diagnosis of the condition. *Allcorn v. Tap Enters.*, 277 S.W.3d 823, 828 (Mo. App. 2009).

We conclude that employee did not provide employer with a written notice that meets the requirements of § 287.420 RSMo. An incident report exists, but it contains no mention of any injury to employee's neck or right upper extremity, and it was not completed by employee until more than 30 days had passed from the alleged date of accident. Thus, we proceed to the question whether employee demonstrated that employer was not prejudiced by her failure to provide written notice.

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, 19 S.W.3d at 686 (citations omitted).

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). But we have found that employee did not tell a supervisor about her injuries, and that employer did not have actual knowledge that employee claimed to have sustained injuries to her neck and right upper extremity on May 16, 2007.

Employee points to the evidence that it was not uncommon for employer to get halfcompleted incident reports or occasionally even lose completed reports, arguing that nothing out of the ordinary occurred here and thus employee's failure to provide notice should be excused. We are not persuaded. There are a number of reasons why employer might have occasionally received half-completed reports or lost reports. It appears that employee invites us to assume that employer's workers' compensation procedures were administered in a careless or casual fashion, and thus employee should be excused for her failure to complete the report, but we decline to so speculate, and in any event, we fail to see the connection to the question whether employer was prejudiced given the circumstances of this particular case. Apart from her argument that the incomplete report and her interaction with the people at the ACC desk should constitute actual notice, employee fails to identify any other evidence to show employer was not prejudiced, and we can find no other evidence adduced or supplied by employee that so demonstrates. Accordingly, we will presume that employer was prejudiced.

Employee sought treatment and proceeded to surgery on her own. Employer was deprived of the chance to provide immediate treatment in order to minimize the effects of the work injury, and was also deprived of the opportunity to secure a contemporary evaluation of the nature and extent of the injuries employee suffered in the alleged accident. In a case such as this, where accident is at issue and the parties contest whether employee's injuries resulted from degenerative processes or a traumatic event,

we cannot say that employer was not prejudiced when it was deprived of the opportunity to promptly investigate the circumstances of the alleged event.

Given the foregoing, we conclude that employer was prejudiced by employee's failure to provide written notice.

Based on the foregoing, the Commission concludes that employee did not provide employer with the notice required under $\S 287.420$ RSMo and that employer was prejudiced as a result. Accordingly, employee's claim for benefits is denied. All other issues are moot.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Lenora Washington

Injury No.: 07-079817

Dependents: N/A

Before the

Employer: St. Anthony's Medical Center

Divisions of Workers'

Compensation

Department of Labor and Industrial

Additional Party: $\mathrm{SIF}^{1}$

Relations of Missouri

Jefferson City, Missouri

Insurer: Self Insured

SCO Corporate Claims Management Center

Hearing Date: April 28, 2010

Checked by: JAT

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: May 16, 2007 (alleged)
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Claimant alleges that she felt pain when pulling a bed through a doorway while transporting a patient from his hospital room to the operating room.

1. Did accident or occupational disease cause death? No
2. Part(s) of body allegedly injured by accident or occupational disease: Neck and upper right shoulder alleged.
3. Nature and extent of any permanent disability: N/A
4. Compensation paid to-date for temporary disability: $\ 0.00
5. Value necessary medical aid paid to date by employer/insurer? Unknown ${ }^{2}$

Employee: Lenora Washington Injury No.: 07-079817

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 454.07
3. Weekly compensation rate: $\$ 302.71 / \ 302.71
4. Method wages computation: Stipulation

1. Amount of compensation payable: None

Unpaid medical expenses:

$\ 0.00

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

0 weeks of permanent partial disability from Employer

1. Second Injury Fund liability: None (Dismissed)
2. Future requirements awarded:

None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall