Selina Burgess v. R&T Janitorial

Improvee: Selina Burgess

treatment for her alleged injuries at the Family Care Health Center and St. Louis University Hospital.

Employee testified that the pain she felt after tossing trash bags on November 28 or 29, 2005, was worse than having a baby. Employee also testified that she just took some pain medication she had in her purse and then went on working for an hour, and didn't tell anyone what happened to her that night. Employee testified that she told a supervisor named Ms. Evelyn a couple of weeks after the alleged event that she had hurt herself after she finished doing some trash at work. Employee testified Ms. Evelyn said nothing in response. When asked why, if the pain was more intense than having a baby, employee waited a couple of weeks to tell her supervisor she was hurt, employee answered that it was because she had a lot of other medical issues, and by the time she got around to talking to Ms. Evelyn, a couple of weeks had gone by.

We find employee lacking credibility. We find that employee did not notify a supervisor named Ms. Evelyn of her alleged injuries a couple weeks after November 28 or 29, 2005. We find that employer had no notice that employee was claiming to have been injured at work until March 17, 2006.

Section 287.420 RSMo, deals with the notice an injured employee must give 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 $\S 287.420$ RSMo. It is uncontested that employee did not provide any kind of written notice to employer until March 17, 2006. This is beyond the thirty days provided for in the statute. 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). Employee testified that she told a supervisor named Ms. Evelyn about her injuries a couple of weeks after she sustained them, but we have found employee's testimony lacking credibility on this point, and there is no other evidence that employee told a supervisor about her injuries. We conclude that employee has failed to prove that employer had actual notice, before March 17, 2006, that she claimed to have sustained low back and right leg injuries on or about November 28 or 29, 2005, in the course of performing her work duties. We find no other evidence supplied by employee to demonstrate employer was not prejudiced as a result of her failure to provide written or actual notice to employer until several months after her alleged accident. Accordingly, we will presume employer was prejudiced.

Employee sought treatment on her own until March 17, 2006. Employer was deprived the chance to promptly investigate the accident and provide immediate treatment in order to minimize the effects of the work injury, and was also deprived 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 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.

The award and decision of Administrative Law Judge John A. Tackes, issued November 24, 2010, is attached solely for reference and is not incorporated by this decision.

Given at Jefferson City, State of Missouri, this $\qquad 6^{\text {th }} \qquad$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Selina Burgess

Injury No.: 05-139899

Dependents: N/A

Employer: R\&T Janitorial

Additional Party: Second Injury Fund

Insurer: New Hampshire Ins. Co.

SCO: Chartis Claims Inc.

Hearing Date: August 25, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: November 29, 2005 (alleged)
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Emptying trash into a dumpster (alleged)
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: low back and right leg (alleged)
14. Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}
15. Compensation paid to-date for temporary disability: \ 0.00
16. Value necessary medical aid paid to date by employer/insurer: $\ 0.00

Employee: Selina Burgess

1. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
2. Employee's average weekly wages: $\ 478.11
3. Weekly compensation rate: $\ 318.74
4. Method wages computation: By statute

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

TOTAL:

$\ 0.00

1. 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 be subject to a lien in the amount of $\mathrm{n} / \mathrm{a}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: $\mathrm{n} / \mathrm{a}$

A hearing in this Matter was held in the City of St. Louis at the Division of Workers' Compensation by Administrative Law Judge John A. Tackes. Selina Burgess (Claimant) personally appeared and testified. Claimant was represented by attorney Frank Niesen. R\&T Janitorial (Employer) appeared through counsel, attorney Jul