Sharon Beckton v. AT&T

Employer argues that the administrative law judge improperly resolved the issue of notice under $\S 287.420$ RSMo. That section provides, in pertinent part, as follows:

No proceedings for compensation for any occupational disease or repetitive trauma 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 diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

The foregoing section imposes six requirements on the method and manner of notice employees must provide employers in occupational disease or repetitive trauma cases: (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). Employer argues it was prejudiced because employee failed to satisfy the second and sixth of the foregoing requirements. We reject employer's arguments for the following reasons.

Here, employer argues that the administrative law judge erred in finding the 30-day notice period should run from Dr. Schlafly's diagnosis of work-related carpal tunnel syndrome on October 24, 2008. Employer argues the deadline should instead run from May 5, 2008, because employee "knew in her own mind that she had CTS" on that date and "knew that the only cause in her own mind was her keystroking at work starting in 2005 and increasing for a year before May 2008." In support of these arguments, employer cites Allcorn v. Tap Enters., 277 S.W.3d 823 (Mo. App. 2009). Employer misreads Allcorn.

The Allcorn court held that the 30-day notice period under $\S 287.420$ does not begin to run "until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure." Allcorn, 277 S.W.3d 823 at 829. The Allcorn court found that the date the employee's evaluating physician rendered a causation opinion was the appropriate date to begin the 30-day notice period, even though that opinion was not rendered until several months after the filing of the employee's claim for compensation. Id. at 830. Applying the holding of Allcorn to the case at hand, we find the administrative law judge correctly determined the 30-day notice period to run from October 24, 2008, the date that Dr. Schlafly rendered his opinion that employee's right carpal tunnel syndrome was caused by her work activities. This is because Dr. Schlafly's opinion represents the first time a diagnostician in this case made the requisite causal connection between employee's carpal tunnel syndrome and her work activities for employer.

To the extent employer argues that employee's treating doctors rendered causation opinions sufficient to trigger the notice requirement in May 2008, we are not persuaded. Employer points to the treatment record generated in connection with the nerve

conduction study on May 15, 2008, performed by Dr. Samudrala, in which the doctor notes: "[Employee] does a lot of typing." Employer suggests that stray comments such as these from the treating doctors should have been sufficient to convince employee that her condition was work-related, and argues this triggered the notice requirement. Stated another way, employer is arguing that the notice period began to run as soon as employee "knew in her own mind" that she had carpal tunnel syndrome and that work was the likely cause. In a case involving conflicting medical expert opinions on the issue of medical causation, employer asks us to find that employee's own lay opinion as to whether work caused her condition should provide a sufficient causal connection to trigger the 30-day notice requirement. To adopt this argument would place the burden on employee to determine the cause of her occupational disease. But employee is not a diagnostician, and we find her own thoughts or opinions in May 2008 as to whether her carpal tunnel syndrome was work-related did not trigger the 30-day notice requirement under $\S 287.420$.

The administrative law judge found that employee's written notice via her claim for compensation was deficient because the claim lists May 15, 2008, as the date of accident or occupational disease. Employer argues employee failed to show employer was not prejudiced by this deficiency.

The administrative law judge and employer appear to be under the impression that $\S 287.420$ requires employees to list the "date of onset" or "beginning date of injury" when providing notice to employer of occupational diseases or repetitive motion injuries. We find no such requirement in the statute. Rather, the plain language of $\S 287.420$ requires only that employees provide notice of the "time of the injury." See § 287.420 supra.

Determining the "time of injury" in occupational disease or repetitive motion cases can be complicated where, as here, there is a gradual onset of the claimed injury. Historically, courts have used different touchstones, such as the date a condition becomes compensable or the date a condition first becomes disabling, in order to determine the date of injury in occupational disease cases. See, for example, McGhee v. W.R. Grace \& Co., 312 S.W.3d 447, 452-56 (Mo. App. 2010) (discussing past cases and holding that, for purposes of determining the maximum compensation rate, the date of injury of an occupational disease is the date the employee becomes disabled). The Allcorn court looked at the opinion of the employee's evaluating physician that the employee sustained an occupational disease due to work exposure "through April of 2006," noted the employee's written notice listed the day prior to the first day employee began working for employer, and found that employee's notice was deficient by "one day." Allcorn v. Tap Enters., 277 S.W.3d 823, 830 (Mo. App. 2009). The Allcorn court concluded a prejudice analysis was needed because where the employee's notice was improper with regard to the "time of injury," the employee failed to meet the requirements of the statute. Id. at 830-31.

Here, employee was diagnosed with bilateral carpal tunnel syndrome after an EMG and nerve conduction study on May 15, 2008, but there is no other significance to this date. Dr. Schlafly did not render a causation opinion that specified an exact time of injury, nor did he identify any time period "through" which employee was injured. The evidence shows that

Employee was not performing her normal duties for employer as of May 15, 2008, and so it appears there was no occupational exposure as of that date. Given these considerations, we agree with the administrative law judge that employee's notice is deficient because she did not provide the "time of injury" for purposes of $\S 287.420$ RSMo. It is necessary, therefore, to determine whether employer was prejudiced by employee's failure to provide notice that met with the requirements of $\S 287.420$.

Employee testified that she told a supervisor named Edmund Lowe about her hand complaints in March or April 2008. According to employee, Mr. Lowe initially told her to go to whatever doctor she chose, and then directed her to go to Concentra and see employer's workers' compensation doctors. We find employee credible. We find that employee told her supervisor, Mr. Lowe, about her hand complaints in March or April 2008. Accordingly, we find that employer had actual notice of employee's hand complaints as of March or April 2008. 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).

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.

Soos v. Mallinckrodt Chem. Co., 19 S.W.3d 683, 686 (Mo. App. 2000) (citations omitted).

Because we have determined that employer had actual notice of employee's hand complaints as of March or April 2008, employee has made a prima facie showing of absence of prejudice and the burden shifts to employer to show it was prejudiced. We find no evidence to suggest that employer was prejudiced by failure to receive written notice of the time of employee's injury. This is an occupational disease case alleging a gradual onset of injury, thus there was no accident for employer to investigate nor any witnesses to interview before memories faded. We note that employer had employee examined by its physicians at Concentra on June 5