Employee's claim is not barred by § 287.420 RSMo
Employer argues that the administrative law judge improperly concluded that employee provided notice of his work injury to the 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). By operation of the foregoing section, employee was required to provide written notice to the employer within 30 days of the accident, or show that the employer was not prejudiced by the employee's failure to provide timely notice.
The administrative law judge found that employee provided notice to employer "as required by statute." This finding is not supported by the record. To the contrary, it is effectively undisputed ${ }^{1}$ that employee did not provide a written notice to employer that met each of the criteria of $\S 287.420$ RSMo. See Allcorn v. Tap Enters., 277 S.W.3d 823, 830 (Mo. App. 2009). The administrative law judge did make certain findings that are relevant to the question whether employer was prejudiced by employee's failure to provide notice in the form required by statute, but did not clearly apply the appropriate burden-shifting analysis.
We find that employee failed to provide written notice to employer as required under $\S 287.420$. Thus, the question is whether employee demonstrated that employer was not prejudiced by his failure to provide statutory notice. In order to answer this question, we first examine the record to determine whether employee has provided substantial evidence that employer had actual knowledge of the accident.
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).
Employee testified as follows: Employee talked to Danny Boyle, his supervisor and employer's owner, on the morning of October 3, 2007, two days after the accident, and told him he hurt his back. On October 6, 2007, employee called Mr. Boyle to ask off work, citing back pain. Employee was still waiting at that point to see whether he had seriously injured his back or just strained it. Employee's back pain got worse but employee tried to go back to work. On October 12, 2007, employee was on the jobsite when his back began to hurt so bad that all he could do was go down his ladder and get in his work truck. Employee sought medical treatment. On October 18, 2007, employee learned from Dr. Drisko that he had a herniated disk; employee called Mr. Boyle that same day to report the diagnosis of his work injury and to ask for medical treatment from employer.
[^0]
[^0]: ${ }^{1}$ Employee appears to ignore the statutory requirement of written notice and argues that our inquiry should end, like that of the administrative law judge, with a finding that employee delivered actual notice to employer. If that were the appropriate analysis under the statute, we would have no reason to issue this supplemental opinion. In any case, employee directs us to no evidence that would show employee did provide a written notice that met all the requirements of $\S 287.420$, under a strict construction of that section.
Employee's testimony was detailed, sequential as to dates and events, and easy to follow. We note that Mr. Boyle testified he had no reason to dispute that he spoke to employee on the morning of October 3, 2007. We find employee credible as to the version of events set forth above. We find that employee told Mr. Boyle about his back injury on October 3, 2007, and again on October 18, 2007, after receiving the diagnosis from Dr. Drisko. 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 employee provided actual notice of his back injury to Mr. Boyle on October 3, 2007, and again on October 18, 2007, we conclude that employer had actual knowledge of employee's work injury. Accordingly, the burden shifts to employer to demonstrate it was prejudiced by employee's failure to provide statutory notice.
We find no evidence to suggest employer was prejudiced by employee's failure to provide notice in the form required by statute. Mr. Boyle was aware of employee's back problems only two days after the accident, and employee kept him informed as his condition deteriorated in subsequent days. As a result of this clear and ongoing communication between employee and Mr. Boyle, employer had employee examined by its treating doctors at Concentra on October 19, 2007, only eighteen days after the accident. Employer was thereby able to minimize the impact of employee's injuries and to have him evaluated by its physicians. We are not persuaded that employer was prejudiced by any of the confusion over the location that employee was working when he hurt his back. Even if all parties had understood from the beginning that the injury occurred on the Federal Reserve job, there were no witnesses to interview regarding the accident because Jeremy Reno was working on a different part of the building and did not witness employee carrying the felt roll up the ladder. More importantly, Mr. Boyle acknowledged that it goes with the territory in roofing to have days when an employee thinks he tweaked his back and that it is not abnormal for employees to assume such routine aches and pains will get better on their own, and that he has no reason to think employee is lying when employee says he hurt himself carrying something heavy up a ladder. Especially given that Mr. Boyle feels he has no reason to doubt employee's version of the accident, we cannot say employer was prejudiced by any confusion over the exact location where employee was injured.
Accordingly