Dennis McBee v. WCA Waste Management Co.

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 09-101617

Employee: Dennis McBee

Employer: WCA Waste Management Co.

Insurer: New Hampshire Insurance Co.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 22, 2011, as supplemented herein.

We agree with the administrative law judge that employee's claim is not barred by his failure to provide written notice meeting the requirements of $\S 287.420$ RSMo. The administrative law judge, however, found that because employer received actual notice of employee's injury, employer "is prohibited from raising failure to receive written notice of claimant's injury as a defense." Award, page 5. Because nothing in the statute suggests that employer is "prohibited" from raising notice as a defense where it receives actual notice, we write this supplemental opinion to clear up any confusion and to apply the appropriate analysis under $\S 287.420$, which 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 an alleged workplace accident and also to provide the employee with timely medical attention in order to minimize the effects of a work injury. 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). Employer was entitled to raise notice as a defense, and did so. As a result, employee was required to prove either (1) that he provided a written notice meeting all the requirements of $\S 287.420$ to the employer no later than 30 days after the accident; or (2) that the employer was not prejudiced by the employee's failure to provide timely notice. If employee fails to prove one or the other of these circumstances, his claim is barred. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 510 (Mo. App. 2011).

Here, employee does not even allege that he provided written notice to employer that met each of the requirements under $\S 287.420$. Thus, the question is whether employee demonstrated that employer was not prejudiced by his failure to provide statutory notice of his right shoulder injury. The administrative law judge found that employee provided actual notice to employer when he told his supervisor, Ronnie Schenk, on May 22, 2009, that he had been injured at work that day. The administrative law judge heard the testimony from both employee and Mr. Schenk and found employee to be more credible on the question whether employee provided notice to Mr. Schenk. The administrative law judge explained his reason for believing employee's testimony over that provided by Mr. Schenk.

After carefully reviewing the testimony presented at the hearing and also the arguments of the parties in their briefs and oral arguments before this Commission, we discern no compelling basis for overturning the credibility determination of the administrative law judge, who, having viewed the live testimony from both employee and Mr. Schenk, was probably in a better position to make such findings. We agree with the administrative law judge that employee is more credible than Mr. Schenk. Accordingly, we affirm and adopt the administrative law judge's finding that employee provided actual notice of his right shoulder injury to Mr. Schenk on May 22, 2009, when, at the end of his shift that day, he went inside the office, told Mr. Schenk that he'd hurt his right shoulder, and even took off his shirt to show Mr. Schenk his injury.

Mr. Schenk, as we have mentioned, was employee's supervisor. As a result, Mr. Schenk's actual notice of employee's injury is imputed to employer. Sell, 333 S.W.3d at 510. Because employee provided actual notice to employer, the burden shifts to employer to demonstrate it was prejudiced by employee's failure to provide statutory notice. See Sell at 511: "[T]he burden of proving Employer's lack of prejudice in not receiving written notice rested on the Claimant. Once Claimant presented substantial evidence that Employer had actual notice of the relevant injury, however, the burden of showing prejudice then shifted to Employer." Thus, we see that under an appropriate § 287.420 analysis, employer is not "prohibited" from raising notice as a defense, but employer does have the burden of proving that it was prejudiced where it has actual notice of employee's injuries.

We find no evidence on the record to prove-let alone suggest-that employer was prejudiced by employee's failure to provide notice in the form required by statute. Mr. Schenk (and thus, employer) was aware of employee's injury the same day it occurred. Employer has failed to explain why, having received such notice, it was nevertheless disadvantaged by the lack of written notice meeting the requirements of $\S 287.420$ in its ability to either investigate the circumstances of the injury or to minimize its effects.

We note that each of employer's arguments are premised on the assumption that it did not have actual notice of employee's injury the same day it occurred. Because we have found otherwise, employer's arguments are unavailing. For example, employer argues that it was prejudiced because employee worked for months after his injury emptying trash cans and that this arguably made his shoulder worse-but employer ignores that this effectively occurred with its consent. After all, employer (through Mr. Schenk) knew about employee's untreated right shoulder injury when it sent him out to work his full duties after May 22, 2009. Employer also argues it was unable to investigate the injury,

but again, this argument ignores the fact of actual notice and that nothing kept employer from investigating the incident as soon as May 22, 2009, at the end of employee's shift when employee showed Mr. Schenk his injury.

Ultimately, we conclude that employer was not prejudiced by employee's failure to provide written notice meeting the requirements of § 287.420 RSMo. Accordingly, employee's claim is not barred under that section.

We conclude that employee's claim for compensation is not barred by the notice requirement of § 287.420 RSMo. The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued April 22, 2011, is affirmed and is hereby attached and incorporated to the extent it is not inconsistent with this supplemental opinion.

With regard to the administrative law judge's allowance of an attorney's fee herein, we note that in a filing with this Commission dated August 15, 2011, Stephen W. Holaday withdrew as employee's attorney and agreed to waive his right to a lien for any attorney fee for legal services rendered to employee in this matter. Accordingly, we do not affirm the administrative law judge's allowance of an attorney's fee to (or the attendant lien in favor of) Mr. Holaday.

Any past due compensation shall bear interest as provided by law.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

Given at Jefferson City, State of Missouri, this 14th day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I write separately to disclose the fact that I did not participate in the September 28, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

Employee: Dennis McBee

Injury No. 09-101617

Employer: WCA Waste Management Co.

Additional Party:

Insurer: New Hampshire Insurance Co.

Hearing Date: March 29, 2011

Checked by: NGA

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: May 22, 2009.
5. State location where accident occurred or occupational disease was contracted: Livingston County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
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 was a trash truck operator and injured his right shoulder lifting a toilet that had water in it.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right shoulder.
14. Compensation paid to date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer? None.
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages:
4. Weekly compensation rate: $410.34 / 410.34$
5. Method wages computation: By stipulation.

1. Amount of compensation payable:

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

TOTAL: None.

Each of said payments to begin May 23, 2009 and be subject to modification and review as provided by law.

This Award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of $\mathbf{2 5 \%}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Stephen W. Holaday. The employer is hereby ordered and directed to provide claimant with such medical treatment including surgery to his right shoulder as may be reasonable and necessary to cure and relieve the claimant from the condition caused by claimant's accident on May 22, 2009.

Employee: Dennis McBee

Injury No. 09-101617

Employer: WCA Waste Management Co.

Additional Party:

Insurer: New Hampshire Insurance Co.

Hearing Date: March 29, 2011

Checked by: NGA

Prior to presenting evidence, the parties stipulated that the issues to be determined by this hearing are:

1. Did the claimant on May 22, 2009 sustain an injury by accident arising out of and in the course of employment.
2. Is the claimant barred from recovery by his failure to provide the employer with timely written notice of his alleged injury as provided by Section 287.420 RSMo.
3. Liability of the employer for medical aid.
4. Liability of employer for claimant's expenses.

The parties agreed that on May 22, 2009, Dennis McBee was an employee of WCA Waste Management Co. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law and was fully insured by New Hampshire Insurance Co.

The parties also agreed that the claimant had filed a timely Claim for Compensation. The correct rate of compensation is $\ 410.34 per week for both temporary total disability and permanent partial disability. No medical aid or compensation has been provided. The claimant is not requesting payment for either partial temporary total disability or medical aid.

The claimant testified in person. He is 55 years old. He commenced his employment with Waste Corporation of America in February of 2009. He was a route driver. He would drive a trash truck, get out of the truck to pick up trash; load the truck; and get back in and drive to the next stop.

His supervisor was Ronnie Schenk. Mr. Schenk also trained the claimant. He rode with the claimant in the employer large compactor truck for the claimant's first two weeks of work.

Mr. McBee testified that on May 22, 2009, while working, he attempted to pick up a toilet stool and put into his trash compactor truck. The stool had water in it. The stool was heavier than he thought. He felt pain in his right shoulder and his right shoulder popped.

He continued to finish his route and returned to the office. He reported his injury to his supervisor Ronnie Schenk.

At this time, the claimant was still a probationary employee of Waste Corporation of America. Mr. McBee said that when he told Mr. Schenk about his injury, Mr. Schenk responded by giving his opinion that if the claimant advised Waste Corporation of his injury, the claimant would be fired.

The claimant said he needed his job and did not file a report of injury on the advice of Mr. Schenk. He continued to work but was limited in his ability to use his right arm. He also wore a brace on this right shoulder which was visible because he wore short sleeve shirts and it was in the summer. The claimant said he continued to keep Mr. Schenk advised of his condition.

The claimant did not seek medical treatment until July 2, 2009, when he went to Remingius Okea, M.D. in Trenton. He gave Dr. Okea a history that was consistent with his testimony.

The claimant then sought medical treatment with the V.A. where he could receive it for free. The V.A. scheduled a MRI to be performed in Kansas City on August 7, 2009.

Mr. McBee said he advised Mr. Schenk of his scheduled MRI appointment in August 2009. Mr. Schenk then told the claimant to fill out an accident report showing the accident had occurred on that date, August 6, 2009. Mr. McBee said he complied and completed a Report of Injury indicating his accident on August 6, 2009 when all parties knew it occurred on May 22, 2009.

Mr. McBee had the MRI performed. The MRI indicated: 1. High-grade tear involving the rotator cuff; 2. Suspect posterior superior labal tear; 3. Tenosynovitis of the biceps tendon; 4. Marked AC joint arthritis; 5. Subacromial spur formation; 6. Subacromial and posterior humeral cortical changes as atypical and appear erosive in nature.

Ronnie Schenk testified in person. He testified that he had been fired by WCA Waste Management Co because he had been accused of taking property and money that belonged to the employer.

Mr. Schenk said that he did not remember being told of or was aware of any injury to the claimant in May of 2009. He did not remember any conversations about the claimant being fired for having an injury in his probationary period. He also denied telling the claimant to fill out an accident report with the wrong date.

Dr. Corey A. Trease, M.D. testified by deposition taken on December 8, 2010 and admitted into evidence an Employer Exhibit \#4. All objections thereto are overruled.

Dr. Trease first saw the claimant on October 30, 2009. He said the claimant had similar complaints to both shoulders. He operated on the left and this has been paid for by the employer. He said the claimant needs the same type of surgery to repair his right shoulder arm as he performed on the left shoulder.

Dr. John A. Pazell examined the claimant on October 6, 2010. He found the claimant had a rotator cuff tear of the right shoulder with rupture to bicep muscle with impingement. He said the claimant should have his right shoulder arthroscoped and his rotator cuff repaired and his impingement treated.

The employer argues that it was not provided notice of claimant's injury. If one would believe the testimony of Mr. Schenk, then this would be true.

The issue is to believe either Mr. Schenk or Mr. McBee. If the claimant had reported his injury on May 22, 2009, then Mr. Schenk would have to prepare reports and set up a drug and alcohol test for the claimant. Mr. Schenk appeared as a person who would not care for paper work. I believe this would have caused him to advise the claimant not to file an injury report. It might have also been the truth that the claimant would have been fired and he would have to spend 2 weeks training someone else. I also believe Mr. Schenk knew he would be in trouble for failure to report a May 22 injury.

It is important to note that the claimant had reported his injury to a doctor as early as July 2, 2009. There is no reason that he would give an August 6 date of injury when he already had an MRI scheduled the next day. I believe the testimony of Mr. McBee over that of Mr. Schenk.

I find and believe from the evidence that on May 22, 2009 the claimant sustained an injury to his right shoulder arising out of and in the course of his employment. I find the employer by its agent Ronnie Schenk did, in fact, have actual knowledge of claimant's injury and is prohibited from raising failure to receive written notice of claimant's injury as a defense.

The employer is ordered to provide such medical treatment including surgery to claimant's right shoulder as may be reasonable and necessary to cure and relieve the claimant's condition caused by his injury of May 22, 2009.

There was no evidence that the employer operated improperly in defending this claim. The claimant's request for costs is denied.

The award is only temporary or partial, is subject to further order, and the proceedings are hereby continued until a final award can be made.

This award is subject to a lien in the amount of 25 % of this award in favor of Stephen W. Holaday for necessary legal services provided claimant.

Date: April 22, 2011

Made by: /s/ Nelson G. Allen

Nelson G. Allen,

Chief Administrative Law Judge

Division of Workers' Compensation

This Award is dated and attested to this $\underline{22 n d}$ day of April, 2011