Terry Fairfield v. Ford Motor Company

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 04-149102

Employee: Terry Fairfield

Employer: Ford Motor Company

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ) dated November 8, 2010.

The ALJ found that employee filed a timely claim for compensation in accordance with $\S 287.430$ RSMo. The ALJ further found that employee sustained an injury by accident arising out of and in the course of his employment on April 13, 2004, and that employer had actual notice of the injury within 30 days of its occurrence.

With regard to the nature and extent of permanent disability, the ALJ found that employee suffered 15 % permanent partial disability of the body as a whole as a result of the April 13, 2004, work injury. The ALJ found that this 15\% permanent partial disability combined with employee's preexisting disabilities to render him permanently and totally disabled.

The ALJ awarded employee future medical care, but denied employee's claim for past medical expenses.

Employer and the Second Injury Fund appealed to the Commission and allege, among other things, that the ALJ erred in finding that employee filed a timely claim for compensation.

Employee had two claims pending in 2010 when the parties conducted the Final Hearing for Injury No. 04-149102. The first injury occurred in 2002 and the second injury occurred in 2004. Both of the injuries were to employee's low back.

On March 21, 2002, employee sustained an injury to his low back while putting away stock at the end of his shift. He felt a "pop" in his low back when he was coming up from bending to get stock off a skid. Shortly after receiving notice of the March 2002 injury, employer authorized Dr. Stephen Reintjes, a neurosurgeon, to treat employee.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2000 unless otherwise indicated.

Dr. Reintjes diagnosed a right L5-S1 disc herniation and performed two surgeries, the first in April 2002 and the second in July 2002.

After the two surgeries employee continued to complain of pain in his low back. Dr. Reintjes recommended that employee obtain a second opinion. On December 23, 2002, employee saw Dr. Geoffrey Blatt for another opinion. Dr. Blatt diagnosed employee with disc collapse at L5-S1 and recommended a fusion of the L5-S1 level. Dr. Blatt performed an L5-S1 fusion with a right hip bone harvest on April 10, 2003.

On January 5, 2004, employee was seen by Dr. Blatt in follow-up. Dr. Blatt noted that employee still had discomfort in his back with lifting but that he was much better than he was pre-operatively. Dr. Blatt noted that employee wanted to return to his regular duties. Dr. Blatt agreed that he should return to work, but suggested that he limit his repetitive bending to prevent additional problems in the future. Dr. Blatt released employee from his care, noting that employee could return to treat for the March 2002 injury on an as needed basis. Dr. Blatt imposed permanent work restrictions to avoid lifting, pushing, or pulling more than 20 pounds, and to avoid repetitive bending.

On January 29, 2004, employee saw Dr. Brent Koprivica for an independent medical evaluation. Dr. Koprivica believed employee was at maximum medical improvement and assessed employee as having sustained 50\% permanent partial disability as a result of the March 21, 2002, accident.

Employer authorized and paid for all of employee's treatment referable to the March 21, 2002, injury.

Employee alleges that on April 13, 2004, ${ }^{2}$ he sustained a new injury to his low back. Employee went to employer's on-site medical facility on that date and stated that he felt a pull in his back while lifting a skid. A nurse at the plant assessed employee as having an "acute exacerbation" of chronic lumbar pain and sent him to one of the physicians at the plant medical facility.

Employee never reported the April 13, 2004, event to the claims personnel in employer's workers' compensation office located inside the plant. Employee claims that he did not know he was supposed to report the injury to the workers' compensation office despite the fact that he reported his March 2002 injury to the personnel in that office. Employee testified that he thought the plant medical personnel would report the April 13, 2004, injury to the workers' compensation office for him.

Employer admitted during the hearing that employee sustained an accident involving his low back on April 13, 2004, while in the course and scope of his employment.

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[^0]: ${ }^{2}$ We note that the records contain an inconsistency with regard to the date of this alleged injury. Some of the records list April 6, 2004, as the date of injury and some of the records list April 13, 2004, as the date of injury. We find that the majority of the records indicate that the injury occurred on April 13, 2004, and, therefore, we have used that date throughout this final award.

Dr. Blatt examined employee on April 15, 2004. Employee testified that prior to the April 13, 2004, incident he had already scheduled an appointment with Dr. Blatt for April $15^{\text {th }}$ to discuss ongoing concerns with respect to the March 21, 2002, injury.

Dr. Blatt stated in his April 15, 2004, note that employee had scheduled the appointment about a month prior to the visit because he was having some intermittent right leg discomfort and low back pain. In his April 15, 2004, note, Dr. Blatt recorded that on the prior Tuesday employee was "pulling a skid and had increase in his low back pain...." Dr. Blatt was concerned employee might have re-injured the fusion site or sustained a new injury. He ordered an MRI to determine the precise status of employee's low back.

Dr. Blatt saw employee again on June 10, 2005. He wrote that employee was in for updated work restrictions. There is no evidence that employer authorized the June 10, 2005, visit or paid for it. The $\ 67.00 charge for the visit was filed with both employee's group carrier (Blue Cross Blue Shield) and with the workers' compensation carrier. However, employee paid the $\ 67.00 bill himself.

Employer's workers' compensation plant representative, JoAnn Rickner, testified at the hearing that the printout from employer's workers' compensation system shows payments made for employee's March 21, 2002, injury. Ms. Rickner stated that the last workers' compensation benefit employer paid with respect to employee was an office visit with Dr. Blatt on September 20, 2004. However, said printout does show that employer paid a $\ 75.00 charge to Dr. Blatt on July 7, 2005, for a disability rating Dr. Blatt provided on that day for the 2002 injury. The rating stated that employee sustained 10\% permanent impairment solely as a result of the March 21, 2002, accident. Dr. Blatt mentioned the April 13, 2004, injury, but did not provide an opinion as to permanent disability related to said injury.

Dr. Blatt testified that he never tried to treat another injury of employee's other than the March 21, 2002, injury. He reiterated that his 10\% rating was strictly referable to the March 21, 2002, injury.

For several years employee denied that he sustained a new injury on April 13, 2004. Employee testified during a deposition on October 29, 2007, that he did not suffer any other injuries to his back after the March 2002 injury. Employee testified during that deposition that the April 13, 2004, incident was not a new injury because he had pains every day no matter what he did.

Employee did not file a claim for compensation for the April 13, 2004, accident until January 29, 2008. Ms. Rickner testified that employee did not report the April 13, 2004, injury to employer's workers' compensation office until February 2008. Employer filed its first report of injury to the Division of Workers' Compensation (Division) on February 14, 2008.

With regard to the issue of notice, § 287.420 RSMo provides, in pertinent part:

No proceedings for compensation 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, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds that the employer was in fact misled and prejudiced thereby.

Once an employer receives notice of an injury from an employee, it then has an obligation to file a report of injury with the Division. That obligation is derived from $\S 287.380$ RSMo, which provides, in pertinent part:

1. Every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within ten days after knowledge of an accident resulting in personal injury to any employee notify the division thereof, and shall, within one month from the date of filing of the original notification of injury, file with the division under such rules and regulations and in such form and detail as the division may require, a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work, or compensation hereunder....

In addition to the employee's obligation to provide written notice to the employer, the employee must also file a claim for compensation in accordance with the provisions of $\S 287.430$ RSMo, which provides, in pertinent part:

[N]o proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death.

In this case, the parties agree that employee failed to provide employer with written notice of the injury within 30 days of its occurrence. However, employee maintains that employer received actual notice of the injury on April 13, 2004. The courts have held that actual notice is sufficient proof that the employer was not prejudiced by the employee's failure to provide written notice. See Doerr v. Teton Transp., Inc., 258 S.W.3d 514, 527-28 (Mo. App. 2008).

Immediately after the injury on April 13, 2004, employee reported to employer's on-site medical facility. He was initially treated by a nurse and then referred to the company

Enployee: Terry Fairfield

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doctor. The notes from that on-site visit indicate that employee reported injuring his back when he lifted a skid.

Employer indicated in its February 14, 2008, report of injury that it was notified of employee's injury on April 13, 2004.

Based upon the aforementioned facts, we find, as did the ALJ, that employer received actual notice of the injury on April 13, 2004. We find that this actual notice is sufficient proof that employer was not prejudiced by employee's failure to provide written notice of the accident within one month of Ap