(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 04-133552
Employee: Rita Schroeder Hall
Employer: Highlandville Packing Company
Insurer: Missouri Employers Mutual Insurance Company
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 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 July 29, 2011, and awards no compensation in the above-captioned case.
The award and decision of Administrative Law Judge Victorine R. Mahon, issued July 29, 2011, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this $\qquad 12^{\text {th }}$ day of April 2012.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
James Avery, Member
DISSENTING OPINION FILED
Curtis E. Chick, Jr., Member
Attest:
Secretary
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed and a temporary or partial award should be issued directing employer to provide needed medical treatment to cure and relieve the effects of employee's February 27, 2004, work injury.
The ALJ found that employee failed to satisfy the notice provisions located in § 287.420 RSMo. Section 287.420 RSMo provides, as follows:
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....
The ALJ concluded that employee could not recall whether she specifically advised employer that her back injury occurred at work and, therefore, found that "[e]mployer did not know of the work accident." Further, the ALJ concluded that employee failed to prove that employer was not prejudiced by employee's failure to provide notice.
Based upon my review of the evidence, I disagree with the ALJ's conclusions and find that employer was provided actual notice of employee's injury within thirty days of the accident, and was not prejudiced by the fact that the notice was not in writing.
Employee testified that on Friday, February 27, 2004, she attempted to open the heavy meat locker door with the full weight and force of her arms and back. As she did so, employee felt intense pain in her low back. Employee was never able to open the door by herself that morning because it had frozen shut.
Employee stated that she had occasionally experienced back pain that was brought on by the nature of her work; however, her discomfort would usually resolve with rest. The February 27, 2004, injury occurred on the last day of her work week so she assumed that bed rest and over the counter medications would resolve the problem by the start of the next work week. Employee testified that she took over the counter medications and rested the entire weekend, but her back pain did not subside.
On the following Monday, March 1, 2004, employee testified that she discussed the injury and her back condition with one of the owners, Roger Smith. Specifically, employee testified that she was bent over and could not straighten up and Mr. Smith told her that she needed to go to the doctor. Employee stated that she told him about the February 27, 2004, injury at that time. Mr. Smith then directed employee to a local chiropractor, Dr. Schiffner. Dr. Schiffner's records indicate that employee's condition
Injury No.: 04-133552
Employee: Rita Schroeder Hall
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originated on February 27, 2004, when she was "pulling on freezer door and felt snap in low back."
Based upon employee's uncontradicted testimony and Dr. Schiffner's supporting records, I find that employer was given actual notice of employee's work injury on March 1, 2004. I further find that in light of employer's immediate direction of employee's medical treatment that employer was not prejudiced by the fact that its notice was not in writing.
The statute excuses the requirement of written notice where the employer is not prejudiced by the failure to receive such notice. Pattengill v. General Motors Corp., 820 S.W.2d 112, 113 (Mo.App. 1991). The purpose of the notice requirement is (1) to enable the employer to minimize the injury by providing medical diagnosis and treatment, and (2) to facilitate a timely investigation of the facts surrounding the injury. Lawson v. Vendo Company, 353 S.W.2d 113, 119 (Mo.App. 1961). The burden of proving the employer was not prejudiced lies with the claimant. Klopstein v. Schroll House Moving Co., 425 S.W.2d 498, 504 (Mo.App. 1968). However, if a claimant makes a prima facie showing of no prejudice, the burden shifts to the employer to show prejudice. Ford v. BiState Development Agency, 677 S.W.2d 899, 902 (Mo.App. 1984).
Hannick v. Kelly Temporary Services, 855 S.W.2d 497, 499 (Mo. App. 1993).
In light of this prima facie showing by employee of no prejudice, the burden shifts to the employer to demonstrate that it was prejudiced. Employer failed to produce any evidence showing that it was prejudiced by employee's failure to provide written notice of the injury. Due to the fact that employer immediately directed employee's medical treatment on March 1, 2004, employer cannot allege that it was unable to minimize the injury by providing medical diagnosis and treatment or was unable to timely investigate the facts surrounding the injury. Employer had actual notice of the injury and began directing treatment just three days after the accident.
For the foregoing reasons, I disagree with the ALJ's finding that employee failed to satisfy the notice requirements of $\S 287.420$ RSMo. I find that employer was provided actual notice on March 1, 2004, and was not prejudiced by the fact that the notice was not in writing.
In addition to the aforementioned, I also disagree with the ALJ's finding that there is no causal connection between employee's herniated L4-L5 lumbar disc and the work-related injury on February 27, 2004.
Employee sought medical treatment for the work injury just three days after its occurrence. While employee may have initially treated conservatively for this injury, an MRI eventually revealed the herniated disc at the L4-L5 level in her lumbar spine.
There was no evidence or medical records adduced at the hearing indicating employee had any low back condition prior to February 27, 2004. There was also no evidence
Injury No.: 04-133552
Employee: Rita Schroeder Hall
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presented that employee had sustained any type of intervening event or injury between February 27, 2004, and the MRI that was performed on November 17, 2004.
Dr. Bennoch completed a medical records review and physical examination and opined that the February 27, 2004, injury was the prevailing factor causing the herniated disc at L4-L5 in employee's lumbar spine. Dr. Bennoch also recommended that employee return to neurosurgeon, Dr. Lee, for further neurological evaluation and, in all probability, low back surgery.
In sum, I find that employee satisfied the notice requirements of § 287.420 RSMo and is in need of further medical treatment to cure and relieve the effects of the February 27, 2004, work injury. For the foregoing reasons, a temporary or partial award should be issued directing employer to provide said medical treatment.
I respectfully dissent from the decision of the majority of the Commission.
Curtis E. Chick, Jr., Member