As a preliminary matter, we note the administrative law judge's suggestion or implied finding that employer waived its affirmative defense of notice by failing to identify it in its Answer to employee's Claim for Compensation. We disagree. We find instructive the case of *Lawson v. Emerson Electric Co.*, 809 S.W.2d 121 (Mo. App. 1991), overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). In *Lawson*, the court held that the employer waived the defense of notice where it filed an answer which was silent with regard to notice, and thereafter failed to identify an issue with respect to notice at a hearing before an administrative law judge. *Id.* at 125. Here, employer filed an Answer that did not identify notice as an affirmative defense, but
Enployee: James Gulotta
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at the hearing, the administrative law judge recited that the parties were disputing the issue of notice. Transcript, page 5. The parties then added other issues and employee's counsel informed the administrative law judge that employee was requesting a temporary award. During this exchange, employee made no objection to including notice as an issue, and the record reveals that both parties thereafter presented evidence pertinent to the issue of notice. Employee does not now claim that he was surprised by employer's contesting the issue of notice at the hearing, or that he was prejudiced as a result. Given all of these circumstances, we find *Lawson* distinguishable, and we conclude that the issue of notice is properly before us and that employer did not waive its affirmative defense.
The administrative law judge failed to render any affirmative conclusion as to whether employee provided written notice to employer satisfying each element of the statute, and if not, whether employer was prejudiced by failure to receive the notice. The administrative law judge also appears to have improperly analyzed the notice requirements pertinent to an occupational disease, when he discussed the findings of a diagnostician linking employee's back injury to his work. As a result of these errors and ambiguities, the requisite statutory analysis remains to be accomplished. We turn now to that analysis.
Section 287.420 RSMo sets forth the notice required by injured employees and 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.
We find that employee provided notice of his work injury to employer on August 4, 2008, when he informed Victor Wilson, his supervisor, that he'd suffered an accident and hurt his back at work on July 31, 2008. We find that, also on August 4, 2008, employee spoke to employer's safety steward, James King, and filled out a First Aid Report providing his name and the date, location, and nature of his injury. Employee even submitted to a urinalysis on that date.
But because the First Aid Report does not include employee's address, and given that neither party has identified any other written notice from employee to employer within thirty days after the accident, it appears that employee failed to provide a written notice that strictly satisfied each of the elements of the statute. See *Allcorn v. Tap Enters.*, 277 S.W.3d 823, 830 (Mo. App. 2009). Thus, the question is whether employee demonstrated that employer was not prejudiced by failure to receive the notice. "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." *Soos v. Mallinckrodt Chem. Co.*, 19 S.W.3d 683, 686 (Mo. App. 2000) (citations omitted), overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 224 (Mo. banc 2003).
We have found that on August 4, 2008, employee told his supervisor, Victor Wilson, as well as employer's safety steward, James King, that he hurt his low back on or about July 31, 2008. "Notice or knowledge is imputed to the employer when it is given to a supervisory employee." Dunn v. Hussman Corp., 892 S.W.2d 676, 681 (Mo. App. 1994) (citation omitted). We conclude that employer had actual knowledge of employee's work injury. Because employer had actual knowledge of employee's work injury, the burden shifts to employer to demonstrate that it was prejudiced by employee's failure to provide written notice. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 511 (Mo. App. 2011). After a thorough review of the record, we are convinced that employer failed to meet that burden.
The record reveals that employer had an opportunity to provide medical treatment to minimize employee's back injury and to investigate the circumstances of the accident as soon as employee reported the back injury on August 4, 2008, a mere four days after it occurred. It appears that employer first took advantage of that opportunity in October 2008, when it sent employee to Dr. Tentori, who released employee for full-duty work even while noting his herniated disc at L5-S1 and his pain levels of 7-9 out of 10. Thereafter, employer denied further medical care for employee and told him he was on his own. At any time, employer could have changed course and exercised its right to direct medical treatment, and certainly cannot now reasonably claim to have been hampered in its ability to investigate the circumstances of the accident merely because employee's written notice omitted his address.
We conclude that employer was not prejudiced by employee's failure to provide written notice meeting each of the requirements under § 287.420. We conclude that employee's claim is not barred by that section.