The only issue before the Commission is whether employee provided employer with proper notice of her January 29, 2010, work injury.
Section 287.420 RSMo provides, in relevant part:
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.
Written notice is not required if the claimant can prove that the employer had actual knowledge of the accident or the employer was not prejudiced by the claimant's failure to report the accident within the statutory time period. Soos v. Mallinckrodt Chem. Co.,
[^0]
[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009 unless otherwise indicated.
19 S.W.3d 683, 686 (Mo. Ct. App. 2000), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).
In this case, employee concedes that she failed to provide proper, timely notice under $\S 287.420$ RSMo. Employee's only argument on appeal is that employer was not prejudiced by her failure to do so. In support of said argument, employee points to the fact that employer stipulated to every factual issue in this case that could speak to compensability. Therefore, employee argues, the evidence she is statutorily required to provide with respect to proving a lack of prejudice was provided by stipulation in this matter.
In response to employee's contention that no prejudice resulted from her failure to provide proper notice, employer raises numerous arguments alleging that it was, in fact, prejudiced.
Employer argues that it was prejudiced in that it was unable to timely investigate the accident to determine causation and address safety issues. Specifically, employer argues that because it was unable to timely investigate the accident, 1) it does not know if employee breached her duty (as provided in employer's policies) to wear non-slip footwear; 2) it was unable to secure the scene of the accident and address the injury at its safety meetings; and 3) it was prevented from providing employee with proper medical treatment.
Employer stipulated that the injury occurred when and how employee alleges, and that as a result of the accidental work injury employee sustained 20\% permanent partial disability of the right knee. By stipulation, employer concedes that employee's injury on January 29, 2010, arose out of and in the course of her employment. If employer believed that causation was an issue in question, it should not have stipulated to that issue at the hearing. Further, if employer believed that employee failed to wear her non-slip footwear in violation of its safety rules, it needed to plead the same as an affirmative defense under § 287.120.5 RSMo. See Carver v. Delta Innovative Services, 2012 Mo. App. LEXIS 1123 (Mo. App. Sept. 11, 2012).
Employer argues that it only stipulated to the aforementioned because it had no evidence to contradict employee's version of the facts, but argues that it is because of employee's failure to provide timely notice that it was unable to timely investigate the accident to obtain said contradictory evidence. We do not find this argument persuasive. It is employee's burden to prove her entitlement to compensation. If employer questioned the circumstances surrounding how the accident occurred, it should not have stipulated to every fact concerning the same.
With respect to employer's contention that it was prejudiced by its inability to secure the scene of the accident and address the injury at its safety meetings, we find that employer has pointed out the potential for prejudice, but did not point to actual prejudice as a result of employee's untimely notice. If another individual was injured in the same location that employee was injured and employer could have prevented said injury had employee provided proper notice, this would represent prejudice. However, employer is merely pointing to the possibility that it could have suffered prejudice due to employee's untimely notice and we do not find this argument persuasive.
As mentioned above, employer also argues that its inability to timely investigate the accident prevented it from providing proper medical treatment. Employer stipulated that as a result of the work injury employee sustained 20% permanent partial disability of the right knee. Employee does not seek reimbursement for her past medical expenses, nor does she request future medical care. In light of the foregoing, we fail to see how employer was prejudiced by its failure to direct and provide employee's medical treatment.
Based upon the foregoing, and in light of employer's stipulations, we do not find that employer was prejudiced by its inability to timely investigate the accident and provide medical treatment.
In addition to the aforementioned, employer argues that it was prejudiced by employee's untimely notice because it caused employer to breach its contract with Washington University. While employer does not point to any adverse action actually taken by Washington University with regard to this accident, employer contends that Washington University could have terminated the contract with employer due to employer's failure to provide it with timely notice of the accident. Similar to employer's argument that it was prejudiced by its inability to address the accident in its safety meetings, employer has only pointed out the possibility of it suffering prejudice due to employee's untimely notice, but has not pointed to any actual prejudice suffered as a result of the same. Further, the contract between Washington University and employer was not entered into evidence, which makes it very difficult to determine what, if any, provisions were breached as a result of employee's untimely notice.
We find, based upon the totality of the evidence, that employee met its burden of proving that employer was not prejudiced by her failure to report the accident within the statutory time period.