Allen Sparks v. American Airlines

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and is in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge, as modified herein.

We issue this separate opinion to substitute our reasoning for the reasoning of the administrative law judge on the issue of the proper application of $\S 287.420$ RSMo to the facts of this case.

The Second Injury Fund contends that employee's claim must fail because employee failed to satisfy the notice requirements of $\S 287.420 .{ }^{2}$ The administrative law judge ruled that employee's claim against the Second Injury Fund is not barred by $\S 287.420$. We agree with the administrative law judge's ruling but we believe it is correct for reasons other than the reasons given by the administrative law judge.

The administrative law judge found that "[t]he Second Injury Fund offered no evidence showing how it had determined that [employee] did not provide his employer with proper notice as set out in the statute." The administrative law judge concluded that "[t]he Second Injury Fund failed to prove that [employee] did not provide his employer with proper notice of the alleged occupational disease." The administrative law judge placed upon the Second Injury Fund the burden of proving the absence of statutory notice. We disavow this analysis. We have questions with regard to which party bears the burden of proof when notice is disputed and, if lack of notice is deemed an affirmative defense, we question the Second Injury Fund's right to assert same herein. ${ }^{3}$ We need not resolve

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2008, unless otherwise indicated.

${ }^{2}$ The issue of notice is properly before us notwithstanding the Second Injury Fund's failure to preserve the issue by its application for review. In its brief, the Second Injury Fund argued that employee failed to prove statutory notice. Employee did not object to the Second Injury Fund's argument regarding notice and, in fact, responded with his own argument in opposition.

${ }^{3}$ See Aramark Educational Services v. Faulkner, 408 S.W.3d 271 (Mo. App. 2013). Courts have spoken of statutory notice under $\S 287.420$ as a condition precedent to an award of compensation - an element of employee's case in chief. Id., at 277. Procedurally, however, courts seem to have treated notice as an affirmative defense. Id., at 275. Under strict construction, we doubt whether treatment of notice as an affirmative defense is viable. We also note that if failure of notice is properly viewed as an affirmative defense, it may not be available to the Second Injury Fund. The legislature

these issues, however, because the facts before us clearly establish that employee gave timely notice.

Section 287.420 contains six requirements that must be met by a workers' compensation claimant to notify his employer of an occupational disease or repetitive trauma: (1) written notice, (2) of the time, (3) place, and (4) nature of the injury, and (5) the name and address of the person injured, (6) given to the employer no later than thirty days after the diagnosis of the condition. ${ }^{4}$ The first through fifth requirements are clearly met by employee's claim for compensation. The sixth requirement merits a brief discussion.

For purposes of $\S 287.420$, "a person cannot be diagnosed with an 'occupational disease or repetitive trauma' until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure." ${ }^{5}$ The only diagnostician to diagnose employee with tinnitus and to opine there is a causal connection between employee's development of tinnitus and his work environment was Dr. Koprivica who made the connection after he evaluated employee on February 23, 2011.

Employee gave written notice of his condition of tinnitus to employer on or about November 3, 2010, in the form of his claim for compensation. Thus, employee gave notice to employer before Dr. Koprivica determined employee's tinnitus is work-related. As explained by the court in Allcorn v. TAP Enterprises, Inc., the claim filed on November 3, 2010, in relation to the diagnosis of the condition on February 23, 2011, satisfies the time limit of § 287.420. "This is so because the statute does not require that the notice be given after the diagnosis, but only that it be given 'no later than thirty days after the diagnosis of the condition."'6

Based upon the foregoing, we find employee provided to employer the notice required by § 287.420. The provisions of $\S 287.420$ do not bar employee's claim against the Second Injury Fund. In all other respects, we affirm the award and decision of the administrative law judge.

We affirm the administrative law judge's award and decision, as modified herein.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

[^0]

[^0]: granted the Second Injury Fund the right to use all defenses of an uninsured employer when defending against requests for withdrawal of funds from the Second Injury Fund to pay medical expenses and death benefits owed to a claimant by the uninsured employer. See § 287.220.5 RSMo ("In defense of claims under this subsection, the treasurer...shall have the same defenses to such claims as would the uninsured employer"). The legislature did not explicitly grant the Second Injury Fund the same right in defense of claims seeking recovery from the Second Injury Fund under § 287.220.1 RSMo. See § 287.220.2 RSMo ("In all cases in which a recovery against the second injury fund is sought for permanent total disability, permanent partial disability, or death, the...treasurer shall be entitled to defend against the claim.").

${ }^{4} Allcorn v. Tap Enterprises, 277 S.W.3d 823, 828 (Mo. App. 2009).

{ }^{5} Id., at 829 .

{ }^{6}$ Id., at 830 .

We attach a copy of the August 21, 2013, award and decision of Administrative Law Judge Kenneth J. Cain. We affirm and adopt the administrative law judge's findings, conclusions, award and decision to the extent that they are not inconsistent with our findings and conclusions herein.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of September 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Allen Sparks

Injury No: 08-124393

Dependents: N/A

Employer: American Airlines (previously settled)

Insurer: New Hampshire Insurance Company (previously settled)

Sedgwick Claims Management Services

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

Hearing Date: June 26, 2013; final brief filed July 30, 2013 Checked by: KJC/cy

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: November 28, 2008
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri; an adjoining county to Jackson County
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

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of his employment as an airline mechanic and aviation maintenance technician, was exposed to loud noises. Employee developed tinnitus as a result of being exposed to the loud noises.
2. Did accident or occupational disease cause death? No. Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: both ears and body as a whole
4. Nature and extent of any permanent disability: 12 percent to body as a whole
5. Compensation paid to date for temporary disability: N/A
6. Value necessary medical aid paid to date by employer/insurer? N/A
7. Value necessary medical aid not furnished by employer/insurer? N/A
8. Employee's average weekly wages: $\ 1,190 by agreement
9. Weekly compensation rate: $\$ 772.53 / \ 404.66
10. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: N/A

Weeks for permanent partial disability: N/A

Weeks for temporary total and temporary partial disability: N/A

1. Second Injury Liability: Yes

No Second Injury Fund differential benefits (See additional findings of fact and rulings of law)

Permanent total disability benefits at the rate of $\ 772.52 per week effective with August 10, 2011.

TOTAL: Undetermined

1. Future requirements awarded: Undetermined

Said payments to begin as of date of the award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Ms. E. Diane Baker

Employee: Allen Sparks

Injury No: 08-124393

Dependents: N/A

Employer: American Airlines (previously settled)

Insurer: New Hampshire Insurance Company (previously settled) Sedgwick Claims Management Services

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

Hearing Date: June 26, 2013; final brief filed July 30, 2013 Checked by: KJC/cy

The employee settled his case against his employer on November 16, 2011, for \$20,000. The settlement stipulation did not provide the percentage of disability upon which it was based. ${ }^{1}$

The remaining parties, the employee and the State Treasurer as Custodian of the Second Injury Fund, entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether the limitation period had expired prior to the filing of the claim;
2. Notice;
3. Whether the employee sustained an occupational disease arising out of and in the course and scope of his employment; and
4. Liability of the Second Injury Fund for compensation, including the extent of the Second Injury Fund's possible liability.

At the hearing, Mr. Allen Sparks (hereinafter referred to as Claimant) testified that he was born on June 6, 1946 and that he graduated from high school in 1965. He stated that he served in the Military Service from 1966 to 1971 or 1972. He stated that he served in Vietnam from 1968 to 1969.

Claimant testified that he later attended college on a part time basis. He stated that he did not obtain a degree. He stated that prior to 1972 he had worked as a mechanic and as a gas station attendant. He stated that in 1972 he began training as a machinist. He stated that he had worked as a machinist or mechanic for most of his adult life.

[^0]

[^0]: ${ }^{1}$ The settlement was approved by the St. Joseph Office of the Division of Workers'