Ethan Bohannan v. Peterson Industrial Scaffolding Co.

and thus failed to prove employer has any liability in this case pursuant to the Missouri Workers' Compensation Law. In other words, all other issues would appear to be moot.

The administrative law judge, however, additionally considered the issue whether employee provided adequate notice to employer pursuant to § 287.420 RSMo. In his analysis, the administrative law judge provided certain global statements or summations of Missouri law, such as the following:

Acts of the employer subsequent to the thirty day period are irrelevant to a determination of prejudice. ... The legislature and the courts have determined that an employer cannot conduct a timely investigation after the lapse of thirty days.

Award, page 11 .

We cannot endorse the foregoing, as we are not aware of any legislative, judicial, or other authority supporting these statements of law. In any event, because employee failed to prove that he suffered an accident, we conclude that all other issues, including the issue of notice, are moot. Accordingly, we hereby disclaim the administrative law judge's findings, analysis, and conclusions with respect to all other issues, including the entire discussion set forth under the section on page 11 of his award, designated "Notice of Accident and Injury."

As we have noted, the administrative law judge addressed the issue of notice to the employer pursuant to $\S 287.420$ RSMo. In the body of his award, the administrative law judge concluded that employee failed to give proper notice to employer. However, in the seventh numbered paragraph on page 1 of his award, the administrative law judge stated as follows: "Did employer receive proper notice? Yes[.]" We hereby correct the foregoing to read, instead, as follows: "Did employer receive proper notice? Moot."

Also, in the second sentence of the last paragraph on page 12 of his award, the administrative law judge stated as follows: "The [claim against the] SIF is also denied." However, we note that upon motion by employee, Chief Administrative Law Judge Lee Schaefer dismissed, without prejudice, the claim for compensation against the Second Injury Fund in this matter on May 7, 2015. Subsequently, there was no appearance by any counsel or representative on behalf of the Second Injury Fund at the February 18, 2016, hearing before the administrative law judge, and at the outset of that hearing, the administrative law judge stated: "The Second Injury Fund is not a party to this case." Transcript, page 1. Given these circumstances, we must conclude that there was no Second Injury Fund claim pending before the administrative law judge to either "allow" or to "deny." Accordingly, we hereby delete from the award the above-quoted statement from the administrative law judge with regard to employee's dismissed Second Injury Fund claim.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued May 24, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 7^{\text {th }} \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: December 20, 2011(alleged)
5. State location where accident occurred or occupational disease was contracted: St. Louis 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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleged he was carrying a sheet of plywood when a wind forced him to bend over after which he felt symptoms of slight burning in his low back.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Parts of body injured by accident or occupational disease: N/A
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? None
16. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $\ 1,084.55
2. Weekly compensation rate: $\$ 723.03 / \ 425.19
3. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: N/A

TOTAL:

-0-

1. Future requirements awarded: N/A

The compensation awarded to Claimant shall be subject to a lien in the amount of N/A which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

$\mathrm{N} / \mathrm{A}$

Employee: Ethan Bohannan

Injury No.: 11-110010

Dependents: N/A

Employer: Peterson Industrial Scaffolding Co.

Industrial Party: N/A

Insurer: Insurance Company of the State of Pennsylvania

Hearing Date: February 18, 2016

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a disputed low back injury alleged by Claimant with a reported accident date of December 20, 2011. Employer admits Claimant was employed on said date and that any liability was fully insured. Employer paid no benefits herein. The Second Injury Fund is not a party to this claim. Both parties are represented by counsel. Claimant seeks commencement of benefits herein.

Any objections to exhibits not addressed herein are overruled consistent with the findings and rulings herein.

Notice;

Occurrence of an accident;

Whether injury arose out of and in the course of employment;

Medical causation/MMI;

Liability for unpaid medical expenses (stipulated at \$31,305.58);

Liability for unpaid temporary total disability.

Claimant, age 30, was employed as a laborer by Employer as of the reported accident date. He manually erected and dismantled scaffolding and platforms as part of a crew. Claimant was hired by Employer on December 12, 2011. He initially testified that he worked for Employer full-time for a couple of weeks before the alleged accident date, but agreed on crossexamination that he had been working there only a week prior to the alleged accident.

Prior to working for Employer, Claimant worked for Midwest Service Group performing demolition and asbestos removal for 6 years. He is currently employed full-time with a mesothelioma law firm as an investigator. His duties there consist primarily of a desk job, including sitting at a computer. He has been employed in that capacity since September 2012. Claimant did not work the three-month period between May 23, 2012, his last day with Employer, and his current employment.

Claimant testified that on the alleged accident of December 20, 2011, he was helping dismantle scaffolding at the Federal Building in St. Louis. He was working with 8-10 other employees on this jobsite. The employees used a daisy chain to pass items, such as scaffolding pieces and boards, down to Claimant to carry and sort. He was working alone on the ground level.

Claimant stated that it was very windy on the alleged accident date. As he was carrying the plywood in the pathway between two cooling towers and solar panels, a wind gust blew through and caught him, which he stated bent him over completely to his right side. He stated that he felt a strain on his left side and a burning sensation. He stated that he then stood up and hiked the plywood back up onto his shoulder into his regular position. Claimant stated that he continued working and finished his shift.

Claimant was asked if this event was witnessed by co-workers. Claimant testified that "Dan", a carpenter, was behind him. Claimant stated Dan saw the incident and remarked, "That was the miracle on Spruce Street." (No testimony from Dan is in evidence to corroborate this accident theme.) Claimant later stated Dan was the only person who saw the alleged accident. (T. 15, 19.) Dan was the only person who said someth