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 something to him about it:

Q: Okay was there any one else that made a comment to you about this wind incident?

A: You know, not--

Q: That day.

A: -- not really.

Q: That day.

A: Yeah.

Q: No okay. [ ... ]

(T. 21.) Claimant conceded at trial that, during his deposition, he referred multiple times to a group of people who saw this accident occur. (T. 86-88)

Next, Claimant was asked if he had provided Employer written notice within 30 days of the incident under the Missouri Workers' Compensation Law. He said he had not and, in response to a leading question, affirmed he had supervisors that had "actual knowledge" that he had sustained some type of "unusual strain." He identified several supervisors and stated, "I told

everybody, you know." (T. 24.) He said he talked to Rick Bell "about everything" and he was talking to other people to see if they had seen anything. Claimant testified that he did not ask to leave work after the accident, nor did he ask anyone at Employer, including his supervisor, to send him to the doctor for medical treatment. He worked the next three days and he worked his regular job duties. He expressly stated he worked without any restrictions. (T. 22, 92)

Claimant testified, "there were different times where it felt like I was dragging my leg behind me." (T. 23.) He stated that, over the next few weeks, his symptoms gradually worsened. He specifically stated he had sharp pain in his hip and down his left leg. He testified that he was concerned with the pain, but continued to work.

Claimant was asked,

Q: Okay. And you did not ask to leave work that day, correct?

A: No.

Q: And you did not ask anyone at the employer to send you to the doctor?

A: I did not ask anybody that was right there.

Q: You never asked anyone at the employer to send you to the doctor, correct?

A: I did not as any of my supervisors that I had right there to send me to the doctor.

Q: I'm not talking about that day. I'm sorry. Ever. Did you ever ask any supervisors to send you to the doctor?

A: No.

(T. 89-90.) He admitted that he did not demand medical treatment until after he obtained an attorney months later. (T. 94.)

At trial Claimant stated he believed he told Brian Berkel, Josh Stegall and Rick Bell, who were all supervisors, and everybody else who was working there. Claimant confirmed at trial that he stated during his deposition that he told everybody because he was in a lot of pain.

Claimant testified further that he told Mr. Berkel, a superintendent, that his back was really hurting and that he cranked over and injured himself while carrying plywood, which might slow him down at work. He testified that Mr. Bell advised him that he would bring it up at the safety meeting in mid-January. Claimant asserted that he said something to Mr. Stegall "every single day" about hurting his back after being cranked over by the blown plywood incident. He stated that he spoke with Mr. Stegall in January about the alleged accident.

Brian Berkel testified by deposition marked Exhibit C. Mr. Berkel stated he was working with Claimant on the alleged accident date, but that he did not see Claimant injure himself. Neither Claimant nor anyone else told him that Claimant injured himself at work. Mr. Berkel stated that, if someone injured himself, the entire assembly line would have been interrupted, so he would have noticed. Mr. Berkel stated that Claimant would have attended a contractor's orientation before working at the Robert A. Young Building site, which is when they would have

discussed what to do when they are injured at work. Claimant denied attending any such meeting.

Mr. Berkel further testified that Claimant never told him that he injured himself at work. Claimant never complained of any difficulties performing his job while working with him in January or February 2012, after the alleged accident date. The only thing Claimant told Mr. Berkel was that he received "a shot in his back and it felt great, and [he] should try it out." There was no mention of how Claimant hurt his back and this was the only mention of anything pertaining to Claimant's back symptoms.

Josh Stegall also testified by deposition marked Exhibit B. Mr. Stegall stated in his deposition that Claimant never told him that he injured himself on the alleged accident date, or that he injured himself in any way. (Ex. B). Mr. Stegall never saw Claimant injure himself and did not notice that Claimant had any difficulty performing his job duties on the federal building job, nor on subsequent jobsites. Similar to Mr. Berkel, Mr. Stegall testified that Claimant never told him his back was hurting at all and, separately, that Claimant would know how to report an injury at work after attending orientation. Mr. Stegall testified that he only heard about Claimant's alleged accident during a November 2012 safety meeting, almost a year after the alleged accident date, and five months after a claim for compensation was filed. Similar to Mr. Berkel, Mr. Stegall stated that Claimant would know how to report an injury after attending orientation prior to the alleged accident date.

Both Mr. Stegall and Mr. Berkel testified that the general procedure for reporting injuries is for the injured worker to report the injury to their supervisor or superintendent, who calls the safety coordinator, Rich Moss. Mr. Berkel testified that he was the superintendent on the alleged accident date.

Claimant denied any prior hospitalizations, other than two prior ACL reconstruction surgeries. Claimant initially denied any chiropractic treatment for his back prior to the alleged accident date. However, he later admitted at trial that he received chiropractic treatment within the last several years, but that it was mainly for his shoulder area.

Here, Claimant first sought medical treatment on February 6, 2012, approximately 48 days after the alleged accident date. Both parties submitted various medical records and reports into evidence.

On February 6, 2012, Claimant sought treatment from Dr. Leonard Lucas (Family Medical Group) for back pain which he had been experiencing for about one and a half months. (Exhibit 1). Dr. Lucas noted that Claimant "saw Chiro for 5 weeks w/o success." Dr. Lucas diagnosed hypertension and sciatica. There is no mention of a work accident at this visit.

On February 9, 2012, an MRI of the lumbar spine showed a large disc herniation at L5-S1 level extending to the left effacing and impinging to the left S1 nerve root and L5 nerve and mild to moderate degenerative changes at the L4-L5 level with moderate central canal stenosis.

On March 14, 2012, Claimant followed-up with Dr. Lucas due to numbness and pain in his left leg. Dr. Lucas diagnosed hypertension, lumbar disc displacement, and sciatica. There is no mention of a work accident at this visit.

On March 21, 2012, Claimant indicated on a Pain Management Questionnaire for Dr. J. Al Vellinga's office that his injury was not work-related, as he checked the box stating that it was not a "Work Comp claim." (Ex. E and G). He further indicated on this Questionnaire that his lower back and leg pain started on September 30, 2011, and signed and dated it.

On March 22, 2012, Claimant sought treatment from Dr. Vellinga for low back and left leg pain that began approximately six months ago (or September 2011). Dr. Vellinga diagnosed Claimant with a herniated lumbar disc, low back pain, lumbar radiculitis, and left L5-S1 neuropathy. He recommended an epidural steroid injection and possibly selective nerve root blocks. Over the next month, Dr. Vellinga gave Claimant three injections, including a lumbar epidural steroid injection, translaminar lumbar epidural injection, and an L5 selective nerve root block during this time. The injections provided about 40 % relief. Id. Dr. Vellinga's diagnoses were L5 neuropathy and low back pain.

On April 26, 2012, Dr. Vellinga noted that Claimant was "considering" hiring a workers' compensation lawyer, but did not mention anything about a work injury in his report.

On May 10, 2012, Claimant followed-up with Dr. Lucas due to back pain and for medication refills. (Ex. 1). Claimant stated that he had three epidural steroid injections that helped only for a few days and that he is currently having neuropathic pain. Id. He was referred to physical therapy. Id.

On August 30, 2012, Claimant followed-up with Family Medical Group, but this time with Dr. Shawn Brunk, for a refill of medications. (Ex. 3).

On January 21, 2013, Claimant followed-up with Dr. Brunk to check his blood pressure and refill pain medications. Id. Dr. Brunk noted that Claimant had "no other concerns," other than his blood pressure and need for medication refill.

On April 30, 2013, Claimant sought treatment from Dr. Thomas Lee for posterior thigh symptoms to proximal calf as well as left low back pain. (Exhibit 4). Dr. Lee noted Claimant's work accident and that his symptoms began two days thereafter. Id. Claimant stated that he had

three epidural steroid injections in March 2012 and April 2012. He denied any prior injuries to his back and stated that he treated with a chiropractor one time in the past, but it had "nothing to do with this problem." Dr. Lee noted that the MRI of the lumbar spine showed moderate to large left-sided herniation. Id. In the Back Pain Questionnaire, Claimant indicated that this was a work-related injury. Id.

On May 8, 2013, Claimant followed-up with Dr. Lee for left sacroiliac pain to the posterior knee. Claimant stated that he was closing on a house at the end of the month and that he can get help with the move. Dr. Lee recommended a left L5-S1 microdisketomy, microdecompression. On May 24, 2013, Claimant underwent surgery, performed by Dr. Lee, including left L5-S1 laminotomies, with L5-S1 diskectomy. Dr. Lee's pre- and post-operative diagnoses were left L5-S1 herniated nucleus pulposus.

Claimant offered the report and deposition of Dr. Robert Poetz as Exhibits 5 and 6. Dr. Poetz examined Claimant on October 7, 2013 and reviewed the medical record. Claimant gave a history of having been employed for six to eight months at the time of the December 20, 2011 injury. (Exhibit 5, p. 1) Claimant stated that he continued to have some lower back pain and stiffness, but it had improved since the surgery. Dr. Poetz noted Dr. Lucas's records and expressly referenced the 5 week chiropractic treatment that was unsuccessful. ${ }^{1}$ Dr. Poetz also noted Claimant's treatment with Dr. Vellinga and subsequent surgery with Dr. Lee.

Dr. Poetz opined that the injury that occurred on December 20, 2011 was the substantial and prevailing factor in his resulting permanent disability. He opined that Claimant had a 35\% permanent partial disability to the body as a whole referable to the lumbar spine directly resulting from the December 20, 2011 work-related injury.

Employer offered the deposition of Dr. Robert Brernardi as Exhibit A. Dr. Bernardi examined Claimant on April 22, 2014 and reviewed the medical record. At this visit, Claimant could not recall the date of his work accident, but Dr. Bernardi determined it allegedly occurred on December 20, 2011. Claimant denied any prior history of significant or sustained low back pain, but Dr. Bernardi noted that he had seen a chiropractor prior to the alleged date of injury on a single occasion to have his back adjusted. Dr. Bernardi also noted that Claimant did not seek immediate medical attention and continued to work until he was let go because he stated that business was slow. Claimant told Dr. Bernardi that this alleged incident was witnessed by "several" co-workers and that he reported it to his supervisor, but he was never asked to fill out an accident report.

[^0]

[^0]: ${ }^{1}$ These chiropractic treatment records are not in evidence.

Dr. Bernardi diagnosed Claimant with L4-5 degenerative disc/facet disease and degenerative stenosis, left L5-S1 herniated disc, left S1 radiculopathy, and noted that he underwent a left L5-S1 discectomy. Dr. Bernardi opined that none of the findings on the February 9, 2012 MRI of the lumbar spine, which described degenerative disc and facet disease at L4-5 with associated spinal stenosis, were acute or post-traumatic. Instead, they all evolved slowly and over the course of many years, and were all present prior to Claimant's alleged work accident. None of these findings caused or contributed to the back symptoms for which he underwent surgery by Dr. Lee. Dr. Bernardi opined that Claimant's preoperative back and leg symptoms were due to the disc herniation seen on the MRI scan.

Regarding the nature of a disc herniation, Dr. Bernardi explained if the events transpired as described by Claimant, then Dr. Bernardi opined that his work activities would appear to be the prevailing factor in producing the L5-S1 disc herniation, radiculopathy, and need for surgery performed by Dr. Lee. However, if the events of that day did not transpire as Claimant describes, his disc herniation, symptoms, and need for treatment are not work-related.

Due to the information available to him and the lack of medical evidence mentioning a work accident, Dr. Bernardi opined that he has "a difficult time concluding that [Claimant's] low back and left leg complaints were causally related to his employment at [Employer]." Dr. Bernardi noted that it appeared Claimant treated with a chiropractor for five weeks prior to the alleged date of injury. Additionally, when Claimant saw Dr. Lucas on February 6, 2012, there was no mention that his symptoms might have been work-related. There was no mention of a work injury when he followed with Dr. Lucas on March 14, 2012 or in Dr. Vellinga's notes.

Dr. Bernardi put Claimant at maximum medical improvement without restrictions and opined that he had a 7 % person as a whole permanent disability rating at the level of his lumbar spine related to his L5-S1 disc herniation and associated S1 radiculopathy. However, because he could not conclude that these symptoms were work-related, Dr. Bernardi did not think that any of his disability could be considered work-related either.

On cross examination, Claimant made numerous statements that were inconsistent with the treatment records, was impeached with his deposition testimony and simply changed his testimony on cross-examination.

Regarding the number of witnesses, Claimant's testimony was "everybody" on direct examination until confronted with his deposition testimony only "Dan." Moreover, Claimant could not remember the carpenter's name at his deposition but looked into it "since [he] had been asked" about it. (T. 84-88.) [In contrast, Claimant was asked about his chiropractor's name but could not remember it, stating, "I didn't know I really needed to." (T. 57.)]

Regarding his statement on direct examination that he told supervisor Stegall about injuring his back "from carrying that piece of plywood," Claimant agreed that during that

deposition he did not testify to that. He merely stated that "I told him that my back kind of hurt right then," with no mention of a work accident. (T. 88-89.)

Claimant was confronted with Dr. Lucas's notes that he had seen a chiropractor for five weeks without success, but Claimant testified that he did not see a chiropractor for this incident at all. Regarding this discrepancy, Claimant suggested that Dr. Lucas could have been referring to whether he had ever seen a chiropractor at all, despite the specific "five-week" time frame indicated by Dr. Lucas plus the characterization that the chiropractic treatment was unsuccessful.

Separately, Claimant admitted to treating with the chiropractor casually to "get loosened up and things like that" but, nevertheless, made no demand for treatment for a work related injury in which he claimed 9 of 10 pain. (T. 29) In addition, Claimant could not recall the name of the chiropractor at trial, other than the fact that he was located near I-70 in St. Charles, Missouri and despite having traveled on I-70 from O'Fallon, past St. Charles, to St. Louis, Missouri since at least August 2012. He did not think he needed to remember it.

Claimant was referred by Dr. Lucas to Dr. J. Al Vellinga, a pain management physician. Dr. Vellinga provided a series of injections. Claimant disputed Dr. Vellinga's records that indicate he attended physical therapy, stating that he never did. Claimant did not discuss Dr. Vellinga's questionnaire on direct examination but, on cross-examination, acceded to his three separate indications/omissions seeking whether the injury was work related. In later crossexamination Claimant inexplicably ignored these admissions. (T. 30-31, 59-61, 63-64)

Claimant identified his New Patient Questionnaire form from Dr. Vellinga's office, completed in his own handwriting. He testified that page one asks whether he was there for a Workers' Compensation claim and he stated that he checked the box marked "No." Second, he testified that page two asked how his pain started and he stated that he did not circle the option indicating he was injured at work. Third, this same page also asked whether he was injured at work and, if so, which day he was injured, and he admitted that he wrote nothing in that blank. Fourth, a question asked when the pain started, and he confirmed that he wrote down "September 30, 2011."

Separately, still regarding Dr. Vellinga, on this form, he also stated that he was able to drive, do housework, work at a job, walk one block, and climb stairs. On direct examination he described his pain as a 9 on a scale of 10. (T. 30.) Again, this is in context of full-time, regular duty work with no restrictions.

Some of Claimant's testimony was simply inconsistent, or deliberately evasive. On direct examinataion he was questioned about the work days following the alleged accident that occurred on a Tuesday and the fact that the crew worked in the days preceding the Christmas holiday. However, on direct examination, Claimant was unwilling to acknowledge that Tuesday was the accident day. (T. 21, 75) Elsewhere, he purported not to recall his referral to his back surgeon even though Claimant currently works as a legal investigator. (T. 63)

Contrary to his own Exhibit, Claimant insisted he was prescribed pain relievers but his expert, Dr. Poetz, did not document prescription pain relievers despite a full evaluation. (T. 6768.)

Extended testimony from Claimant reveals amply that his responses were inexact, yet emphatic, injecting urgent language like "at this point" and "holding out." His testimony was often misleading and he acceded to numerous corrections on cross-examination. His testimony contrasted sharply with the two supervisors whose testimony reconciles well with the timeline and the lack of WC patient histories to his (private) medical providers. Claimant's testimony is not reliable and cannot be found to be credible.

The unusual amount of leading questions, and summarizing questions, were a frequent distraction during trial.

The purpose of Section 287.420 RSMo (2000) is to give the employer timely opportunity to investigate the facts pertaining to whether the accident occurred and, if so, give the employee medical attention to minimize any disability. The requirement of written notice may be circumvented if the Claimant makes a showing of good cause or the employer is not prejudiced by the lack of such notice.

A Claimant must specifically prove the employer was not prejudiced by the lack of notice. A prima facie case of no prejudice is made upon a showing that employer had actual notice. No prejudice exists where the evidence of actual notice was uncontradicted, admitted by the employer, or accepted as true by the fact-finder. Acts of the employer subsequent to the thirty day period are irrelevant to a determination of prejudice. The purpose of the thirty day period is to allow the employer opportunity for timely investigation. Actual notice after the thirty day period does not prevent the employer from being prejudiced. Willis v. Jewish Hospital, 854 S.W.2d 82 (Mo.App. 1993). Michael Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo.App. 2000).

Here, it is undisputed Claimant did not provide Employer with written notice within thirty days of the alleged incident. Claimant asserts that he gave each of several supervisors oral notice which constitutes actual notice. Claimant's supervisors credibly disputed this allegation. Claimant's assertion of oral notice to the supervisors is also without any corroboration from either medical records or Claimant's conduct. Claimant treated privately and none of those records contains a work-related patient history; one provider's records contains a September 23, 2011 symptom onset date. Separately, there is no testimony or other evidence that would prove Employer was not prejudiced by the lack of notice.

Whether Claimant admits of any preexisting disability or whether he thought the pain would resolve itself is irrelevant to the threshold inquiry of whether Employer had an opportunity to investigate the accident and seek to minimize the effects of the injury. Again, the preliminary inquiry is one of proper notice, not whether a work related injury occurred. In any event, the medical records and other circumstances do not suggest the work related accident scenario testified to by Claimant. The legislature and the courts have determined that an employer cannot conduct a timely investigation after the lapse of thirty days. The remaining issues are moot.

Assuming, arguendo, Claimant's responsibility to give notice was satisfied, Claimant offered insufficient evidence to support the occurrence of a work related accident or medical causation of an injury by accident. Section 287.020.2 RSMo provides, as follows:

The word "accident as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

For the reasons stated above, however, Claimant's testimony is not credible as to how the accident occurred or whether an injury resulted. However, even if the incident of the wind-blown plywood is relied upon, proof of a resulting injury is lacking. Claimant did not seek treatment for 48 days following the alleged incident. During this same period, and extending almost to the end of May, 2012, Claimant did not miss any time from work. Claimant made no demand for treatment and apparently never took off work for private treatment.

There is neither a contemporaneous demand for treatment nor any patient histories to providers describing a work related injury. It is not until treatment notes in February 2012 that any trace of a work related injury may be found. Claimant continued to work a strenuous job without missing work or any demand for treatment. Claimant had prior experience with a WC injury and the reliable evidence suggests Employer's crew attended a safety meeting at the outset of the job on the federal building. Claimant testified that he did not tell Dr. Lucas about the alleged accident because he was never asked. (T. 58.)

Separately, the testimony of the two supervisors, taken together, concerning whether a work related injury occurred, is consistent with the balance of the record: the undisputed failure to provide written notice, admitted lack of any treatment demands, no lost time from work and unrestricted duty (performing heavy work) during the months following the alleged accident. No facts are in evidence to suggest Employer did not investigate timely notice of an injury. Again the remaining issues are moot.

Accordingly, on the basis of the substantial probative evidence contained in the whole record, the Claim is denied. The SIF is also denied. The remaining issues are moot.

Date: $\qquad

Made by: \qquad$

JOSEPH E. DENIGAN

Administrative Law Judge