Arthur Carl Lewis v. Cassens Transport Company

- 2 -

Injury No.: 06-127113

We have carefully considered the entire record in light of the parties' arguments on appeal. Ultimately, we are not persuaded to second-guess the administrative law judge's factual findings with regard to the issue of notice, especially given her express finding that employer's witness, Scott Sullentrup, provided the more credible testimony with regard to whether employee gave him notice of his injury three weeks after the alleged accident. We additionally note that not only is there a failure to prove a lack of prejudice to the employer, the variously and materially conflicting medical histories given to employee's medical providers tend to demonstrate actual prejudice.

In sum, we conclude that no proceedings for compensation for the alleged accident shall be maintained, because employee failed to provide the notice required under § 287.420, and failed to prove that employer was not prejudiced by failure to receive the notice. Accordingly, we deny employee's claim against employer and the Second Injury Fund.¹

All other issues are moot.

**Decision**

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

The award and decision of Administrative Law Judge Kathleen M. Hart, issued January 24, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this ______ 11th ______ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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¹ Where employee's claim is barred by virtue of his failure to comply with the notice requirements under § 287.420 RSMo, it necessarily follows that employee has failed to prove the existence of a "subsequent compensable injury" for purposes of § 287.220.2 RSMo.

Employee: Arthur Carl Lewis

Departments: Iona Lewis

Employer: Cassens Transport Company

Additional Party: Second Injury Fund (SIF)

Insurer: Self c/o Broadspire Services

Hearing Date: October 20, 2016

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: alleged November 29, 2006
5. State location where accident occurred or occupational disease was contracted: alleged St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
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: Claimant alleges injury to his low back and left knee when he missed a step climbing down a ladder.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: alleged low back and left knee
14. Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}$
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Arthur Carl Lewis

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,026.02
3. Weekly compensation rate: $\$ 684.01 / \ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

None

TOTAL:

NONE

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Said payments to begin immediately 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 \mathrm{n} / \mathrm{a} % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Arthur Carl Lewis

Departments: Iona Lewis

Employer: Cassens Transport Company

Additional Party: SIF

Insurer: self c/o Broadspire Services Inc.

Injury No.: 06-127113

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter October 20, 2016. Arthur Carl Lewis (Claimant) was represented by attorney Ron Edelman. Cassens Transport (Employer) and Broadspire Services (Insurer) were represented by attorney David Green. SIF was represented by Assistant Attorney General Adam Sandberg.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. Any markings on the exhibits were present when admitted into evidence.

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer's liability was fully self-insured.
3. A Claim for Compensation was timely filed.
4. Claimant's average weekly wage on the alleged date of injury was $\ 1,026.02. His rates for TTD/PTD and PPD are $\ 684.01 and $\ 376.55 respectively.
5. Employer has paid no benefits to date.
6. Claimant's date of MMI regarding his left knee is November 12, 2009.

The parties stipulated the issues to be resolved are as follows:

1. Accident
2. Arising out of and in the course of employment
3. Notice
4. Medical causation

1. Liability for past medical expenses of $\ 71,288.34
2. Future medical care
3. TTD from January 17, 2007 through November 12, 2009
4. Permanent disability
5. SIF liability

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 76 year-old, married, male who grew up on a farm and learned mechanics from his father. When he was 16 years old, Claimant began working in his grandfather's shop on small automobiles. Claimant graduated from high school and has no college or vocational training. He was in the Army Reserves from 1963-1969 and was on active duty for six months working as a bull dozer operator. He had no injuries during his military service and was honorably discharged.
2. Claimant spent the majority of his career working in car and tractor repair. He owned his own garage for many years, and worked at his garage during the periods he was laid off from Employer.
3. Claimant was hired by Employer in July 1977 as a mechanic/welder. His duties for Employer involved welding, climbing trailers, working on brakes, and changing transmissions and clutches. He lifted up to 125 pounds, and was on his feet 80 % of the day. He worked for two years before being laid off and returning to work in his garage.
4. Claimant had a number of injuries and was diagnosed with a number of health conditions prior to the alleged primary injury. In 1974 Claimant underwent surgery to repair a hernia. He testified he continued to have pain following this injury. He had some trouble working in his garage due to his hernia.
5. In January 1984 he returned to work for Employer. On September 4, 1985, he was putting springs in a trailer when a 1500 pound jack fell onto both of his legs. He bent to lift it off, and fractured his sternum and injured his shoulders. Employer provided treatment, and Claimant testified he worked light duty for two years. The treating doctor, Dr. Walters, noted ongoing complaints to the left chest, shoulder and upper abdomen. Claimant advised Dr. Walters he was tired all of the time and not capable of performing the work required by Employer. Dr. Walters issued a 25 pound permanent lifting restriction in May 1987.
6. Dr. Walters noted in May 1987 that Claimant developed severe pain and a catching sensation in his left knee two months before, without injury. In March 1988, Dr. Walters noted Claimant's greatest complaint at that time was his left knee. He could only walk

short distances due to left knee pain. He had pain and soreness in both knees when he got out of bed. Dr. Walters' physical exam revealed tenderness in the left knee and mild enlargement of the medial aspect of Claimant's left knee compared to the right.

1. Claimant also saw Dr. Dash in 1987 for an evaluation of his 1985 injury. He noted a history of a low back injury in 1972, and he found ongoing reduced range of motion in the lumbar spine as well as pain and tenderness in the left knee.
2. After a hearing, Claimant was awarded 10 % PPD of the sternum and 10 % PPD of the left shoulder as a result of the 1984 injury. He was also awarded PPD benefits from the SIF for prior right hip, right wrist, and low back disability. Claimant testified his symptoms continue. His chest hurts if he lifts 25 pounds. He has occasional right shoulder pain, even when he is not lifting.
3. Claimant testified he was laid of