Brenda Sadler v. Hussmann Ingersoll Rand

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 11-110107**

**Employee:** Brenda Sadler

**Employer:** Hussmann Ingersoll Rand

**Insurer:** Indemnity Insurance Company of North America

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 25, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Jason A. Tilley, issued November 25, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **9th** day of September, 2020.

---

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, 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: N/A.
5. State location where accident occurred or occupational disease was contracted: N/A.
6. Was above Claimant 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 Claimant was doing and how accident occurred or occupational disease contracted: See Award.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Alleged back/body as a whole.
14. Nature and extent of any permanent disability: 0 %.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by Employer/Insurer? None.
17. Value necessary medical aid not furnished by Employer/Insurer? None.
18. Claimant's average weekly wages: $\ 634.45.

Issued by DIVISION OF WORKERS' COMPENSATION

1. Weekly compensation rate: Temporary Total Disability/Permanent Partial Disability: $422.97.

1. Method wages computation: Stipulated.

COMPENSATION PAYABLE

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. future requirements award: None

TOTAL: $0.00

Injury No.: 11-110107

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-110107

Claimant: Brenda Sadler

DIVISION OF WORKERS' COMPENSATION

Dependents: N/A

Employer: Hussmann Ingersoll Rand

Additional Party: Second Injury Fund

Insurer: Indemnity Ins. Co. of No. America c/o Gallagher Bassett Services

Hearing Date: August 13, 2019

Hearing Date: August 13, 2019

Checked by:

I. PRELIMINARY STATEMENT

The above referenced Workers' Compensation injury claim was heard before the undersigned administrative law judge on August 13, 2019. The deadline for proposed awards was September 12, 2019. Employer/Insurer and the Second Injury Fund submitted their proposed awards on September 12, 2019. Claimant's proposed award was submitted on September 13, 2019. Counsel for Employer/Insurer objected to the late submission and said objection was considered and overruled.

The parties agreed that Injury No. 11-111626 would be consolidated under Injury No. 11-110107.

The parties stipulated that Brenda Sadler ("Claimant" was employed by Hussmann ("Employer") on or about December 1, 2011. The Claimant was working under the provisions of Missouri Workers' Compensation Law. Employer's Workers' Compensation liability was self-insured; Indemnity Insurance Company of North America c/o Gallagher Bassett Services, their third party administrator. A claim for compensation was timely filed. The Claimant's average weekly wage was 634.45, resulting in a compensation rate of 422.97 per week for PPD and TTD. The Employer has paid no temporary disability benefits or medical benefits.

The issues to be resolved by hearing included:

1. Notice.
2. Was there an accident arising out of and in the course and scope of employment on December 1, 2011?
3. If there was an accident, did that accident cause permanent partial or permanent total disability?
4. The liability of the Second Injury Fund for permanent total disability.
5. Was future medical reasonable and necessary?

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II. EXHIBITS

Claimant offered exhibits 1-17, which were admitted into evidence without objection. Those exhibits included:

1. Amended Claim for Compensation 11-110107.
2. Deposition of Dr. Robert Poetz.
3. Deposition of Expert Timothy G. Lalk.
4. St. Luke's CDI records.
5. Intervention Pain Care records.
6. Advanced Physical Therapy records.
7. Troy Chiropractic records.
8. Dr. Ann Hibbard records.
9. The Orthopedic Center of St. Louis records.
10. Vocational Expert Tim Lalk's evaluation.
11. Dr. Robert Poetz report dated 3/20/13.
12. MFG Spine bill.
13. Interventional Pain Care bills.
14. Troy Chiropractic bills.
15. Advanced Physical Therapy bills.
16. The Orthopedic Center of St. Louis bills.
17. Prior MO Workers' Compensation stipulations/medical.

The Employer/Insurer offered exhibits A - J, which were admitted into evidence without objection. Those exhibits included:

A. Claim for Compensation in Injury No. 11-110107.

B. Answer to Claim for Compensation in Injury No. 11-110107.

C. First Report of Injury in Injury No. 11-110107.

D. Deposition of Thomas Besancenez.

E. Deposition of Charles Robertson.

F. Deposition of Dr. Patricia Hurford.

G. Deposition of June Blaine, Vocational Rehabilitation Counselor.

H. Deposition of Brenda Sue Sadler.

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I. Certified records of Dr. Matthew Gornet.

J. Claimant Personnel File/Hussmann Corporation.

Brenda Sadler (also known as and referred to as "Sue") was born on April 10, 1957. She has three adult children. She has been married for 40 years. She resides in O'Fallon, Missouri. She left school in 1973 in the tenth grade. She is right handed. She stands approximately 5'4" tall. She receives Social Security disability benefits. She is also on Medicare.

The Claimant went to work for Hussmann in 1977. Claimant believes that the last day that she worked for Hussmann was around January 21, 2012, before she went on a medical leave of absence. She believes after that date that she attempted to return to work for the Employer for approximately one week, sometime in June or July in 2012. She was hired by Hussmann as a full-time Claimant. She worked approximately 40 hours a week with occasional overtime.

She alleged a specific injury occurring at work with a specific date of December 1, 2011, as was the pleaded injury date in her Claim for Compensation. At the hearing, she testified that the incident could have occurred at the end of November or during December. At her deposition, the Claimant testified that the incident could have occurred in late November, or sometime in December. She does not recall the specific date that the injury occurred. A claim for compensation was filed with the Division of Workers' Compensation on July 9, 2012, alleging injury to the back occurring on or about December 1, 2011. The Employer/Insurer filed an answer to claim for compensation upon receipt of that claim on July 16, 2012. The Claimant pleaded that she had lifted a specific refrigeration case that caused injury. She stated that she was lifting the case with the help of a co-worker, Charles Robertson. The Claimant agreed that she could not recall the specific date the injury occurred. At her deposition, her attorney stated that they had been assigned the date of December 1, 2011 by the Division.

With respect to the accident, the Claimant testified that "basically, I felt a pull in my back. We were doing like the seven foot case I was talking about... and I felt a pull in my left lumbar, lower back area and it kind of went into the left side of - - the buttock cheek, whatever, whatever. It was just a little pain." Claimant deposition transcript pages 25 through 26.

The Claimant was familiar with the process for reporting a work injury. She had had prior Workers' Compensation Claims at Hussmann. She had hired an attorney to represent her at

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least one of those prior injuries, which involved her shoulder. She stated that she did not ask for treatment following the alleged December 1, 2011 injury because she did not want to treat with doctors selected by the Employer.

The Claimant testified that she had discomfort after the incident. She placed ice on the affected area. She did not ask the Employer to send her out for treatment. She decided to seek treatment on her own. She did not want to see the Employer's doctors. Claimant testified that she wanted to control the course of her medical treatment. At the same time, the Claimant was applying for disability retirement benefits.

Claimant testified that she was working with Charles "Ronny" Robertson when the incident occurred. She states that she also reported the incident to her foreman, Tom Besancenez. She could not recall whether the incident occurred in either late November or early December 2011.

Mr. Besancenez was deposed by Claimant's counsel on February 24, 2014. He testified that he was a production supervisor for Hussmann. He had worked for Hussmann for approximately eight years when he was deposed. He testified he oversaw 16 employees and was responsible for lines 8, 34, and 53. He testified that the Claimant made shelves; she was responsible for bolting pre-assembled shelves together, and she sat in a chair while performing those activities. He testified she sat in a chair 99.9 percent of the time that she worked. He testified that he did not recall the Claimant reporting a work injury to her back when lifting a refrigeration case. He did recall her commenting about generalized back pain, and that the Claimant has difficulty from time to time with recurring back pain from a previous injury.

Mr. Besancenez testified that it was his duty and practice to prepare a report of injury when notified of a work injury. He testified he did not fill out any paperwork with respect to the Claimant's alleged work injury, as none was reported to him. He did not recall a specific incident. Mr. Besancenez testified "I recall Sue never saying she got hurt or asking to go to medical." (Besancenez deposition transcript, page 32, line 17-8). He did not recall the Claimant notifying him that she had hurt herself or was going home to take Ibuprofen. He did not know whether an investigation had been internally undertaken at Hussmann to determine whether the Claimant has sustained an injury sometime in December.

The Claimant identified Charles Robertson, a co-worker, as an additional witness to the December 1, 2011 alleged injury. Mr. Robertson's testimony was taken on October 6, 2104, by Claimant's counsel. Mr. Robertson testified that he worked for Hussmann as an assembler. He

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stated that he and Claimant worked under Tom Besancenez. Mr. Robertson was responsible for assembling the cases. He had been working for Hussmann for approximately 33 years when he was deposed. He worked on line 8, but sometimes he was bumped to line 7 or 3. He testified that he worked with the Claimant on line 8, and he may have worked with the Claimant in that capacity in December 2011.

Mr. Robertson testified that the Claimant told him about a back injury, but that she had been talking about the injury for a long time. He testified the Claimant said her back was sore when they worked on line 53. When asked to approximate how long it was that Claimant was on line 53, Mr. Robertson testified, "Yeah, it's been years." (Robertson deposition transcript, page 21, line 16) Mr. Robertson testified that the Claimant was making back complaints back then long before the alleged December 1, 2011 injury. He did not believe it was contemporaneous with the time she left Hussmann. He testified that, "no, it was way before she left out of here." (Robertson deposition transcript page 13, line 18). Mr. Robertson stated that he did not recall a specific incident where the Claimant alleged injury to her back. (Robertson deposition transcript page 14, line 9)

The Claimant's current primary care physician is Dr. Stowell in Troy, MO. Prior to that, her primary care physician was Dr. Ann Hibbard in St. Peters, MO. The Claimant treated with Dr. Hibbard for 13 years. During that period of time, Dr. Hibbard prescribed pain medications for the Claimant's back.

The Claimant saw her primary physician, Dr. Hibbard, in November 2011, for COPD and anxiety. The Claimant renewed prescriptions of Vicodin and Xanax. There were notations in Dr. Hibbard's records that the Claimant was taking Xanax and Vicodin as early as October 12, 2010. There were also notations that Claimant had filled out FMLA paperwork for work on or around March 12, 2010. The Claimant testified that she was given two to three days off a month to deal with chronic migraine headaches.

The Claimant sought treatment from Dr. Ryan Eckman, a chiropractor, outside of Workers' Compensation. She was seen on December 23, 2011, with complaints of discomfort in the lumbosacral region. The history in Dr. Eckman's initial visit stated, "Brenda stated she repetitively lifts 150lb cases at work," and had seen Dr. Hibbard the week before. He diagnosed her with a muscle strain and prescribed Vicodin. She stated that she only got minimal relief from the medication. The Claimant continued to treat with Dr. Eckman up to January 14, 2013. Dr. Eckman's diagnosis was sciatica and lumbar spine degeneration. At that last appointment, Dr.

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Eckman noted that the Claimant was seeing a surgeon, Dr. Gornet, and that she was on prescription medications to keep her symptoms tolerable.

The Claimant sought treatment from Dr. Suresh Krishnan outside of Workers' Compensation. She first saw Dr. Krishnan on February 20, 2012, for the first time. Dr. Krishnan did not take a history of an injury occurring while working for Hussmann. He diagnosed Claimant with lumbar nerve root compression. He recommended an MRI and an epidural steroid injection. She was prescribed oral steroids for two weeks and returned to work full duty.

The Claimant sought treatment outside of Workers' Compensation from Matthew F. Gornet, M.D. at the Orthopedic Center of St. Louis. She was first seen on March 12, 2012. Her patient questionnaire and the history authored by Dr. Gornet, both, indicated her problem began in November 2011. Dr. Gornet reported that the Claimant related her pain to awkward lifting at work, but does not specify a specific incident. Dr. Gornet stated, "She is not reporting this as a Workers' Compensation issue." Dr. Gornet reviewed an MRI of January 20, 2012, and opined it revealed left-sided foraminal stenosis at L5-S1. He opined that was the main source of her pain and symptoms. Exhibit I. He released her to return to work on March 13, 2012, without restrictions.

Dr. Krishnan later administered transforaminal steroid injections on April 16, 2012, and May 14, 2012. Thereafter, she returned to Dr. Gornet on June 7, 2012. She had been in work hardening and using a decompression table. She later returned to Dr. Krishnan on July 19, 2012, for another injection. None of her treatment with Dr. Krishnan or Dr. Gornet was authorized by the Employer. The above-described treatment was provided before the Claim for Compensation was filed, and before the Employer had notice of the alleged injury according to the Employer's evidence.

On October 23, 2012, Dr. Krishnan examined the Claimant. She was noted to have a 25 percent improvement in pain complaints. Her main complaints were C4-6 tenderness on the left and lateral epicondylitis pain on the right. Her lumbar spine examinations showed multi-level degenerative changes, but was otherwise normal. Claimant's overall prognosis was "good." Exhibit 6. Dr. Eckman released Claimant from final treatment on January 21, 2013. Exhibit 7.

The Claimant was examined and evaluated by Robert P. Poetz, D.O. on behalf of her attorney on February 15, 2013. Dr. Poetz listed, as the history of primary injury, that the Claimant was in the process of lifting a refrigerator upright with another Employee when she developed a pulling sensation in her lower back that was followed by pain, which progressively

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worsened to the point that it was traveling into her torso and down to the left buttock and into her leg. He noted that the Claimant had a history of low back pain and sciatica with residual lumbar degenerative disc disease with bulging disc in 1979. He diagnosed her with a chronic lumbar strain with exacerbation of prior strain and lumbar degenerative disc disease with bulging disc occurring on December 1, 2011, as a result of the specific lifting incident as described in his report.

Dr. Poetz assigned a 20 percent disability to the body as a whole measured at the lumbar spine directly resulting from the December 1, 2011 injury. He assigned a 15 percent disability to the body as a whole measured at the lumbar spine as a result of the 1979 incident. He also noted pre-existing disabilities to the right upper extremity measured at the right elbow in 1993 for which he assigned a 25 percent disability. The doctor also stated that the Claimant had sustained a 15 percent permanent partial disability to the body as a whole measured at the left trapezius as a result of a 2001 work injury. Finally, he noted that the Claimant had sustained a 35 percent permanent partial disability to the upper left extremity as measured at the left shoulder as a result of a 2010 left shoulder injury and surgical procedure, which was claimed under Workers' Compensation.

Dr. Poetz concluded that the Claimant was permanently and totally disabled. He opined that she was permanently and totally disabled as a result of a combination of her December 1, 2011 work-related injury and her pre-existing conditions. He stated that as a result, she was unemployable in the open-labor market.

The Claimant was examined and evaluated by Patricia Hurford, M.D. on behalf of the Employer/Insurer. Dr. Hurford prepared a report dated September 28, 2015, regarding her examination of the Claimant at the Employer/Insurer's request. She was deposed on June 29, 2018, regarding the content of her report.

Dr. Hurford took a history from the Claimant about lifting an approximately 700 pound refrigeration case in December 2011. She noted that the Claimant reported going to a chiropractor for approximately one year and saw Dr. Gornet, who recommended surgery. She also recorded a history of the Claimant taking Gabapentin and Tramadol. She listed the Claimant's pain as a three out of ten. Dr. Hurford reviewed an MRI from January 20, 2012, which showed no disc desiccation, disc bulges, herniations, or significant central foraminal stenosis. On physical exam, she did not find any objective evidence of radiculopathy or muscle spasticity. She noted that the Claimant had chronic disability referable to the back and body due

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to pre-existing history of chronic recurring low back pain and sciatica. She related those complaints back to a 1979 lumbar spine injury.

After a comprehensive review of the records, Dr. Hurford's impression were there was no particular lifting injury or repetitive lifting activities given the initial treatment provided. She noted a history of prior left sciatica and low back symptoms going back to the mid-1990s. Dr. Hurford placed the Claimant at maximum medical improvement and did not recommend any additional medical treatment. Dr. Hurford assigned a 10 percent permanent partial disability to the body as whole as measured at the lumbar spine for pre-existing ongoing chronic low back pain and sciatica. She did not believe that any disability resulted from any alleged work accident or occupational/repetitive use injury.

Claimant submitted the expert testimony of Timothy G. Lalk, a vocational rehabilitation counselor. He prepared a vocational examination and assessment report on November 25, 2015. He concluded that the Claimant was unemployable in the open-labor market as a result of the December 1, 2011 incident, in conjunction with prior pre-existing conditions. He noted that the Claimant's education, age and experience would also create a hindrance to her further employment. Mr. Lalk testified that his opinion regarding disability, referable to the December 1, 2011, incident was contingent upon whether the incident actually occurred. He stated that it was not his job to determine whether an accident had occurred, but to assess whether Claimant was unemployable in the open-labor market assuming a certain set of facts.

Employer submitted the testimony of June Blaine, a vocation rehabilitation counselor. She prepared a report dated September 28, 2018. Ms. Blaine noted that the Claimant had prior injuries and surgeries, including the low back, right upper extremity, left trapezius, and left shoulder. She noted that the Claimant had been diagnosed with a low back strain in 1979, with a recurrence of problems in the 1990s. She noted that the Claimant underwent a right cubital tunnel and ulnar nerve decompression under Workers' Compensation in the past. She also reviewed records indicating that the Claimant had previously sustained a left trapezius strain and had undergone a left shoulder arthroscopic subacromial decompression with distal clavicle resection and debridement.

The Claimant was age 61 at the time of Ms. Blaine's evaluation. She had worked for Hussmann beginning in 1977. She had a tenth grade education and left school in 1973. She did not have a GED. Ms. Blaine also noted that the Claimant did not have any computer skills. She

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was able to use a cellphone and a computer for banking. However, she had no other administrative skills.

Based on the Claimant's age, education, work experience, and prior pre-existing medical conditions, it was concluded that the Claimant was unemployable in the open-labor market. Ms. Blaine stated that "I believe her chronic low back pain and issues, ulnar nerve and shoulder surgeries, pre-existed, and I believe these in combination with her December 1, 2011 injury make her unemployable in the open labor market."

The Claimant returned to work on March 13, 2012, following her first visit with Dr. Gornet. She later left her employment on July 6, 2012, after receiving an award of Social Security disability.

RULINGS OF LAW

Based upon the competent and substantial evidence, I find:

Claimant's testimony was inconsistent with the medical records and the witness testimony and therefore her testimony, is not credible. The following findings of fact are based on the hearing testimony of Ms. Sadler, Ms. Sadler's deposition testimony, medical records and the vocational reports/depositions of experts admitted into evidence.

Issue 1. Notice.

Section 287.420 states that notice must be given within 30 days of an accident, after which a claim is barred unless the Claimant can prove that the Employer was not prejudice by the lack of notice. Occupational diseases and repetitive trauma cases have to give written notice within 30 days of diagnosis of the condition or prove the Employer was not prejudiced.

Generally, pursuant to Section 287.808, the Employer has the burden of establishing any affirmative defense, which includes statutory notice of injury under Section 288.420. Section 287.808; see also Snow v. Hicks Bros. Chevrolet Inc., 480 S.W.2d 97, 100 (Mo.App.1972). However, once the Employer establishes lack of written notice or lack of timely written notice as required by Section 287.420, the burden shifts back to the Claimant. See Allcorn v. Tap Enter., Inc., 277 S.W.3d 823, 831 (Mo.App.S.D.2009) ("The final sentence of Section 287.420 saves a failed attempt at notice"). At that point, the Claimant must establish that his or her failure to give notice or timely written notice did not prejudice the Employer. Soos v. Mallinckrodt Chem. Co.,

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19 S.W.3d 683, 686 (Mo.App.E.D.2000). A Claimant can prove lack of prejudice in one of two ways.

First, if the Claimant proffers substantial evidence that the Employer had "actual knowledge" of the injury, there is no need for written notice. *Hall v. G.W. Fiberglass, Inc.*, 873 S.W.2d 297, 298 (Mo.App.E.D.1994). This option has been coined as the "prima facie" showing of no prejudice. *Willis v. Jewish Hosp.*, 854 S.W.2d 82, 85 (Mo.App.E.D.1993). Accordingly, if the Employer admits or the Claimant proffers substantial evidence demonstrating that the Employer had "actual knowledge of the accident at the time it occurred it has been held that Employer could not have been prejudiced by a failure to receive the statutory written notice, and compensation has been allowed." *Klopstein v. Schroll House Moving Co.*, 425 S.W.2d 498, 503 (Mo.App.1968) (emphasis added). Consequently, "if a Claimant makes a prima facie showing of no prejudice, the burden [again] shifts to the Employer to show prejudice." *Hannick v. Kelly Temp. Serv.*, 855 S.W.2d 497, 499 (Mo.App.E.D.1993).

Second, if the Employer does not admit actual knowledge and the Claimant does not present substantial evidence of the Employer's actual knowledge of the injury, the issue of notice becomes one of fact and the Claimant bears the burden of proving lack of prejudice. *Soos*, 19 S.W.3d at 686; *see also Farmer-Cummings v. Future Foam, Inc.*, 44 S.W.3d 830, 836 (Mo.App.W.D.2001) (written notice to the Employer of a work-related accident is not a prerequisite for recover where the Employer suffers no prejudice). Under this second option, "the Commission must hear evidence on the issue and the [Claimant] bears the burden of proof of lack of prejudice." *Pursifull v. Braun Plastering & Drywall*, 233 S.W.3d 219, 223 (Mo.App.W.D.2007). The Claimant must produce competent and substantial evidence that the Employer was not prejudiced by the lack of a timely notice in order to shift the burden, again, to the Employer. *Klopstein*, 425 S.W.2d at 503-04. If no such competent and substantial evidence is adduced, the Employer is presumed to have been prejudiced by the untimely notice of injury. *Soos*, 19 S.W.3d at 686.

A Claim for Compensation in Injury No. 11-110107 was filed with the Division of Workers' Compensation on July 9, 2012. The First Report of Injury was prepared by Hussmann

1 This case was overruled, on an unrelated issue, by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 224-32 (Mo. banc 2003). Said case does not, otherwise, conflict with *Hampton* and is cited for legal principles unaffected thereby; thus, I will not further note *Hampton's* effect thereon.

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on July 16, 2012. The Employer provided evidence that they were not previously provided with notice of the accident.

I find that Claimant has failed to prove notice with substantial evidence. The credible evidence establishes employer did not receive notice until July 9, 2012, over six months after the alleged date of injury. The Claimant argued that notice was provided to the Employer when she allegedly initially reported the lifting accident and injury to Mr. Robertson and Mr. Besancenez. I do not find the Claimant's testimony, with respect to notice, to be credible. It is a direct contradiction to the deposition testimony of, both, Mr. Robertson and Mr. Besancenez, and is also inconsistent with Claimant's own testimony, that she did not want to pursue the case under Workers' Compensation and did not want her Employer to direct her care. Furthermore, the claim of notice is inconsistent with the records of Claimants March 12, 2012 consultation with Dr. Gornet. Those records clearly state "She is not reporting this as a Workers' Compensation issue". Dr. Gornet's records support the testimony of, both, Claimants' coworker, Mr. Robertson, and supervisor, Mr. Besancenez.

Because Employer does not admit actual knowledge, and the Claimant does not present substantial evidence of the Employer's actual knowledge of the injury, Claimant must prove a lack of prejudice by competent and substantial evidence. Claimant has failed to present any evidence to support a lack of prejudice to Employer and therefore, Employer is presumed to be prejudiced by the untimely notice of the accident. Furthermore, Employer has been actually prejudiced by its inability to control medical treatment due to Claimants unreliable testimony.

Even if a specific accident occurred, I find the Employer was not properly notified of the Claimant's alleged work-related accident or injury until a Claim was filed on July 9, 2012. On the grounds that Claimant has failed to present any credible evidence to support a lack of prejudice to Employer, I further find the Employer was prejudiced by the lack of notice.

Issue 2. Was there an accident arising out of and in the course and scope of employment on December 1, 2011.

Section 287.020.2 states that the word "accident" as used in this chapter shall refer to, "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

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The Claimant has not met her burden of proof that she sustained an accident arising out of and in the course and scope of her employment on or about December 1, 2011. Ms. Sadler testified at the hearing that she could not remember the specific date of her injury, it could have been in November or December. However, no specific incident of any date is borne out by the medical records. She testified that the date of December 1, 2011, was a date assigned by the Division.

The Claimant testified to a specific lifting event, wherein she lifted a refrigeration unit with the help of Mr. Robertson, and that she had notified her supervisor, Tom Besancenez, of the incident when it occurred. Both of those allegations are directly contradicted by evidence from the Employer. The depositions of both witnesses were taken at the request of Claimant's counsel. Neither witness recalled a specific lifting event causing injury to the Claimant's lumbar spine, in December of 2011. Instead, they had knowledge of longstanding, pre-existing back pain suffered by the Claimant. Further, Mr. Besancenez had not filed a Report of Injury on or around December 1, 2011, which he testified was his responsibility whenever a work-related injury was reported.

The Claimant sought treatment on her own with Dr. Hibbard, Dr. Eckman, and Dr. Gornet. None of those records mention a specific lifting incident or provide a medical causation opinion. The records of Dr. Gornet further indicated that "She is not reporting this as a Workers' Compensation issue", which is consistent with her Mr. Robertson and Mr. Besancenez testimonies that no injury was reported to them. The records of the Claimant's primary care physician, Dr. Hibbard, did not describe any mechanism of injury. The records of Dr. Eckman stated that the Claimant lifted refrigeration cases at work in a general sense, but there was no specific injury identified.

While Dr. Robert P. Poetz concluded, based on the Claimant's unreliable report to him, that she sustained injury to the lumbar spine causing a disc bulge on or about December 1, 2011, due to a specific lifting event. I find it significant that Dr. Poetz exam occurred on February 15, 2013, after a Claim had been filed alleging a specific injury on December 1, 2011. There is no credible evidence in the record that identifies a specific lifting event prior to the filing of the Claim on July 9, 2012.

I find Dr. Gornet's records compelling. On March 12, 2012, the issue of whether the problems for which Claimant was treating was related to a Workers' Compensation matter was

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directly addressed. Those records clearly indicate that "she is not reporting this as a Workers' Compensation Claim."

Claimant, by her own testimony, was familiar with the process of pursuing a Workers' Compensation Claim. Further, knowledge of the process of pursuing a Workers' Compensation Claim can be inferred by Claimant's history of prior Workers' Compensation Claims, for which she retained counsel. I find that the Claimant has not established that she sustained a work-related injury by accident while working for the Employer on December 1, 2011, or during a specific work shift on or around that date.

The issue of permanent partial or permanent total disability is moot, since I find no compensable work-related injury has been proven by Claimant and that, even if a compensable work-related injury had been proven by Claimant, Employer was not properly notified and was prejudiced by the lack of proper notice.

The Claim against the Second Injury Fund is denied, since I find no compensable work-related injury has been proven by the Claimant and that, even if a compensable work-related injury had been proven by Claimant, Employer was not properly notified and was prejudiced by the lack of proper notice.

The issue of future medical is moot, since I find no compensable work-related injury has been proven by Claimant and that, even if a compensable work-related injury had been proven by Claimant, Employer was not properly notified and was prejudiced by the lack of proper notice.

Therefore, based on the evidence, the Claims are denied.

I certify that on 11-25-19 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

WC-32-R1 (6-81)

By __________________________

Made by __________________________

Jain A. Levy

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Jason A. Tilley

Administrative Law Judge

Division of Workers' Compensation