FINAL AWARD DENYING COMPENSATION - Missouri … · FINAL AWARD DENYING COMPENSATION ... Sonoco Products Company ... because he received short term disability and he had discussions

ssued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 12-106559

Employee: Henry L. Chester Employer: Sonoco Products Company Insurer: Ace American Insurance Company 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 January 11, 2017, and awards no compensation in the above-captioned case. The award and decision of Administrative Law Judge Robert B. Miner, issued January 11, 2017, is attached and incorporated by this reference. Given at Jefferson City, State of Missouri, this 8th day of September 2017. LABOR AND INDUSTRIAL RELATIONS COMMISSION John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Issued by DIVISION OF WORKERS' COMPENSATION Re: Injury No.: 12-106559 Employee: Henry L. Chester

WC-32-R1 (6-81) Robert B. Miner, ALJ Page 1

AWARD

Employee: Henry L. Chester Injury No.: 12-106559 Employer: Sonoco Products Company Additional Party: None Insurer: Ace American Insurance Company Hearing Date: October 19, 2016 Checked by: RBM

FINDINGS OF FACT AND RULINGS OF LAW 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: June 5, 2012. 5. State location where accident occurred or occupational disease was contracted: Alleged: Chillicothe, Livingston County, Missouri. 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? Employee failed to prove he sustained an accident or occupational disease arising out of and in the course of the employment. 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 injured his back while lifting bags. 12. Did accident or occupational disease cause death? No.

Before the Division of Workers’

Compensation Department of Labor and Industrial

Relations of Missouri



13. Part(s) of body injured by accident or occupational disease: Alleged: back. 14. Nature and extent of any permanent disability: Not determined. 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. Employee's average weekly wages: $921.82. 19. Weekly compensation rate: $614.55 for temporary total disability and $425.19 for permanent partial disability. 20. Method wages computation: By agreement of the parties. COMPENSATION PAYABLE

21. Amount of compensation payable: None. Employee’s entire claim against Employer and Insurer is denied. 22. Second Injury Fund liability: None. No claim was made against the Second Injury Fund. 23. Future requirements awarded: None. No attorney fee is awarded to claimant.



FINDINGS OF FACT and RULINGS OF LAW:

Employee: Henry L. Chester Injury No.: 12-106559 Employer: Sonoco Products Company Additional Party: None Insurer: Ace American Insurance Company Hearing Date: October 19, 2016 Checked by: RBM

PRELIMINARIES

A final hearing was held in this case on October 19, 2016 in Chillicothe, Missouri on Employee’s claim against Employer. Employee, Henry L. Chester, appeared in person and by his attorney, Daniel P. Dennis. Employer, Sonoco Products Company, and Insurer, Ace American Insurance Company, appeared by their attorney, Thomas V. Clinkenbeard. The Second Injury Fund is not a party in this case. Daniel P. Dennis requested consideration of his attorney fee be deferred. It was agreed that post-hearing briefs would be due on November 29, 2016.

STIPULATIONS

At the time of the hearing, the parties stipulated to the following:

1. On or about June 5, 2012, Henry L. Chester (“Claimant”) was an employee of Sonoco Products Company (“Employer”) and was working under the provisions of the Missouri Workers’ Compensation Law.

2. On or about June 5, 2012, Employer was an employer operating under the provisions of the Missouri Workers’ Compensation Law and was fully insured by Ace American Insurance Company (“Insurer”).

3. Claimant’s Claim for Compensation was filed within the time allowed by law.

4. The average weekly wage was $921.82, the rate of compensation for temporary total disability is $614.55 per week, and the rate of compensation for permanent partial disability is $425.19 per week.

5. No compensation has been paid by Employer/Insurer for temporary disability.

Before the Division of Workers’

Compensation Department of Labor and Industrial

Relations of Missouri



6. No medical aid has been paid or furnished by Employer/Insurer. 7. Any Award in favor of Claimant is subject to outstanding child support liens.

ISSUES

The parties agreed that there were disputes on the following issues: 1. Did Claimant sustain an injury by accident arising out of and in the course of his employment for Employer on or about June 5, 2012? 2. Is Claimant’s current condition medically causally related to the alleged work injury of June 5, 2012? 3. What is Employer’s liability, if any, for additional medical aid? 4. Did Claimant provide notice of his alleged accident as required by law? Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection: 1—MRI report dated July 18, 2012 2—Sonoco Plastics Absence Detail 3—Separation Notice dated 7-31-13 Lovell Mentzer and Denise Belcher testified on behalf of Employer. In addition, Employer offered the following exhibits which were admitted in evidence without objection: C—Color photographs D—Color photographs E—Employment records F—Deposition of Troy Bennett Court’s Exhibit 1, Missouri Department of Social Services Statement of Arrears and Notices of Lien on Workers’ Compensation Benefits, was admitted in evidence without objection. This case was set for final hearing based on Employer’s attorney’s Request for Hearing—Final Award filed in this case. At the beginning of the hearing, Claimant’s attorney orally requested the Court determine Claimant’s request for additional medical



aid. The attorneys agreed that if the Court finds Claimant did not prove he sustained a compensable injury by accident arising out of and in the course of employment, a final award would be issued, but if Claimant proved he sustained a compensable injury by accident arising out of and in the course of employment, and proved he needed additional medical treatment due to a compensable accident, a temporary award would be issued.

Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

The Post-Hearing briefs have been considered. Findings of Fact

Claimant testified that in mid-June 2012, he was working for Employer dumping bags. Employer makes plastic TV trays. Claimant was trying to keep up with the line when he felt something pop in his back. He alleged that the accident occurred on June 5, 2012 while lifting bags weighing between 50 and 100 pounds. He had pain while lifting. He testified he lifted fifty and seventy-five bags before the pain started. He thought he strained a muscle. He got some icy hot. He got worst each day after that.

Claimant did not think much of it at the time. He did not report it to a supervisor

at the time because he did not think much about it Claimant testified he went to a doctor because his legs were going out and

sometimes got numb. He sometimes got pain that felt like bone on bone. The doctor ordered an MRI of Claimant’s lower back. An MRI was done on July 18, 2012.

Claimant did not take time off work for a health-related injury prior to June 2012.

Claimant took vacation days at the end of the year in 2012.

Claimant testified he notified his supervisor regarding his back injury when he realized he was not getting any better, and he was given time off for sick leave on June 10, 2013. Claimant then took some short term leave in June 2013. His legs were going out then. Employer gave him time off work for about six weeks in 2013. He went to a doctor and had nine epidural shots in 2013, three series of three shots. The first three shots helped, but the others did not help.

Claimant testified that he was arrested on July 21, 2013 and incarcerated until November 13. He was terminated by Employer in mid July 2013. Exhibit 3 is a Separation Notice dated July 31, 2013 relating to his termination. Claimant had been out



on FMLA and was to have returned to work on July 29, 2013. However, he did not return to work then because he was in jail.

Claimant has not worked any where since his termination. He testified that he is

on disability from the State of Missouri. He testified that he has not improved since June 2012.

Claimant has had no treatment for his back other than the MRI, epidurals, pain

pills, and back braces. He had not had any physical therapy. Claimant testified surgery on his low back was recommended in 2015, but surgery

could not be done because of his heart. No other treatment was recommended for him after the July 2012 MRI besides an epidural and surgery.

Claimant testified he believed he notified Employer that he had injured his back.

He testified that he had walked around hobbling for five to six months and he talked to his supervisors about hobbling. He said he thought he had done whatever was required of him. He testified he assumed his injury had been reported to Workers’ Compensation because he received short term disability and he had discussions weekly with the HR lady. He does not know why a Workers’ Compensation Report of Injury was not made to the State.

Claimant testified his back pain has worsened. The pain is relieved by moving

around. He is not able to stand for more than twenty to thirty minutes. He testified a doctor gave him restrictions of no lifting. He testified he could not do a lot of walking. He could not work for Employer. He sees a doctor once a month. He is trying to get his heart issue straightened out.

Claimant testified that Troy Bennett was his floor supervisor and Lavelle Mentzer was supervisor of his department.

Claimant testified on direct examination that he never had back pain before the June 2012 injury. He stated that he never had treatment with a chiropractor before then. Claimant testified on cross examination that he saw a chiropractor at Cole Family Chiropractic Clinic, and the first appointment may have been on March 9, 2012. He told them then he had right hip and low back pain.

Claimant took a day off to go to a chiropractor after June 2012. He went for a

wellness exam and stretched his back one time. The first doctor Claimant saw was Dr. Chris Hulett, who he saw before December 12, 2012 for blood pressure.



Claimant admitted he did not report to his supervisor at the time of the injury. Claimant agreed that by August 2012, he had not told anyone at Employer that his back pain was work-related. He said he was trying to take care of it himself.

Claimant continued to work regular duty after June 5, 2012 until the last day he worked for Employer. He said his condition worsened as he continued to work. He understood that he should report injuries as soon as possible to Employer. He agreed during the hearing that he testified in his deposition that he did not report his injury was work related after he was terminated.

Claimant agreed that he applied for short term disability. He had Dr. Boulware

submit the short term disability paperwork. Claimant received short term disability benefits. He applied for unemployment compensation and represented that he was capable of working.

Claimant testified that he reported his work injury to Troy Bennett, Lavelle

Mentzer, Robert Buchanan, Plant Manager, Denise Belcher, HR, all on the same day in 2013.

Claimant’s credibility will be addressed later in this Award.

Testimony of Lovell Mentzer

Lovell Mentzer testified on behalf of Employer. He has been with Employer for

fourteen years. He is Process Engineer and he had that position in June 2012. He knew Claimant. Claimant reported to him in 2012. He was Claimant’s supervisor.

Mr. Mentzer worked Monday through Friday. He and Claimant worked some on

the same days. They crossed paths three to four times a day. Mr. Mentzer testified that Claimant never reported to him that he had injured

himself on the job.

Mr. Mentzer is certain that Claimant did not report a work injury to him. Employer has a form to fill out if there is a work injury. Mr. Mentzer was familiar with the form. Mr. Mentzer testified that he never declined to initiate the Workers’ Compensation process in this case. He never filled out an accident report for Claimant in this case because Claimant never reported a work injury.

Mr. Mentzer identified photographs in Exhibits C. The both show signs that state:

“ON THE JOB SAFETY BEGINS HERE THIS PLANT HAS WORKED 0081 DAYS WITHOUT AN OSHA RECORDABLE INJURY ACCIDENTS ARE AVOIDABLE.”



The photos in Exhibit C are of the employee entrance where employees suit up and enter and leave the building. Mr. Mentzer testified employees cannot walk in and out of the building without seeing the signs shown in Exhibit C. Those signs were present in 2012. Mr. Mentzer testified safety is number one at Employer and is a high priority at Employer.

Mr. Mentzer was familiar with Claimant’s duties on June 5, 2012. Claimant

worked with bags that weighed fifty pounds. Claimant worked with a small percentage of samples. Claimant would have handled around ten bags.

Mr. Mentzer identified photographs in Exhibit D which are photographs of

Employer’s production line mezzanine, control extruder, power conversion control, and other parts of machinery. Mr. Mentzer testified that 98 to 99 percent of Employer’s operation is automated. Claimant monitored the machines. The photos in Exhibit D reflect the condition of the plant in 2012 in the area where Claimant worked.

Mr. Mentzer became aware of Claimants’ back problems after Claimant left

employment with Employer. Mr. Mentzer never became aware of anything that would trigger a report. Claimant never came to him about it. Claimant never asked Mr. Mentzer to have a report made about his back. Mr. Mentzer testified he was not aware of Claimant limping or grimacing in late 2012 and 2013.

I find Lovell Mentzer’s testimony to be credible.

Testimony of Denise Belcher

Denise Belcher testified on behalf of Employer. She works in HR and takes care

of hiring, payroll, workers’ compensation, and safety. She is involved in on-the-job injuries. Safety is a high priority for Employer. Employees receive a lot of training in safety. An on-the-job injury is to be reported within one hour to a supervisor no matter how minor the injury. The supervisor is then to have the employee do an incident report.

Ms. Belcher knows Claimant. She was the HR Director in 2012. Employer has a

new-hire orientation during which employees receive a handbook. Claimant signed for an employee handbook in February 2010. It includes Safety Core Values. They state all injures are to be reported within one hour. Claimant signed a Safety Core Value Sheet on January 17, 2012 and on February 2, 2013.

Injury reports are sent to Ms. Belcher the same day or the next day. She never received an injury report of Claimant regarding a June 2012 injury. She does not believe there was one. She does not believe Claimant reported an injury.



Ms. Belcher is aware of short term disability for Employer. She initiates that process. Regroup is Employer’s short term disability provider.

Ms. Belcher assisted Claimant in 2013 regarding short term disability paperwork.

She sent FMLA paperwork to his doctor and told Claimant who to call. Short term disability benefits are Employer’s money.

Claimant’s short term disability application dated June 20, 2013 includes Dr.

Robert Boulware’s questionnaire. One question asks if the reason for the application was due to an injury from employment, and the answer was “No.” If the word “Yes” had been written, Claimant would not have been eligible for short term disability. Short term disability is not available for on-the-job injuries. The condition stated on the form was high blood pressure and spinal stenosis. Claimant received short term disability from June 12, 2013 to July 25, 2013. Short term disability would not have been paid if there had been an on-the-job injury.

On July 26, 2013, Claimant would either need to request an extension or return to

work. Claimant was terminated for failure to return to work from medical leave. Ms. Belcher testified that Claimant never notified her that he was unable to work due to back pain.

Claimant had no absences from work in 2012. Employer’s records show that in

2013, Claimant left early on some days, and on others, he overslept. He missed one day for personal reasons. Nothing is noted in the attendance records regarding Claimant’s back.

Ms. Belcher testified that Claimant never reported to her that he injured himself on

the job. He never told her that he had an on-the-job injury when he was requesting short term disability.

Ms. Belcher did not recall a meeting on June 2013 with her, Claimant, Bob

Buchanan, and Lovell Mentzer. She testified that Employer never received notice of Claimant’s alleged on the job injury.

Ms. Belcher testified that Employer was prejudiced by lack of receiving notice of

an alleged injury by Claimant. If Employer had notice of an alleged work injury, they would have done an investigation. They would have had a medical evaluation done even if they did not believe Claimant was injured on the job.

Claimant was never on light or restricted duty after June 2012. Employer never

sent Claimant to a doctor for an evaluation because Employer had no notice of an alleged



injury. Employer had accommodated work that would have been available to Claimant if a doctor had issued restrictions.

Ms. Belcher identified Exhibit E, Employer records. Exhibit E includes a Receipt

of Employee Handbook signed by Claimant and witnessed on 2-25-10, Sonoco Plastics Near Miss/Significant Incident Report regarding a Date of Incident of 3-26-12 regarding a forklift clipping a support beam, and Safety Core Values sheets signed by Claimant and dated 1-17-12 and 2-2-13. The Safety Core Values sheets both state in part: “1. All injuries and incidents, no matter how minor including property damage, will be reported to the immediate supervisor within 1 hour of the incident.”

Ms. Belcher testified Employer denies that Claimant was injured as he alleges, and

denies Employer received notice of an alleged injury. Ms. Belcher knew Claimant. He had reported another issue. Employer has a Near Miss Report. It shows on March 27, 2012, Claimant reported an incident with an additive bin and a forklift. She believes Claimant would not have been reticent about reporting a problem. I find Ms. Belcher’s testimony to be credible.

Deposition Testimony of Troy Bennett

Employer offered Exhibit F, the Deposition of Troy Bennett taken on October 17, 2016. Mr. Bennett testified that he worked for Employer for a little over eight years until 2014. (Bennett deposition, page 6). He was Production Supervisor when he left Employer and also in 2012 and 2013. He was familiar with Claimant. Claimant worked on his shift as a process technician. Id. at 6. They worked the same shift and crossed paths throughout the day. Id. at 7.

When Mr. Bennett worked for Employer, Employer had established procedures

about how and when on-the-job injuries were to be reported. Mr. Bennett testified that any injury, no matter how minor or how big, was to be documented and reported and given to management as soon as possible. Id. at 7. Mr. Bennett testified that Claimant never reported to him that he had sustained an on-the-job injury to his back while working at Employer. If Claimant had reported an injury, Mr. Bennett would have to report it and get the details and get them to the Plant Manager or HR. Id. at 8.

Mr. Bennett was told during his deposition that Claimant alleged he injured his

back while lifting at Employer on June 5, 2012. Mr. Bennett testified Claimant never reported to him that he injured his back on June 5, 2012 while lifting at Employer. If Claimant did, Mr. Bennett would have documentation on it. Id. at 8. Mr. Bennett did not believe that it happened because he would have had that either in a memo or a document



that he would have sent out. Id. at 11. Mr. Bennett was not aware of an accident report on Claimant.

Mr. Bennett had never declined to complete reports of alleged on-the-job injuries

for anybody. Id. at 8. Mr. Bennett testified he would have to fill out a form if Claimant reported an on-the-job injury even if Mr. Bennett did not believe Claimant. Page 9.

Mr. Bennett was not aware that Claimant was experiencing back pain. Mr.

Bennett did not remember Claimant complaining to him about his back. Claimant could have complained, but Mr. Bennett did not remember. Id. at 10.

Claimant had an employee handbook that would have had the procedures for a

work injury and notice on how to report a work injury. Id. at 10. I find Mr. Bennett’s testimony to be credible.

Other Exhibits

Exhibit 1 is an MRI Report of Claimant’s lumbar spine dated July 18, 2012 of Hedrick Medical Center. The report states the Admitting Diagnosis is: “PAIN WITH DJD.”1 The MRI Report notes in part: “Indication: Low back pain with right lower extremity radiculopathy.” The MRI Report notes minimal broad-based disc bulging at L2-L3 and central canal stenosis at L3-L4 and L4-L5. The MRI Report also notes: “Impression: Multilevel spondylosis2 with the changes being most prominent at the L3-L4 levels. There is severe right-sided neuroforaminal narrowing at the L4-L5 level on the right.” Exhibit 2, Employer’s Absence Detail for Claimant for 2012, does not show Claimant missed any time from work due to injury. Exhibit 3, Separation Notice dated 7-31-13, states the reason for Claimant’s separation from Employer was: “Did not Return to work on 7-29-13 or 7-30-13. Henry’s next scheduled shift. Henry was a no call both days.” Rulings of Law

1 “DJD” is an abbreviation for “degenerative joint disease.” Stedman’s Medical Dictionary (28th Edition). 2 “Spondylosis” is defined as “Ankylosis of the vertebra; often applied nonspecifically to any lesion of the spine of a degenerative nature.” “Ankylosis” is defined as “Stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint; fusion.” Stedman’s Medical Dictionary (28th Edition).



Based on the substantial and competent evidence, the stipulations of the parties, and the application of the Workers’ Compensation Law, I make the following Rulings of Law: 1. Did Claimant sustain an injury by accident arising out of and in the course of his employment for Employer on or about June 5, 2012? 2. Is Claimant’s current condition medically causally related to the alleged work injury of June 5, 2012? 3. What is Employer’s liability, if any, for additional medical aid? Section 287.800, RSMo3 provides in part that administrative law judges shall construe the provisions of this chapter strictly and shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

Section 287.808, RSMo provides:

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

Section 287.020.2, RSMo provides:

The word ‘accident’ as used in this chapter shall mean 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. An injury is not compensable because work was a triggering or precipitating factor.

Section 287.020.3, RSMo provides in part:

3 All statutory references are to RSMo 2006 unless otherwise indicated. In a workers’ compensation case, the statute in effect at the time of the injury is generally the applicable version. Chouteau v. Netco Construction, 132 S.W.3d 328, 336 (Mo.App. 2004); Tillman v. Cam’s Trucking Inc., 20 S.W.3d 579, 585-86 (Mo.App. 2000). See also Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo.App. 2007).



3. (1) In this chapter the term ‘injury’ is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. ‘The prevailing factor’ is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. (2) An injury shall be deemed to arise out of and in the course of the employment only if: (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. (3) An injury resulting directly or indirectly from idiopathic causes is not compensable. (5) The terms ‘injury’ and ‘personal injuries’ shall mean violence to the physical structure of the body. . . .

Section 287.020.10, RSMo provides:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of ‘accident’, ‘occupational disease’, ‘arising out of’, and ‘in the course of the employment’ to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

The workers' compensation claimant bears the burden of proof to show that her

injury was compensable in workers' compensation. Johme v. St. John's Mercy Healthcare, --- S.W.3d ----, 2012 WL 1931223 (Mo.) (citing Sanderson v. Producers Comm'n Ass'n, 360 Mo. 571, 229 S.W.2d 563, 566 (Mo. 1950).

“In a workers' compensation case, the claimant carries the burden of proving all essential elements of the claim.” Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo.App. 1990), overruled in part on other grounds by Hampton v. Big Boy Steel



Erection , 121 S.W.3d 220, 230 (Mo.banc 2003)4. The employee must establish a causal connection between the accident and the claimed injuries. Thorsen v. Sachs Elec. Co., 52 S.W.3d 616, 618 (Mo.App.2001); Williams v. DePaul Ctr, 996 S.W.2d 619, 625 (Mo.App. 1999); Decker v. Square D Co., 974 S.W.2d 667, 670 (Mo.App. 1998); Fischer, 793 S.W.2d at 198. The testimony of Claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of disability when taken in connection with or where supported by some medical evidence. Pruteanu v. Electro Core, Inc., 847 S.W.2d 203, 206 (Mo.App. 1993), 29; Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo.App 1992); Fischer, 793 S.W.2d at 199. The trier of facts may also disbelieve the testimony of a witness even if no contradictory or impeaching testimony appears. Hutchinson, 721 S.W.2d at 161-2; Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo.App. 1980). The testimony of the employee may be believed or disbelieved even if uncontradicted. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo.App. 1993).

The Court in Knipp vs. Nordyne, Inc., 969 S.W.2d 236 (Mo.App 1998), states at 239:

Mrs. Knipp is correct that expert medical testimony is not necessary to establish the cause of an injury if causation is a matter within the understanding of lay persons. Quilty v. Frank’s Food Mart, 890 S.W.2d 360, 364 (Mo.App.1994). If medical causation is not within common knowledge or experience, however, then:

an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. When the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor—in the absence of expert opinion—is the finding of causation within the competency of the administrative tribunal.

4Several cases are cited herein that were among many overruled by Hampton on an unrelated issue (Id. at 224-32). Such cases do not otherwise conflict with Hampton and are cited for legal principles unaffected thereby; thus Hampton's effect thereon will not be further noted.



Silman v. William Montgomery & Assoc., 891 S.W.2d 173, 175–76 (Mo.App.1995) (citations omitted). See also Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo.App.1991).

The employee must prove beyond speculation and by competent and substantial

evidence that his or her work related injury is in need of treatment. Williams v. A.B. Chance Co., 676 S.W.2d 1 (Mo.App. 1984). Future medical care must flow from the accident, via evidence of a medical causal relationship between the condition and the compensable injury, if the employer is to be held responsible. Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 83 (Mo.App. 2006). Once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id; Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 519 (Mo.App. 2011). Claimant alleges he sustained an injury to his back by accident in association with a specific act of heavy lifting allegedly taking place on June 5, 2012. He requests an Award for medical treatment for his alleged injury. His proof of accident is limited to his own subjective testimony. He produced no contemporaneous medical records supportive of or consistent with this history, nor was it corroborated by any co-workers or eyewitnesses. His sole medical exhibit is an MRI report of the lumbar spine dated July 18, 2012, which shows no history of an on-the-job injury, which was interpreted to show spondylosis, a degenerative condition, and disc bulging and neuroforaminal narrowing, and which does not mention an acute injury. On cross-examination, Claimant admitted he had seen a chiropractor for right hip and low back pain, and the first appointment may have been on March 9, 2012.

Claimant testified surgery on his low back was recommended in 2015, but surgery could not be done because of his heart. If Claimant is to be believed, therefore, he is describing a scenario similar to Knipp, supra, in that he raises the issue of a sophisticated medical diagnosis for which surgery was considered. This necessarily removes the medical condition from the realm of lay understanding and makes it imperative that Claimant provide the Court with qualified expert opinion not only as to medical diagnosis and causation, but also as to the prevailing factor.

Claimant’s sole medical exhibit provides no such opinions. The evidence contains no medical opinion that Claimant needs additional treatment or that any need for medical treatment is the result of a work injury. There are no medical notes, medical reports, or medical deposition testimony containing such an opinion.

The record is totally devoid of any foundation that would allow this Court to conclude that the conditions identified in the MRI report are causally related to the



alleged on-the-job injury or that the alleged injury is the prevailing factor in the resulting medical condition. In the absence of this evidence, the Court is left to speculate.

Claimant has the burden to prove he sustained a compensable injury. I find and conclude that Claimant failed to meet his burden of proof that he sustained a compensable injury in this case. I find and conclude that Claimant failed to sustain his burden of proof that on or about June 5, 2012, he sustained an injury by accident arising out of and in the scope and course of his employment for Employer. I find and conclude that Claimant failed to prove that work was the prevailing factor in the cause of an injury and resulting medical condition. I find and conclude Claimant failed to prove that his low back condition is medically causally related to a work accident. I find and conclude that Claimant failed to prove that work was the prevailing factor in the cause of any disability.

Claimant also has the burden of proof based upon reasonable degree of medical

certainty that the need for treatment flows from the work accident. Such evidence was not presented in this case.

I find and conclude Claimant has failed to prove that he needs additional treatment

to cure or relieve him of the effects of his alleged June 5, 2012 accident. I find and conclude Claimant failed to prove he sustained an accident that was the prevailing factor in causing an injury to his back resulting in a present need for medical treatment. I find and conclude that Claimant did not show a reasonable probability that, because of a compensable work injury, additional medical treatment is necessary. I find and conclude Claimant failed to prove that he has a need for treatment for his back due to an injury that arose out of and in the course of employment for Employer. I deny Claimant’s request for additional medical treatment. I deny Claimant’s claim against Employer. 4. Did Claimant provide notice of his alleged accident as required by law? Section 287.420, RSMo provides:

287.420. No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no



later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

The Court in Aramark Educational Services, Inc. v. Faulkner, 408 S.W.3d 271 (Mo.App. 2013) states at 275-76:

The purpose of Section 287.420 ‘is to give the employer timely opportunity to investigate the facts surrounding the accident and, if an accident occurred, to provide the employee medical attention in order to minimize the disability.’ Doerr v. Teton Transp., Inc., 258 S.W.3d 514, 527 (Mo.App.S.D.2008); see also Messersmith v. Univ. of Mo.-Columbia/Mt. Vernon Rehab. Ctr., 43 S.W.3d 829, 832 (Mo. banc 2001).FN2

FN2. We cite several cases herein that were among many overruled by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224–32 (Mo. banc 2003). Such cases do not otherwise conflict with Hampton and are cited for legal principles unaffected thereby; thus, we will not further note Hampton's effect thereon. [5] [6] 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., 19 S.W.3d 683, 686 (Mo.App.E.D.2000).FN3 A claimant can prove lack of prejudice in one of two ways. FN3. The “good cause” excuse for failure to provide timely notice was eliminated by the legislature in 2005 by S.B. 130 (2005). See S.B. 130 (2005); Compare Section 287.420 (2013) with Section 287.420 (2004). [7] 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 *276 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). [8] [9] [10] 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.

Before the enactment of the 2005 Amendments to the Workers’ Compensation Law, Section 287.420, RSMo provided:

No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and name and address of the person injured, have been given as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to receive the notice. No defect



or inaccuracy in the notice shall invalidate it unless the commission finds the employer was in fact misled and prejudiced thereby.

Section 287.420, RSMo in effect on the date of Claimant’s alleged injury does not have a “good cause” excuse for failing to provide notice as the earlier version of the statute does. An employee’s failure to comply with the notice provision of the new law will not be excused even if he had good cause for failing to do so. The Court in Seyler v. Spirtas Indus., 974 S.W.2d 536 (Mo.App. 1998) states at 538:

If the claimant has not provided employer written notice within thirty days of the accident, the claimant bears the burden of demonstrating that the employer was not prejudiced by the claimant's failure to provide notice. Willis v. Jewish Hospital, 854 S.W.2d 82, 85 (Mo.App.1993).

See also Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683, 686 (Mo.App. 2000); Klopstein v. Schroll House Moving Co., 425 S.W.2d 498, 504 (Mo.App.1968). The Seyler Court continues at 538:

The purpose underlying the notice requirement is twofold. First, the notice requirement is designed to ensure that the employer will be able to conduct an accurate and thorough investigation of the facts surrounding the injury. Id. The second purpose of the notice requirement is to ensure that the employer has the opportunity to minimize the employee's injury by providing prompt medical treatment. Id. Thus, in cases where the employer does not have actual notice of the accident, courts have examined whether the claimant has proffered evidence on both the employer's ability to investigate the accident and the minimization of the employee's injury in determining whether the employer was prejudiced by the claimant's failure to provide written notice. See Id.; Klopstein v. Schroll House Moving Co., 425 S.W.2d 498, 504-05 (Mo.App.1968).

See also Willis v. Jewish Hosp., 854 S.W.2d 82, 84 (Mo.App. 1993).

The Seyler Court continues at 539:

The only evidence produced below relating to the minimization of claimant's injuries suggests that claimant's injuries became



progressively more severe after the accident. Based on this record, we find that claimant failed to demonstrate that his failure to provide written notice did not hinder employer's ability to minimize his injury by providing medical treatment. See Klopstein, 425 S.W.2d at 505.

Claimant does not claim that he provided written notice of his alleged injury to

Employer, and there is no evidence that he did. He does not claim to have provided any type of report with specificity prior to the departure from the work force in June 2013. Claimant has a burden of proving lack of prejudice under these circumstances, yet he offered no testimony, exhibits, or even cross-examination of Employer’s witnesses for this purpose. Employer offered both verbal and photographic evidence of the safety awareness program at Employer and the manner in which on-the-job injuries are reported and investigated. Visitors to the plant are greeted with a visual display in the reception area, showing the duration of Employer’s ongoing record for an accident-free work place. Employees walk past an identical sign upon entering and leaving the plant. Claimant had received orientation regarding the time and manner in which on-the-job injuries were to be reported. It was established that in March 2012, he himself had completed a “Near Miss” report, which is part of the same process. Claimant identified Troy Bennett as being his immediate supervisor at the time of the alleged injury. He alleges that Mr. Bennett was aware of his ongoing issues with back pain and that they were related to an on-the-job event, although he did not provide details as to the date and contents of any such conversation. Mr. Bennett testified by deposition and confirmed that he no longer works for Employer and is now employed in the Branson, Missouri area. I find Mr. Bennett credibly denied ever receiving any type of verbal injury report from Claimant. Mr. Bennett credibly testified that had that information been received, he would have immediately initiated the formal reporting process. Lovell Mentzer was the shift manager for Claimant’s work schedule. He, too, credibly denied receiving any type of verbal report from Claimant regarding an on-the-job injury in June 2012. He also credibly stated that had that information been received, the notification process would have been immediately initiated. Both he and Mr. Bennett credibly denied any knowledge of Claimant experiencing back complaints. The Court also received the testimony of Human Resources Director Denise Belcher. Claimant described initiating the short-term disability process at Employer in June of 2013. To do this, he was required to meet with and provide paperwork to Ms. Belcher. At trial, Ms. Belcher explained that short-term disability at Employer is self-funded and would never be available for medical conditions stemming from on-the-job



injuries. In her conversations with Claimant as short-term disability was pursued, she credibly testified that she was never advised that any of the medical conditions in question were work-related. To the contrary, she received written notification from Dr. Boulware that Claimant’s back complaints were not work-related.

I find Ms. Belcher credibly testified that Claimant never reported to her that he injured himself on the job. I find he never told her that he had an on-the-job injury when he was requesting short term disability.

Ms. Belcher credibly testified that Employer was prejudiced by lack of receiving

notice of an alleged injury by Claimant. Ms. Belcher credibly testified, and I find, that if Employer had timely notice of Claimant’s alleged work injury, they would have done an investigation, and they would have had a medical evaluation done even if they did not believe Claimant was injured on the job. Employer had accommodated work that would have been available to Claimant if a doctor had issued restrictions. The lack of a contemporaneous medical examination prevented Employer from securing work restrictions which would have been considered as an option for mitigating Employer’s potential exposure for medical treatment, lost time, or permanent disability, even if the compensability of the case had been questioned.

Employer’s evidence regarding the nature of the prejudice it suffered through lack

of notice was completely unrebutted. I find the testimony of Mr. Mentzer, Mr. Bennett, and Ms. Belcher that Claimant

did not give them notice of his alleged work injury is credible and persuasive. I find Claimant’s testimony to the contrary is not credible. I find that Claimant did not give notice to Employer that he injured his low back at work, either orally or in writing. I find that Employer did not receive any reporting of Claimant’s alleged on-the-job injury.

Based upon the substantial and competent evidence and the application of the Missouri Workers’ Compensation Law, I find and conclude that Claimant did not provide notice of his alleged injury as required by Section 287.420, RSMo, and that he did not meet his burden of demonstrating that Employer was not prejudiced by his failure to provide notice of his injury as required by Section 287.420, RSMo.

Based upon the substantial and competent evidence and the application of the Missouri Workers’ Compensation Law, I find in favor of Employer and deny Claimant's request for benefits. Employee’s entire claim against Employer and Insurer is denied. This Award is final and is subject to immediate appeal.



No attorney fee is awarded to claimant. Made by: ____/s/ Robert B. Miner____ Robert B. Miner Administrative Law Judge Division of Workers' Compensation

Documents

FINAL AWARD DENYING COMPENSATION - Missouri … · FINAL AWARD DENYING COMPENSATION ... Sonoco Products Company ... because he received short term disability and he had discussions