Parrott v. HQ, Inc.

• Decision Date: 20 September 1995
• Docket Number: No. 20050,20050
• Citation: 907 S.W.2d 236
• Parties: Lewis R. PARROTT, Claimant-Appellant, v. HQ, INC., d/b/a Aqua-Mist Cleaning, Employer-Respondent, and Continental Casualty Company, Insurer-Respondent.
• Court: Missouri Court of Appeals

Page 236

907 S.W.2d 236

Lewis R. PARROTT, Claimant-Appellant, v. HQ, INC., d/b/a Aqua-Mist Cleaning, Employer-Respondent, and Continental Casualty Company, Insurer-Respondent.

No. 20050.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 20, 1995.

Larry J. Pitts, John M. Taylor, Ramsdell & Associates, Springfield, for claimant-appellant.

Kenneth T. Walter, Mann, Walter, Weathers, Walter & Bishop, Springfield, for employer-respondent.

SHRUM, Chief Judge.

In this workers' compensation case, Lewis R. Parrot (Claimant) appeals from the Final Award entered by the Labor and Industrial Relations Commission (Commission) denying him compensation for a back injury allegedly sustained while working for HQ, Inc., d/b/a Aqua-Mist Cleaning (Employer). ¹ The Commission, affirming the findings of the Administrative Law Judge (ALJ), ruled that Claimant failed to carry his burden of proof that he sustained an injury on December 16, 1992, and also failed to establish that he had given proper notice of that injury to Employer.

We reverse and remand.

FACTS

In his "Claim for Compensation" form, Claimant alleged an on-the-job injury to his back "[o]n or about December 16, 1992 and thereafter." He designated the job-site where injured as "[i]nitially injured ... East Ritter work site, 135 East Ritter, Republic, Greene County, MO." As to "How injury occurred," Claimant alleged:

"While lifting up a large roll of wet carpet carrying it up a flight of stairs, employee suddenly and unexpectedly strained, twisted or damaged [his back] ...; subsequently, on two separate occasions while lifting and working with wet, large rolls of carpet, employee either injured, re-injured, or aggravated the previous back problems initially sustained at the Ritter work site."

The Employer's amended answer denied Claimant's allegations and pled affirmatively that his claim was barred for his failure to give timely written notice to the Employer regarding the accident as required by § 287.420. ²

At the hearing before the ALJ, Claimant's testimony included this. On December 16, 1992, he was working as a carpet cleaner for Employer. He and two co-employees, Curtis Yandell and Leo Fitts, were moving wet carpet from the basement of a home on Ritter Street in Republic, Missouri. He estimated its weight to be between 400 and 500 pounds. To remove the carpet, they had to carry it up the basement steps. Claimant was in front, Yandell in the middle, and Fitts at the back. As Claimant got to the top of the steps, he "could feel this pulling on my back," on the "right side ... at the belt line." He put the carpet down, arched his back, and tried to stretch it out, but this did no good. He did not recall whether he yelled or otherwise exclaimed about the pain at the time. The owner of the home where they were working then helped take the carpet on out.

After the December 16 incident, Claimant had back pain, which he described as strong in the morning, not so bad in the evening, and for which he was taking six or eight Advils per day. Despite the pain, Claimant continued to work without seeing a doctor and without reporting it to Employer. He explained that with his limited experience he saw no reason to seek medical care.

Claimant testified that in early January 1993, he worked in another flooded basement, this time in Springfield, Missouri, where he again helped move wet carpet and also a heavy desk and other household items. After that job, Claimant's back "got worse," "it just felt like ... the muscles were pulled again ... that's what I was thinking." Continuing, Claimant testified that on January 22, 1993, he worked on a job in Nixa where he helped move furniture, carpet, and related items.

On January 25, 1993, the following occurred. When Claimant awoke, he was throwing up. He called his Employer, reported he was sick, and was going to see his family physician. That doctor immediately sent Claimant to a chiropractor, Dr. Maurer. Claimant saw Dr. Maurer that same day. Claimant then called Employer to advise that Dr. Maurer wanted him to take off a few days "to see what was wrong."

On February 1, 1993, Claimant gave Employer a work release signed by Dr. Maurer. It was then that Claimant first told Employer he had suffered injury while on the job on December 16, 1992. Immediately, Employer sent Claimant to its physician, Dr. Campbell. After testing Claimant, Dr. Campbell's diagnosis was that he had a herniated disc, right side, at the L4-L5 level. Claimant was referred to Dr. Michael Clarke, an orthopedic surgeon. Later, Dr. Clarke performed surgery on Claimant, during which he confirmed Dr. Campbell's diagnosis. In deposition testimony, Dr. Clarke stated his opinion that, based on the history given him, Claimant's herniated disk at the L4-L5 level "was medically or causally related or linked to [Claimant's] on-the-job injury of December 16, 1992, or continuing work thereafter."

The ALJ found that Claimant failed to carry his burden of proof that he sustained an injury on December 16, 1992, and also failed to establish that he had given proper notice of that injury to Employer. The Commission adopted and affirmed the ALJ's findings. This appeal followed.

Point I(A): Employer's Alleged Non-Compliance With § 287.127

In Point I(A), Claimant challenges the Commission's ruling that denied him benefits because of his failure to give Employer written notice of his alleged December 16, 1992, injury within the time limits of § 287.420. Section 287.420 reads:

"No proceedings for compensation 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, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds that the employer was in fact misled and prejudiced thereby."

The purpose of the § 287.420 notice requirement "is to give the employer a timely opportunity to investigate the facts and promptly furnish medical attention to the employee to minimize the injury." Hillenburg v. Lester E. Cox Medical Center, 879 S.W.2d 652, 655 (Mo.App.1994).

In this case, Claimant admitted he gave no written notice of the injury within thirty days after December 16, 1992. Nevertheless, he contends in Point I(A) that the Commission erred in denying his claim for want of timely notice under § 287.420 because of Employer's failure to substantially comply with § 287.127. Claimant argues that the Commission did not consider or apply the latter provision.

Section 287.127 provides, in part:

"1. Beginning January 1, 1993, all employers shall post a notice at their place of employment, in a sufficient number of places on the premises to assure that such notice will reasonably be seen by all employees. An employer for whom services are performed by individuals who may not reasonably be expected to see a posted notice shall notify each such employee in writing of the contents of such notice. The notice shall include:

"....

"(2) That employees must report all injuries immediately to the employer ... and that the employee may lose the right to receive compensation if the injury ... is not reported within thirty days...." (Emphasis ours.)

We find no case law interpreting § 287.127. The legislature used unmistakable and explicit language in § 287.127 to declare that beginning January 1, 1993, employers must post or otherwise provide employees with notices that inform them of their obligation to report injuries, the deadline for reporting, and the possible adverse consequences of non-compliance. Its clear purpose is to benefit Missouri workers by placing on employers a duty to post or otherwise give notices designed to inform employees of (1) what they must do to ensure the preservation of a valuable right, and (2) the statutory deadline within which they must act.

Other than creating a criminal offense for willful violation and providing a penalty therefor, § 287.127 does not state the effect or impact, if any, of non-compliance with its provisions. ³ Nevertheless, Claimant insists that because of this statute, Respondents should not be able to absolve themselves from liability on the ground that Claimant failed to meet a statutory deadline which Employer should have brought to his attention but did not.

Claimant's contention that Employer's alleged non-compliance with § 287.127 exempts him from the reporting requirement of § 287.420 must be analyzed with certain rules of statutory construction in mind. Under § 287.800, we are to give all provisions of the Workers' Compensation Act (the Act) such construction as will promote the public policy of extending its benefits to the largest possible class, Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 783 (Mo. banc 1983), provided such construction can be given without violating fixed rules or principles of law. ⁴ McClintock v. Skelly Oil Co., 232 Mo.App. 1204, 114 S.W.2d 181, 190 (1938). The law is to be liberally construed with a view to the public welfare and in furtherance of the public policy that an employee is entitled to have compensation for any injury that is clearly job-related and arises out of and in the course of his employment. Wolfgeher, 646 S.W.2d at 783-85. Accordingly, our courts consistently hold that in construction of the Act, any doubt or question as to the right of an employee to compensation shall be resolved in favor of the injured employee. Wolfgeher, 646 S.W.2d at 783; McClintock, 114 S.W.2d at 190.

A new statute must be construed in light of the defect it seeks to remedy and the usages, circumstances, and conditions existing at the time the change was made....