Allcorn v. Tap Enterprises, Inc.
Decision Date | 26 February 2009 |
Docket Number | No. SD 29311.,SD 29311. |
Citation | 277 S.W.3d 823 |
Parties | Allen ALLCORN, Claimant-Appellant, v. TAP ENTERPRISES, INC., and Travelers Commercial Casualty Co., Respondents-Respondents. |
Court | Missouri Court of Appeals |
Randy Charles Alberhasky of The Alberhasky Law Firm, P.C., Springfield, MO, for Appellant.
Patricia L. Musick and Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A., Springfield, MO, for Respondent.
Allen Allcorn, ("Claimant") appeals the decision of the Labor and Industrial Relations Commission ("Commission") denying any compensation from Tap Enterprises, Inc., ("Employer") and its insurer Travelers Commercial Casualty Co. for an alleged occupational disease suffered by Claimant. The Commission affirmed the decision of the Administrative Law Judge ("ALJ"), on the ground that Claimant failed to give proper notice to his Employer in accordance with section 287.420.1 Claimant appeals the decision of the Commission in three points, each alleging that the Commission improperly applied the law as amended in 2005. Reaching the merits of points one and two only, we find that Claimant did not provide notice according to a strict construction of section 287.420; however, we find that the Commission based its finding of prejudice to Employer on evidence from an incorrect time period. We reverse the decision of the Commission and remand to the Commission to make factual findings consistent with this opinion.
Claimant's continuous period of employment with Employer was between February 1, 2004 and April 14, 2006. Employer is a company that sells tools throughout the United States at temporary locations such as trade shows or similar events. Large semi-trucks are used to transport the merchandise to new events. At each event, the tools are manually unloaded and set up for display for the day of the sale, before being manually reloaded into the truck at night. Claimant was hired to drive a truck and was also part of a crew responsible for loading and unloading the tools each day, which would take from 2 to 4 hours daily. The tools could range in weight from 35 to 150 pounds. Claimant worked seventeen days on the road followed by seventeen days off. During the seventeen consecutive days worked, Claimant worked for twelve to fifteen hours at a time. Claimant testified that, prior to this employment, he had not had any back problems and had never sought any medical care for his back.
Shortly after Claimant began working for Employer, Claimant began experiencing pain in his lower back causing him to seek medical treatment. The relevant events are summarized in the timeline below.
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...shall be excluded from its operation which does not clearly come within the scope of the language used." Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 828 (Mo. App. S.D. 2009) (citing 82 C.J.S. Statutes § 376 (1999)). "The clear, plain, obvious or natural import of the language should be us......
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...affirmatively pointed out by its terms, and to cases which fall fairly within its letter.’ ” Id. (quoting Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 828 (Mo.App.S.D.2009)). Undisputedly, section 287.780 does not contain the word “exclusively” or “solely” or “only” to support the exclusiv......
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...affirmatively pointed out by itsterms, and to cases which fall fairly within its letter.'" Id. (quoting Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 828 (Mo. App. S.D. 2009)). Undisputedly, section 287.780 does not contain the word "exclusively" or "solely" or "only" to support the exclusi......