Aramark Educ. Servs., Inc. v. Faulkner
| Decision Date | 03 September 2013 |
| Docket Number | No. ED 99439.,ED 99439. |
| Citation | 408 S.W.3d 271 |
| Parties | ARAMARK EDUCATIONAL SERVICES, INC., et al., Appellants, v. Leotha FAULKNER, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
David I. Hares, Robert J. Amsler, Jr., St. Louis, MO, for appellant.
Samuel W. Eveland, St. Louis, MO, for respondent.
Aramark Educational Services, Inc. (“Employer”) and Indemnity Insurance Company of North America, Inc. (“Insurer”) appeal from the final order of the Labor and Industrial Relations Commission (“Commission”) awarding Leotha Faulkner (“Claimant”) temporary total disability benefits and 20% permanent partial disability benefits as a result of an injury Claimant sustained while working for Employer. We reverse and remand.
Claimant worked for Employer as a custodian for the past seven years on the campus of Washington University in St. Louis (“Washington University”). On or about January 29, 2010, Claimant slipped and fell on black ice while walking between two buildings on Washington University's campus. After falling on her right knee, Claimant picked herself up and returned to work. Believing herself to be uninjured, Claimant did not immediately report the incident to her supervisor or Employer.
Roughly ten days later, Claimant noticed her right leg was swollen. However, Claimant, again, did not report anything regarding her now apparent injury or the facts surrounding her fall to her supervisor or Employer. Instead, on February 18, 2010, Claimant sought medical advice and treatment from her primary care doctor. After medical evaluation, Claimant's primary care doctor provided Claimant with a knee brace and referred Claimant to Dr. Clayton Perry (“Dr. Perry”) for further evaluation. On March 25, 2010, Claimant was evaluated by Dr. Perry, who determined that Claimant had suffered a torn lateral meniscus and recommended surgery. Surgery to repair Claimant's injuries occurred on April 8, 2010. After surgery, Claimant underwent physical therapy and received injections in her knee. Claimant was unable to work between April 8, 2010, and June 2, 2010.
Prior to her April 8th surgery, Claimant, on March 31, 2010, informed her Employer of her injury and the incident leading to her injury. At the time of reporting her injury to Employer, Claimant signed a document acknowledging she had first reported the injury to Employer on March 31, 2010. Employer offered Claimant the opportunity to receive medical treatment, but Claimant denied the offer due to her already scheduled surgery.
Unfortunately, the April 8, 2010, surgery failed to resolve Claimant's injury, and, thereafter, Claimant underwent a total knee replacement in August 2011. Currently, while Claimant suffers lingering effects from her injury, she is still employed and working for Employer.
Due to Claimant's inability to work between April 8, 2010, and June 2, 2010, and due to lasting effects of her injury, Claimant filed a claim for workers' compensation. An Administrative Law Judge (ALJ) for the Division of Workers' Compensation denied Claimant benefits on the ground that Claimant failed to provide proper notice of the injury, pursuant to Section 287.420. On appeal, the Commission reversed the ALJ's decision and awarded Claimant 7 and 6/7 weeks of temporary disability benefits from April 8, 2010, through June 2, 2010, and 20% permanent partial disability benefits rated at the right knee.
Employer now appeals.
In Employer's sole point on appeal, Employer charges error in the Commission's decision that Claimant's failure to provide timely written notice of injury, pursuant to Section 287.420, did not prejudice Employer. Specifically, Employer contends that the Commission's judgment awarding Claimant 20% permanent partial disability and temporary total disability was not premised upon substantial and competent evidence, in that Claimant's untimely notice prejudiced Employer.
Upon review from a decision in a workers' compensation proceeding, an appellate court may modify, reverse, remand for rehearing, or set aside the decision of the Commission upon the following grounds and no other:
(1) That the Commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the Commission do not support the decision; or
(4) That there was not sufficient competent evidence in the record to warrant the decision.
SeeSection 287.495, RSMo Cum.Supp.2012; 1see also Abt v. Mississippi Lime Co., 388 S.W.3d 571, 577 (Mo.App.E.D.2012).
The Court reviews and examines the entire record to determine if there is “sufficient competent and substantial evidence” to support the Commission's award, or whether the Commission's award is contraryto the “overwhelming weight of the evidence.” Hutson v. Treasurer of Mo. as Custodian of Second Injury Fund, 365 S.W.3d 269, 272 (Mo.App.E.D.2012). While we defer to the Commission on issues of fact and witness credibility, we owe no deference to the Commission's interpretation and application of the law and review de novo questions of law, including issues of statutory interpretation. Beine v. Cnty. of St. Charles, 353 S.W.3d 704, 707 (Mo.App.E.D.2011).
In its sole point on appeal, Employer contends Claimant should be denied all benefits pursuant to The Workers' Compensation Law, Section 287.010, et seq., because Claimant failed to give Employer timely notice of the injury as required by Section 287.420.
Disposition of the case begins with analysis of the statute itself. In relevant part, Section 287.420 provides:
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....
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).2
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) (). 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).3 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) (). 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.
Prior to Claimant's hearing before the Administrative Law Judge (ALJ) of the Division of Workers' Compensation, the parties agreed to nine (9) stipulations. Relevant to the issues on appeal are the following stipulations:
1. On or about January 29, 2010, Leotha Faulkner (Claimant) sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant.
2. Claimant was an employee of Aramark Educational Services, Inc. (Employer)
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8. If Employer's notice defense fails, Claimant is entitled to receive $1,895.06 in temporary total disability (TTD) benefits for the period of time of April 8, 2010 through June 2, 2010 or...
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