Harley-Davidson Motor Co. v. Jones

• Decision Date: 28 August 2018
• Docket Number: WD 81155
• Parties: HARLEY-DAVIDSON MOTOR COMPANY, INC., Appellant, v. Kenneth JONES, Respondent, Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

557 S.W.3d 328

HARLEY-DAVIDSON MOTOR COMPANY, INC., Appellant,
v.
Kenneth JONES, Respondent,

Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Respondent.

WD 81155

Missouri Court of Appeals, Western District.

OPINION FILED: AUGUST 28, 2018

Thomas D. Billam, Kansas City, MO, Counsel for Appellant.

Kristi L. Pittman, Liberty, MO, Counsel for Respondents.

Before Division Four: Mark D. Pfeiffer, Presiding Judge, Karen King Mitchell, Chief Judge, Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

Appellants Harley-Davidson Motor Company ("Employer") and American Casualty Company ("Insurer") appeal the final award of the Labor and Industrial Relations Commission ("the Commission") in favor of Respondent Kenneth Jones for work-related injury. They raise two points on appeal. First, Appellants argue the Commission erred, because Jones failed to provide timely written notice of his lower back injury, pursuant to Section 287.420, RSMo 2005. Second, they argue the Commission erred by failing to make specific factual findings of its own and by failing to support its factual findings with an evidentiary basis. Affirmed.

Background

On July 13, 2011, Jones submitted to Employer a report of injury for an accident he suffered that day while assembling motorcycle parts. In the report, Jones provided the following description of the incident: "Trying to unstick pinch bolt, [pneumatic] gun stopped, elbow didn't. The force actually tripped the gun, and Frank had to back the bolt out manually, to tap the hole." Jones testified the gun "just jerked," twisting from the right to the left of his body while Jones held the gun with both hands.

Jones checked the box indicating injury to his "Arm/Shoulders" and specified stinging fingers and "sharp" and "radiating" pain from his right elbow, which he had also injured in 2010. That same day, Employer sent Jones to Dr. Gil Wright, who diagnosed Jones with a right elbow sprain. Jones was fitted with a sling and given significant work restrictions. Jones’s care was then transferred to Dr. Paul Nassab at Drisko, Fee & Parkins.

The next day, Jones experienced back pain that would intensify over the coming weeks. On Sept 26, 2011, Jones mentioned his back pain to Dr. Nassab, who then referred Jones to Nassab’s partner, orthopedic surgeon Dr. Robert Drisko. On September 27, 2011, the back pain became intolerable, and Jones admitted himself to emergency care. On October 4, 2011, Jones saw Dr. Drisko, who diagnosed Jones with spondylolisthesis, a condition marked by instability in the back. While the spondylolisthesis was a pre-existing condition, Dr. Drisko believed Jones’s July 13, 2011 injury was a torque injury that was the prevailing factor in his present medical condition. This October appointment marks the first time Jones believed his low back pain was related to his workplace accident. Dr. Drisko advised Jones to notify Employer of the extent of his injuries. Jones immediately contacted Employer’s health department and notified them of Dr. Drisko’s diagnosis. The health department informed Jones he was not to complete a new injury report and, instead, instructed him to contact the insurance adjuster. Though Employer refused Jones’s request for low back treatment, Jones continued treatment with Dr. Drisko.

On December 2, 2011, Jones submitted a claim for compensation with the Division of Workers' Compensation. The claim indicated

557 S.W.3d 331

injury to Jones’s "back and body as a whole" and provided the following description of the accident: "Employee was using an pneumatic drill approximate [sic] 2 ½ to 3 feet long to torque a large diameter bolt to assemble a motorcycle wheel and swing arm when the drill kicked back jerking claimants' [sic] body directly causing the above permanent and disabling injuries." In the section for Second Injury Fund claims, Jones checked the box for "permanent partial disability." Jones submitted an amended claim on August 15, 2014, updating his address and checking the box for "permanent total disability" under Second Injury Fund claims. In their amended answer, Appellants "specifically deny any injury to ‘back and body as a whole,’ as alleged, and assert that there had been no proper notice regarding any alleged injury to ‘back and body as a whole,’ and claim prejudice therefrom."

On July 15, 2015, the Administrative Law Judge found Jones’s elbow and low back injuries occurred in the course and scope of his employment, and Employer was given notice as required by statute. Jones was awarded $39,205.64 for the claimed period during which Jones was temporarily totally disabled. On September 14, 2017, the Commission affirmed the award, adopting the ALJ’s factual findings related to accident and causation but providing its own analysis on the issue of notice.¹ This appeal follows.

Standard of Review

"A reviewing court may modify, reverse, remand for rehearing, or set aside a workers' compensation award upon a finding that: (1) the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the commission's factual findings do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Section 287.495.1, RSMo 2000." Greer v. SYSCO Food Services , 475 S.W.3d 655, 664 (Mo. banc 2015) (quoting Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223 (Mo. banc 2003) (footnote omitted) ). "Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Id. (internal quotation omitted).

"In the absence of fraud, the commission's findings of fact shall be conclusive and binding. Section 287.495.1." Greer, 475 S.W.3d at 664. "This Court must defer to the commission's findings on issues of fact, the credibility of the witnesses, and the weight given to conflicting evidence." Id. (citation and quotation marks omitted). We "review the findings and award of the Commission rather than those of the ALJ, to the...