Sell v. Ozarks Med. Ctr.

• Decision Date: 31 January 2011
• Docket Number: No. SD 30544.,SD 30544.
• Parties: Eli Orlan SELL, Claimant–Respondent,v.OZARKS MEDICAL CENTER, Employer–Appellant.
• Court: Missouri Court of Appeals

333 S.W.3d 498

Eli Orlan SELL, Claimant–Respondent,

v.OZARKS MEDICAL CENTER, Employer–Appellant.

No. SD 30544.

Missouri Court of Appeals, Southern District, Division One.

Jan. 31, 2011.

Jared Vessell, Atwill & Montgomery, Attorneys at Law, L.L.C., Columbia, MO, for Appellant.Justin H. Nelson, Garrett & Silvey, West Plains, MO, for Respondent.GARY W. LYNCH, Judge.

Ozarks Medical Center (“Employer”) appeals the final order of the Labor and Industrial Relations Commission (“the Commission”) awarding workers' compensation benefits to Eli Orlan Sell (“Claimant”). Employer claims that the Commission's finding that Employer was not prejudiced by Claimant's failure to give written notice as required by section 287.420 because it had actual notice of Claimant's injury was against the weight of the evidence and misapplied the law in failing to strictly construe section 287.420. ¹ Finding no merit in Employer's claims, we affirm the Commission's award.

Factual and Procedural Background

Claimant filed a claim for compensation with the Division of Workers' Compensation (“the Division”) on August 1, 2006. Claimant alleged that on May 29, 2006, at approximately 9:15 a.m., he “was loading a lawn mower into the back of a motorized vehicle” and was injured while at work in West Plains, Missouri. Employer filed a Report of Injury and Answer to Claim for Compensation on September 6, 2006, which indicated that the injury occurred around noon on May 29 and that Employer had not been notified of Claimant's injury until July 20, 2006. In its answer, Employer denied that Claimant suffered an injury while at work and contended that, regardless of the nature and scope of Claimant's alleged injury, any claim for benefits was statutorily barred because it was filed out of time. Employer further claimed that it had not received written notice of Claimant's alleged injury within the statutorily mandated thirty-day time period.

The Division held a hearing before an Administrative Law Judge (“ALJ”) on May 21, 2009. At that hearing, Claimant testified that on May 29, 2006—Memorial Day—he arrived at his job as a handyman around 7:00 a.m. Claimant began his work day by picking up trash throughout the hospital and then took a break. Claimant then attempted to put a lawn mower onto the back of a “souped-up golf cart with a little bed on the back of it”; he “bent down, twisted and slipped.” He dropped the mower and caught himself on the back of the golf cart. He stated that “the concrete was damp and moist and stuff[,]” and that this was the reason he slipped. Claimant described the pain upon twisting his back, “like a sharp knife sticking you in the back.” Claimant testified that, up until that point in the morning, his back had not been bothering him. Claimant further testified that, although he had lifted the lawn mower onto the golf-cart bed “[h]undreds and hundreds of times[,]” he had never before felt any pain in his back while doing so, and he had not had any back problems or sought medical treatment for his back.

After slipping, Claimant decided to push the lawn mower around the hospital's campus in order to complete the mowing, but his back “started hurting too much [.]” Claimant testified that he moved both the mower and the golf cart into “the shop” and called “the maintenance guy, told him I got hurt, and I thought I just pulled a muscle or something in my back, and I was going home.” According to Claimant, he was told that was “[o]kay.” Claimant was not sure if the man he talked to that day was Steve Tackitt or Cliff Webb. As it was a holiday, Claimant's regular supervisor, Cal Hutchings, was not there, and Claimant had been instructed to “report to the maintenance shop[.]”

The following day, Claimant's wife, Samantha Sell, drove Claimant to see his primary-care physician, Dr. Bruce Preston. According to Claimant, Dr. Preston prescribed a muscle relaxant and pain medication and gave Claimant a note to excuse him from work for the remainder of the week. Claimant's wife then drove from Dr. Preston's office to Employer, gave the note to Claimant's supervisor, Cal Hutchings, explained the origin of Claimant's injury, and told Hutchings to speak with Claimant if he had any questions. Claimant testified that Hutchings then went out to the vehicle, where Claimant sat waiting for his wife, and discussed the incident with Claimant. Claimant did not return to work that week.

Claimant reported to work the following Monday and told Hutchings he was not “feeling real good[ ]” because of lingering pain in his back. This was the first time Claimant recalled describing the accident to his supervisor. According to Claimant, Hutchings did not ask him any questions regarding his back pain or his fall but simply told Claimant “to do what [he] could and take it easy[.]” After making some telephone calls and organizing a few things, Claimant went home. After letting Hutchings know he would not be in because of lingering back pain, he returned to Dr. Preston the next day. Dr. Preston scheduled an MRI, which took place June 14, 2006, and sent Claimant to physical therapy, which Claimant quit after two or three appointments because his pain became worse.

Claimant was referred to a neurological specialist and was seen by Alice Mills, a nurse practitioner working in Dr. K. Douglas Green's office, on June 21, 2006, and multiple dates through early July. She diagnosed Claimant as having a degenerated lumbar disc and prescribed pain medication. In her records, Mills initially stated that Claimant's “back started hurting while working at OMC on May 20, 2006.” She also noted that Claimant did not recall a specific injury; however, later records list the May 29, 2006, injury as the cause of Claimant's pain.

After Claimant's second visit to Dr. Preston, Hutchings scheduled an appointment for Claimant with Dr. Glen Cooper, who Claimant considered to be “the workmen's comp doctor.” Claimant testified that he saw Dr. Cooper twice. While he initially stated that he saw Dr. Cooper “just a few days” after getting hurt, he later acknowledged that he did not see Dr. Cooper until July 20, 2006, because “[t]hat's when [Hutchings] scheduled it[.]” Dr. Cooper initially diagnosed paresthesias, and excused Claimant from work. However, Claimant stated that during his second appointment with Dr. Cooper on August 28, 2006, Dr. Cooper told Claimant, “ ‘You need to get off your pain pills, deal with the pain, go back to work, or sit home and draw your unemployment and Social Security.... I am putting you off.’ ”

In his first report, Dr. Cooper noted that he did not feel the injury was work related and that Claimant needed to attend physical therapy and the pain clinic. Dr. Cooper later noted that Claimant “apparently did not follow the protocol that is well known to him[ ]” and that he was “undecided” as to whether Claimant's injury was work related. Ultimately, he referred Claimant to a physical therapist, who evaluated and discharged Claimant on the same day because Claimant's pain level was so high.

On September 10, 2006, Claimant was referred to Dr. Ferguson of Springfield Neurological. Dr. Ferguson diagnosed Claimant as having a lumbar spondylosis with lumbar sprain and recommended Claimant use heat, massage, ultrasound, and electrical muscular stimulation to treat his pain.

Claimant saw Dr. David Volarich on February 19, 2008. Dr. Volarich diagnosed Claimant with a disc protrusion at L4–5 and a bulge at L5–S1. He testified that, after viewing Claimant's MRI, examining Claimant physically, and conducting an oral examination, he believed the May 29, 2006, incident was the cause of Claimant's continuing back pain and his degenerative disc disease. Dr. Volarich rated Claimant at 50% permanent partial disability.

Claimant testified that he had twice before been injured at work, once in February 2006 when he injured his ankle and another time in April 2006 when he injured his wrist. Both times, Claimant simply told his supervisor, the supervisor filled out the appropriate forms, and Claimant signed them when told to do so. Claimant stated that he reads “very, very little[,]” and that he would be unable to fill out the requisite forms on his own. On both occasions, Claimant was sent to Dr. Cooper by Claimant's supervisor.

Initially, Claimant filed for short-term disability benefits. The first such form, which was completed by Dr. Preston as the attending physician, did not indicate that it was a work-related injury. However, a later form completed on August 20, 2006, noted the May 29, 2006, incident as the root cause of Claimant's pain. Likewise, the report filed with Claimant's MRI showed “[n]o known injury[ ]”; however, testimony was elicited at the hearing that the oral history taken during an MRI does not always contain etiology.

Claimant was eventually terminated from his job with Employer.

Claimant's wife testified that, prior to the injury on May 29, 2006, she had not known Claimant to have had any back problems. She stated that on the day following the incident, she drove Claimant to Dr. Preston's office, where Claimant received a note excusing him from work, and then drove Claimant to Employer, where she delivered the note to Hutchings, explained that Claimant had been hurt at work the day before, and told Hutchings to speak with Claimant if he had any questions. She did not remember Hutchings coming out to the vehicle to speak with Claimant.

Stephen Tackitt testified on behalf of Employer. At the time of Claimant's injury, Tackitt worked in Employer's maintenance department. Tackitt testified that on May 29, 2006, he received a call from Claimant “around lunchtime.” According to Tackitt, Claimant did not mention any injury or accident but instead simply said, “I am going home[.]” Tackitt stated that he never had a conversation with Claimant regarding his injury.

Cal Hutchings, Claimant's supervisor, also testified for Employer. At the time of Claimant...