Soos v. Mallinckrodt Chemical Co.

• Court: Missouri Court of Appeals
• Citation: Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000)
• Decision Date: 25 April 2000
• Parties: (Mo.App. E.D. 2000) . Michael Soos, Claimant/Appellant, v. Mallinckrodt Chemical Co., Employer/Respondent, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Respondent. Case Number: ED76717 Missouri Court of Appeals Eastern District Handdown Date: 0

19 S.W.3d 683 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Michael Soos, Claimant/Appellant, v. Mallinckrodt Chemical Co., Employer/Respondent, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Respondent.

Case Number: ED76717

Missouri Court of Appeals Eastern District

Handdown Date: 04/25/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Nancy R. Mogab and David G. Hughes

Counsel for Respondent: Michael F. Banahan and Mary Anne Lindsey

Opinion Summary: In this workers' compensation case, claimant Michael Soos appeals the final award and decision of the Labor and Industrial Relations Commission denying compensation for a back injury claimant alleged he suffered while working for employer Mallinckrodt Chemical Company. The Commission found that claimant did not provide employer with timely notice as required by Section 287.420 RSMo.

AFFIRMED.

Division Two Holds: (1) The Commission's finding that the claimant failed to make a prima facie case that the employer was not prejudiced by the lack of opportunity to promptly investigate the injury is supported by the record. (2) The employer's failure to investigate upon receiving late notice of an injury is not relevant evidence on the issue of whether the employer was not prejudiced. (3) The Commission did not misstate the law in its discussion of good cause.

Opinion Author: Kathianne Knaup Crane, Presiding Judge

Opinion Vote: AFFIRMED. R. Dowd, Jr., and Sullivan, JJ., concur.

Opinion:

In this workers' compensation case, claimant, Michael Soos, appeals from the final award and decision of the Labor and Industrial Relations Commission (Commission) denying compensation for a back injury claimant alleged he suffered while working for employer, Mallinckrodt Chemical Company. The Commission affirmed, with a separate opinion, the award and decision of the Administrative Law Judge (ALJ) denying compensation for claimant's injury because claimant did not provide employer with timely notice, as required by Section 287.420 RSMo (1994). Claimant contends that the Commission erred in that he made a prima facie showing that employer was not prejudiced by the late notice and, therefore, his claim should not be barred by Section 287.420 RSMo (1994). Claimant also argues that the Commission misstated the law on the good cause exception to timely notice. We affirm.

At the time of trial, claimant, Michael Soos, had been employed by employer, Mallinckrodt Chemical Company, for over twenty-five years. Claimant had previously injured his back in 1974 and had surgery on his back in 1976.

On October 15, 1995, claimant was assigned to work inside a pancake dryer repairing bolts and broken welds. While he was working claimant noticed some sharp shooting sensations in his right leg. When he finished, he felt his back stiffen up and it started to ache.

Claimant went to the dispensary on October 16 for follow-up treatment of a prior wrist injury. He did not mention pain in his back. Claimant worked the next three days and then called in sick for two days, which he spent lying on a heating pad. Thereafter, claimant returned to work and worked until he took sick leave for cataract surgery on November 20. Claimant sought treatment for continuing back pain from a chiropractor, Dr. Grosze, on October 21, 24, and 28.

While claimant was off work during November, 1995 for cataract surgery, he scheduled an appointment with Dr. Beyer, an orthopedic surgeon, seeking relief from back pain. On December 5, 1995, Dr. Beyer prescribed anti-inflammatory medication, gave claimant some exercises to do, and suggested physical therapy. Claimant returned to Dr. Beyer on December 20, 1995 at which time the doctor ordered an MRI. The MRI revealed a large disc herniation and Dr. Beyer recommended that claimant visit Dr. Bailey to consider surgical interventions.

On December 27, 1995, claimant reported to the employer's dispensary nurse that he had hurt his back while working on the pancake dryer on October 15, 1995. Claimant was sent home and employer sent claimant to a doctor. Claimant's supervisor did not learn that claimant claimed a work-related injury to his back until December 28 when he received the information from the dispensary. Plaintiff was on sick leave during January. He returned to work February 1 on light duty.

On March 5, 1996, Dr. Bailey performed surgery on claimant's back at L4-L5 and L5-S1. Claimant missed 14 5/7 weeks of work during which he drew long-term disability payments. Claimant thereafter filed a claim for compensation with the Missouri Department of Labor and Industrial Relations for an injury to his back which he alleged occurred on October 15. On appeal of a workers' compensation claim, we review only questions of law. Section 287.495.1 RSMo (Cum. Supp. 1998). We can modify, reverse, remand for rehearing, or set aside awards only on the grounds prescribed by statute: (1) that the Commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the Commission do not support the award; or (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Id. We review decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo. App. 1995).

If the decision is based on determinations of fact, we review the whole record in the light most favorable to the decision. West, 804 S.W.2d at 744. We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Wiele v. National Super Markets, Inc., 948 S.W.2d 142, 145 (Mo. App. 1997). In the absence of fraud, the factual findings made by the Commission within its powers are conclusive and binding. Section 287.495.1 RSMo; Wiele, 948 S.W.2d at 145. When the Commission affirms or adopts the findings of the ALJ, we review the decision and findings of the ALJ as adopted by the Commission. Wiele, 948 S.W.2d at 145.

For his first point claimant contends that the Commission misinterpreted Section 287.420 RSMo. Claimant argues that he made a prima facie case that employer was not prejudiced by claimant's failure to give notice within thirty days of his accident because he proved that employer's ability to make an accurate investigation of the accident two months after the injury was not hindered.

The relevant part of Section 287.420 provides:

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 the 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.

The purpose of this section 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. Gander v. Shelby County, 933 S.W.2d 892, 895 (Mo. App. 1996); Willis v. Jewish Hospital, 854 S.W.2d 82, 84 (Mo. App. 1993). However, the failure to give timely written notice may be excused if the Commission finds either that there was good cause for the failure or that the failure did not prejudice the employer. Id. at 84-85.

The most common way for an employee to establish lack of prejudice is for the employee to show that the employer had actual knowledge of the accident when it occurred. Klopstein v. Schroll House Moving Co., 425 S.W.2d 498, 503 (Mo. App. 1968). If the employer does not admit actual knowledge, the issue becomes one of fact. Id. If the employee produces substantial evidence that the employer had actual knowledge, the employee thereby makes a prima facie showing of absence of prejudice which shifts the burden of showing prejudice to the employer. Id. at 503-04. See also Gander, 933 S.W.2d at 892.

However, when the claimant does not show either written notice or actual knowledge, the burden rests on claimant to supply evidence and obtain the Commission's finding that no prejudice to the employer resulted. Klopstein, 425 S.W.2d at 504. If no such evidence is adduced, we presume that the employer was prejudiced by the lack of notice because it was not able to make a timely investigation. See Gander, 933 S.W.2d at 896-97.

Claimant asserts that he adduced evidence that employer was not prejudiced in its ability to conduct an investigation because, after learning that claimant had gone to the dispensary for back injuries on December 27, claimant's supervisor did not conduct an investigation and did not interview the two employees who were with claimant at the time of the injury. Claimant specifically argues: "Because Employer here took no action at the time it learned of [claimant's] potentially compensable injury, its ability to investigate the accident was not prejudiced by a one-month delay in [claimant's] notice." We specifically rejected this argument in Willis when we held:

This argument misses the...