Wednesday, December 15, 2010

287.420 notice

Notice of tinnitus in claim satisfies notice requirement

Claimant alleged he developed hearing loss and ringing in his ears from is career  as an airline mechanic.  He did not establish a compensable hearing loss but ringing in his ears was sufficient to establish a second injury fund claim and support an award of total disability combined with his prior COPD.  The Commission noted claimant had no duty to provide notice until he became aware the condition was work related.  Sparks v American Airlines, 2014 Mo WCLR Lexis 109 (Sept. 16, 2014). 
ALJ  Nelson
Atty:  Baker
Experts:  Koprivica, Titterington

Knowledge of treatment of medical condition does not constitute notice
Claimant's claim for compensation was the first written notice of an accident and she failed to establish a lack of prejudice to the employer's ability to investigate or direct timely treatment.    Claimant describes worsening orthopedic and mental conditions after a confrontation with a combative patient.  The employer may have had knowledge that she was treating for her back but not that it flowed from the work injury.
The ALJ found the claimant did not prove accident or notice and was not credible based on  inconsistent medical history, court room demeanor, disproportionate subjective symptoms and inaccurate statements on an employment application.  The court suggests claimant's worsening mental symptoms were in conjunction with drug use and did flow from the work injury.   Gibbons v St. Louis Univ., 2013 Mo WCLR Lexis 5.
Atty:  Gregory, O'Sullivan, Cunningham
ALJ:  Ottenad
Experts:  Volarich, Stillings, England, Smith Wayne

Stipulated PPD diminishes notice defense
The injured worker hurt his knee when he fell on black ice, he treated on his own, and waited nearly two months beyond the statutory 30 day deadline to provide notice to his employer but the Commission reversed a denial of benefits based on an absence of prejudice.
Statutory reform requires written notice in 30 days and removed the "good cause" excuse for late notice and timely written notice can now only be excused if that failure did not prejudice employer. "Claimant admittedly did not provide notice to Employer at that point out of fear that she would get in trouble for not following Employer's policy that all injuries must be immediately reported."

The case proceeded on the sole disputed issue of notice and the employer stipulated to all other facts including an agreed amount for disability. The ALJ concluded prejudice existed because the employer did not have the opportunity to investigate the accident or minimize the disability. The employer asserts investigation could have determined whether claimant violated any safety policies regarding non-slip footwear.

The commission noted the employer's stipulation to disability undermined its argument that more timely notice would have reduced disability. Similarly, the commission found no prejudice regarding the inability of the employer to manage medical expenses by directing care because claimant did not submit the medical bills. The commission did not find persuasive that the employer had potential prejudice from a possible safety penalty when there was no evidence of actual prejudice and the employer had not asserted a safety penalty as an affirmative defense. Faulker v Aramark Educational Services, 2012 Mo WCLR Lexis 202 (Dec. 6, 2012) ; 2013 MO WCLR Lexis 204 (Oct. 30, 2013)(reversing prior decision granting compensation after mandate establishing no evidence on lack of prejudice).
ALJ: Ottenad Atty: Eveland, Amsler

The claimant did not have an obligation to provide notice of an occupational disease until a doctor made causation, which did not occur until after claimant completed treatment and saw her own expert witness.  The Commission modified an award of 25% PPD of the shoulder to PTD against the employer when it concluded that lack of notice did not preclude awarding additional disability for both arms and a psychiatric claim.  The Commission criticized the exhibits regarding medical bills and stated it would not serve as an advocate  but noted it went through "considerable difficulty" to find more than 23,000 in  bills compensable. 
Berend v Fasco Industries, 2012 Mo WCLR Lexis 189 (Nov. 8, 2012).
ALJ:  Fischer
Atty:  Allen
Experts:  Volarich, England

The claimant failed to prove she established timely notice as required by 287.420, according to a decision affirmed by the Commission in Cotter v Bakersfield R-IV School, 2010 Mo WCLR Lexis 197. Claimant alleged she required a C5-C7 fusion in 2005, as a result of lifting a 40 pound box of canned food in 2004. The administrative law judge noted claimant first provided written notice of a work related accident 5 months after her surgery, and found claimant's lack of any documented history of a work-related history significant. The lack of history was explained by the excuse that the topic did not come up. The claimant failed to overcome a finding of prejudice when her own expert testified that earlier treatment may have alleviated the need for surgery. An expert indicated that claimant's lack of medical treatment for a month was unexplained, as a ruptured disc would likely have caused immediate symptoms and a need to pursue earlier care. The administrative law judge declined to accept that the employer's personnel file was materially incomplete or that the employer was subject to a negative inference for not calling the former superintendent, who claimant reports she may have told about a work injury.

ALJ: Mahon
Atty: Alberhasty, Goodnight
Experts: Koprivica, Lennard, England

Claimant did not have a duty to report her carpal tunnel until October 2008 when Dr. Schlafly associated her condition to her employment. The commission found the employer's obligation that the 30 day reporting deadline began when a diagnostician made the connection. "Stray" comments that claimant had carpal tunnel and "does a lot of typing" was not sufficient to trigger a duty to report to her employer following an EMG study performed 5 months earlier.

The Commission noted 287.420 required notice of the "time" of injury, and notice was deficient when the claimant used a date of diagnosis (the EMG study) when there was no exposure or employment on the pled date. The employer, however, failed to demonstrate any evidence of prejudice as it had an opportunity to investigate the claim within 3 weeks of the EMG diagnosis, and had earlier knowledge of hand symptoms even months prior to the EMG study. The Commission in a separate opinion noted the employer misread Alcorn and 287.420.

The employer relied upon expert testimony that claimant had other risk factors for carpal tunnel syndrome including age, gender and obesity and asserted that claimant's activities were not hand intensive. The ALJ observed Dr. Crandall relied upon European studies and assumed ergonomic exposures were similar in this case: "Dr. Crandall relied on two studies from Denmark and New Zealand related to the relationship between CTS and typing. Dr. Crandall did not know the work habits and work stations of workers in New Zealand and Denmark. He assumed work stations in Denmark were similar to workstations in the United States because of his preference for House of Denmark Furniture." The case is Beckton v AT&T, 2011 Mo WCLR Lexis 114.
ALJ Carlisle
Atty: Evans, Cordes
Experts: Sclafly, Crandall