Tuesday, August 28, 2018

Court equates notice of accident as notice of latent back "injury"

The court of appeals affirmed an award of benefits and rejected the employer's notice defense when Jones reported an accident but did not initially provided notice of a back injury 2 1/2 months later.  Harley-Davidson Motor Co. v Kenneth Jones, WD 81155 (Aug 22, 2018).

Jones alleges in 2011 he twisted his body when he was jerked while handling a pneumatic gun used to assemble motorcycle parts.  He was initially diagnosed with an elbow sprain and reported he aggravated prior medical conditions involving his arm and shoulder. Claimant states the next day he began to experience back pain and about 10 weeks later.  He went to an emergency room because his back pain became intolerable.  A doctor concluded the torque accident was the prevailing factor in pain despite prior spondylolisthesis.   Claimant sought treatment on his own when the employer refused to provide care for the back.  The commission awarded $39,205.64.

The employer denied any injuries to the BAW and asserted a notice defense because claimant did not provide notice of the address of the person injured as required by 287.420 or the nature of the injury as claimant did not report a "back" injury.  The court of appeals found that 287.420 requirement to provide notice of the "injury" does not require notice of the "injured' body part, but notice of a "work-related injury" and of an "accident."  The court distinguished the case from Soos v Mallinckrodt Chemical Co., 19 S.W.3d 683 (Mo. App. 2000). in which the employee provided no notice of an accident for 2 months which allowed no opportunity to investigate the circumstances of the case.   The court notes Harley-Davidson had knowledge of a work-related connection when the employer had actual knowledge of the accident and claimant advised the employer his back hurt after the doctor  told him the condition was work related.  The court notes the employer  took no further action to timely investigate the claim or to minimize any exacerbating of disability.

The employer argued the Commission did not make specific findings with an evidentiary basis by deferring to a finding that does not exist when it noted  the ALJ made implicit findings of credibility.  The court notes other portions of the award in which the ALJ expressly found claimant credible. 

Hon.  Gabbert.