Monday, January 18, 2021


Faulkner was employed as a custodian on the Washington University campus when she was injured by slipping on ice between two buildings on campus. Because she did not believe she was injured, Faulkner did not inform her employer of the incident. About ten days later, she noticed that her right knee, on which she had fallen, was swollen and painful. She went to her primary care physician and then to a surgeon. On March 31, 2010, which was about two months after her incident at work, Faulkner informed her employers about her injury and the treatment she had received, including her upcoming surgery.

Faulkner had not provided written notice until well after thirty days from her injury. However, the commission found that the employer had not suffered prejudice because the parties had stipulated to the time and place of the injury, to the injury being a work place injury, and that the injury caused 20% permanent partial disability. In the eyes of the commission, the employer was not prejudice by lack of notice because it stipulated to every factual issue that goes to compensability.

The Eastern District Court of Appeals considered the issue of timeliness of the notice of injury to an employer under ยง 287.420. That provision states that an employee cannot recover benefits for workplace injuries unless written notice is given to the employer within thirty days after the injury unless the employer was not prejudiced by the failure to receive notice.

The Court disagreed and stated that employers admission that claimants injury occurred in the course and scope of employment was not the same as an admission that employer suffered no prejudice. The Court found Faulkner still had a duty to prove that the lack of prejudice from the untimely notice and Faulkner offered no evidence. That burden remains with the claimant and does not shift until evidence of prejudice is offered. It cannot shift merely because an injury is conceded to be a workplace injury. Employer could still be prejudice by the inability to provide timely medical treatment to minimize the disability and be prejudice by the inability to secure the scene of the accident and investigate it.

Therefore the court reversed the decision of the commission and found that Faulkner did not provide reasonable notice and did not prove a lack of prejudice to employer.