Austin v. Am Mech. Servs.

• Decision Date: 10 March 2020
• Docket Number: WD 82778
• Citation: 604 S.W.3d 665
• Parties: Clifford AUSTIN, Appellant, v. AM MECHANICAL SERVICES, Respondent, Treasurer of the State of Missouri - Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

604 S.W.3d 665

Clifford AUSTIN, Appellant,

v. AM MECHANICAL SERVICES, Respondent,Treasurer of the State of Missouri - Custodian of the Second Injury Fund, Respondent.

WD 82778

Missouri Court of Appeals, Western District.

OPINION FILED: March 10, 2020 Application for Transfer to Supreme Court Denied September 1, 2020

Keith V. Yarwood, Kansas City, MO, for appellant.

Kimberly R. Fournier and Eric W. Lowe, Kansas City, MO, for respondent Missouri State Treasurer.

John B. Rathmel, Overland Park, KS, for respondent AM Mechanical Services.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

Clifford Austin ("Austin") appeals from a final order entered by the Labor and Industrial Relations Commission ("Commission") denying his workers' compensation claim which sought temporary total and permanent partial disability benefits from AM Mechanical Services ("Employer") and permanent total disability benefits from the Second Injury Fund ("Fund"). The Commission concluded that Austin's workers' compensation claim was barred because it was filed outside of the three-year statute of limitations described in section 287.430.¹ Because the Commission erroneously declared and applied the law, we reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background²

In November 2010, Austin began working for Employer as a sales and service manager. Austin was offered and accepted the job with Employer in a telephone conversation which occurred while Austin was at his home in Missouri. Austin worked, however, at Employer's warehouse in Olathe, Kansas. On March 10, 2011, Austin was injured while climbing a ladder to retrieve a part located on an upper shelf.

Employer's workers' compensation insurer, AMCO Insurance Company ("AMCO"), paid Austin temporary total disability benefits at the rate of $545 per week for 93 weeks from March 11, 2011 through December 21, 2012. This was the applicable weekly wage rate for temporary total disability benefits in Kansas.

On February 28, 2013, a Kansas administrative law judge approved a settlement agreement between Austin, Employer, and AMCO. The settlement agreement required AMCO to pay Austin the lump sum of $49,315 for permanent partial disability benefits. The settlement agreement purportedly provided that Austin was "closing out" all injuries and all claims arising out of his March 10, 2011 workplace accident in all jurisdictions.

On September 23, 2015, Austin filed a workers' compensation claim with the Missouri Division of Workers' Compensation ("Division") arising out of the March 10, 2011 workplace accident. Austin's claim sought additional compensation from Employer, (who was also insured by AMCO in Missouri), in the amount of $11,314.38, representing the difference between Missouri's weekly wage rate for temporary total disability benefits of $666.67 and the weekly wage rate authorized in Kansas. Austin's claim also relied on preexisting disabilities to request an award of permanent total disability benefits from the Fund.³

Following a hearing, an administrative law judge ("ALJ") denied Austin's claim. The ALJ found that Austin's claim against Employer was barred by the Kansas workers' compensation settlement agreement, and by the three-year statute of limitations described in section 287.430. The ALJ found that Austin's claim against the Fund was not barred by the Kansas workers' compensation settlement agreement, but was barred by the three-year statute of limitations described in section 287.430.

Austin appealed the ALJ's determination to the Commission. The Commission entered its award ("Final Award") affirming the ALJ's determination to deny compensation to Austin. However, the Commission did so with a supplemental opinion that relied solely on the statute of limitations described in section 287.430. The Final Award noted that the Commission did "not endorse the other analysis in the [ALJ's] decision as it is not necessary for the resolution of this matter."

Austin timely appeals.

Standard of Review

Section 287.490.1 controls our review of the Final Award:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(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;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

We review the findings and award of the Commission rather than the ALJ, "to the extent that [the Commission's ruling] departs from the ALJ's ruling." Small v. Red Simpson , 484 S.W.3d 341, 344 (Mo. App. W.D. 2015). "To the extent that the Commission affirms and adopts the ALJ's findings and conclusions, we review the ALJ's findings and conclusions." Id. While we defer to the Commission's factual findings, " ‘we review issues of law, including the Commission's interpretation and application of the law, de novo. ’ " Nivens v. Interstate Brands Corp. , 585 S.W.3d 825, 831 (Mo. App. W.D. 2019) (quoting Lawrence v. Treasurer of State-Custodian of Second Injury Fund , 470 S.W.3d 6, 12 (Mo. App. W.D. 2015) ).

Analysis

The sole issue on appeal is whether the Commission erroneously concluded that Austin's claims for Missouri workers' compensation benefits against Employer and the Fund were time-barred pursuant to section 287.430.⁴

Section 287.110.2 provides that "[t]his chapter shall apply to all injuries received ... outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide...."⁵ " ‘Where the applicant accepts an employment offer over the telephone while he is in Missouri, the employment contract is deemed to have been made in Missouri.’ " Small , 484 S.W.3d at 346 (quoting Liberty v. Treasurer for State-Custodian of Second Injury Fund , 218 S.W.3d 7, 10 (Mo. App. W.D. 2007) ). The ALJ determined that Austin accepted employment with Employer in Missouri over the telephone. Though the Commission's Final Award did not endorse the ALJ's "analysis" of any issues beyond the statute of limitations, the Commission did not reject any of the ALJ's factual findings, many of which were essential to discussion of the statute of limitations issue. Accordingly, the Division, as well as the State of Kansas, have jurisdiction over Austin's March 10, 2011 workplace injury.

Section 287.430⁶ requires a claim for workers' compensation benefits to be filed with the Division within two years of the date of injury or the "last payment made under this chapter on account of the injury[.]" However, the limitations period of two years is extended to three years from the date of injury or "last payment made under this chapter on account of the injury" when an employer fails to file a "report of the injury ... as required by section 287.380." Section 287.430. Section 287.380 requires an employer or insurer to file a report with the Division within thirty days of any employee's injury.

Employer and AMCO failed to file a report with the Division within thirty days of Austin's March 10, 2011 workplace injury. As a result, Austin was required to file his claim with the Division by the later of three years after the date of his March 10, 2011 injury or the "last payment made under this chapter on account of the injury." Austin's claim, which was filed on September 23, 2015, was not filed with the Division within three years of his March 10, 2011 injury. The question, therefore, is whether Austin's claim was filed within three years of the "last payment made under this chapter on account of [Austin's] injury."

Austin contends that weekly temporary total disability benefits he was paid through December 2012, and the lump sum settlement payment he received on February 28, 2013 for permanent partial disability benefits, were payments made by Employer or AMCO "under this chapter on account of [Austin's] injury." Employer and the Fund disagree. Resolution of this dispute requires us to determine the meaning of "under this chapter."

This very issue was addressed in Small , where an employee filed a claim for workers' compensation benefits in Missouri after receiving workers' compensation benefits in Texas following a Texas workplace injury. 484 S.W.3d at 342-44. Small held that any payment made by an employer or its insured to an injured employee to compensate for a category of recovery for which the employer would be obligated under chapter 287 is a payment "under this chapter" on account of the employee's injury regardless the reason for the payment. Id. at 346-47.

Regardless whether Mr. Small received the payments gratuitously, ... or under the Texas workers' compensation law or a compromise settlement, the payments his employer and its insurer made for his ongoing medical problems directly stemming from the ... workplace injury were payments the employer was required to make under the Missouri Workers' Compensation Law. Accordingly, the payments were made "under this chapter."

Id. at 346.

The Commission acknowledged, but disregarded, the holding in Small . Employer and the Fund argued, and the Commission agreed, that Small involved a 1995 workplace injury that was subject to the pre-2005 version of chapter 287 which required liberal, and not strict, construction. According to the Commission, the 2005 amendment of Chapter 287 to now require strict construction of chapter 287 necessitates interpreting the phrase "under this chapter" more narrowly than we did in Small . See section 287.800.1 (RSMo 2005 ). We disagree.

The Commission improperly pigeon-holed Small as a "liberal construction" case, and ignored Dungan v. Fuqua Homes, Inc. , 437 S.W.3d 807 (Mo. App. W.D. 2014), which was favorably cited by Small . 484 S.W.3d at 346-47. In Dungan , the...