Brown v. Ozark Christian Schools of Neosho

• Decision Date: 05 January 1993
• Docket Number: No. 18346,18346
• Citation: 847 S.W.2d 888
• Parties: 81 Ed. Law Rep. 642 Sharlene BROWN and Kevin Clark Brown, Respondents, v. OZARK CHRISTIAN SCHOOLS OF NEOSHO, Appellant.
• Court: Missouri Court of Appeals

Page 888

847 S.W.2d 888

81 Ed. Law Rep. 642

Sharlene BROWN and Kevin Clark Brown, Respondents, v. OZARK CHRISTIAN SCHOOLS OF NEOSHO, Appellant.

No. 18346.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 5, 1993.

Motion for Rehearing and Transfer

Denied Jan. 26, 1993.

Application to Transfer Denied March 23, 1993.

Ronald G. Sparlin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for appellant.

W. Stephen Nixon, Ahmann, Stewart & Nixon, P.C., Independence, for respondents.

CROW, Presiding Judge.

Ozark Christian Schools of Neosho ("Employer") appeals from an award by the Labor and Industrial Relations Commission ("Commission") of benefits under The Workers' Compensation Law, chapter 287, RSMo 1986, as amended, for the death of Phillip Clark Brown ("Employee"), killed by accident September 13, 1985. The sole issue is whether the claim is barred by § 287.430, RSMo Cum.Supp.1983, ¹ which reads, in pertinent part:

No proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed ... within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death; provided, however, that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death....

Our narrative of the facts is limited to those pertinent to this issue.

The fatality arose out of and in the course of Employee's employment by Employer. When the accident occurred, Employer was subject to The Workers' Compensation Law, but had not insured its liability with an insurance carrier and had not been approved as a self-insured employer. Employer never filed a report of Employee's death with the Division of Workers' Compensation ("Division").

Employee was survived by his wife, Sharlene Brown, and his son, Kevin Clark Brown (born September 20, 1976).

Employer contracted with a funeral home to pay the bill for Employee's funeral. Employer paid nothing to Employee's widow or son.

Employer made payments to the funeral home as follows: January 20, 1989, $200; May 11, 1989, $800; September 8, 1989, $800; January 4, 1990, $800. ²

Employee's widow and son ("Claimants") filed a claim for workers' compensation benefits with the Division on July 25, 1990.

An administrative law judge ("ALJ") of the Division awarded "past due benefits" of a specific amount to Employee's widow and "past due benefits" in a like amount to Employee's son. ³ The ALJ also awarded Employee's widow "future compensation" in lump sum.

The ALJ held the widow's claim was not barred by § 287.430, RSMo Cum.Supp.1983 (quoted in pertinent part earlier). The ALJ determined Employer was obligated to pay $2,000 of Employee's funeral expenses. ⁴ The ALJ ruled Employer's payments on Employee's funeral bill "tolled the statute [of limitations]" and the widow's claim "was validly filed within two years of the last payment on the funeral bill."

Employer filed an application for review with the Commission, averring the ALJ misinterpreted or misapplied § 287.430 and "erroneously held that the widow's claim is not barred by the statute of limitations."

The Commission affirmed the ALJ's award.

Employer's lone point relied on reads:

The ... Commission erred as a matter of law in finding that the statute of limitations had not run on ... Sharlene Brown's claim because payments made by [Employer] on [Employee's] funeral bill were not, for purposes of [s] 287.430, R.S.Mo., made under Chapter 287, R.S.Mo. and, therefore, did not ... toll the applicable statute of limitations.

Resolution of this point requires a study of the evolution of relevant statutory and case law.

In Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130 (1932), a worker sustained a fatal on-the-job injury. His widow filed a claim for benefits under the "Workmen's Compensation Act" (as it was then called). One of the company's defenses was that the claim was barred by § 3337, RSMo 1929, which read, in pertinent part:

No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed ... within six months after the injury or death, or in case payments have been made on account of the injury or death, within six months from the date of the last payment....

Another statute, § 3319, RSMo 1929, was pertinent to the timeliness issue. It read, in pertinent part:

If the injury causes death ... the compensation therefor shall be as provided in this section.

(a) ... the employer shall pay direct to the persons furnishing the same the reasonable expense of the burial of the deceased employe not exceeding one hundred and fifty dollars, and ... the reasonable expense of his last sickness not exceeding two hundred and fifty dollars....

The company's insurance carrier paid the medical and hospital bills for the worker's last illness. The widow filed her claim for compensation within six months after that payment, but more than six months after the worker's death. The company and its insurer argued the payment of the medical and hospital bills did not toll the statute of limitations because, according to them, the payment was not made under the Workmen's Compensation Act. The insurer's claim agent testified he handled the case "on the theory that it was a case involving common law negligence." 50 S.W.2d at 135.

The Supreme Court of Missouri held:

The expense of "last sickness" ... [is] expressly referred to in the act as "compensation," and any such expense ... must have been "on account of the injury" to claimant's husband.... The commission properly concluded that under the plain terms of the act payment of these bills was a payment of compensation "made on account of the injury" to claimant's husband.

.... Since the Compensation Act plainly states that in case of payment made "on account of the injury" a claim for compensation can be filed within six months from the date thereof, it will not be set at naught by what the insurer's claim agent thought as to whether liability was at common law or under the Compensation Act 50 S.W.2d at 134-35. The Supreme Court affirmed the Commission's award of benefits to the widow.

Elsas was followed in McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911 (1933), where the Supreme Court held a payment by the employer to the physician who treated the injured worker was a payment "on account of the injury" within the meaning of § 3337, RSMo 1929. Consequently, a claim for compensation filed within six months after the payment was timely. The Supreme Court rejected the employer's contention that the payment was under a contract between the employer and the physician and had no reference to the Workmen's Compensation Act. 61 S.W.2d at 914-15.

A similar result was reached in Parker v. St. Louis Car Co., 145 S.W.2d 482 (Mo.App.1940), overruled on other grounds, Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, 856 (1943). In Parker, the employer argued payments to a physician who treated the injured worker were gratuitous and not made under the Workmen's Compensation Law. Citing Elsas, the Parker court held such payments constituted compensation, hence a claim by the worker filed within six months after the payments was timely. 145 S.W.2d at 485.

This Court applied the same rationale in Skinner v. Dawson Metal Products, 575 S.W.2d 935 (Mo.App.1978). By then, the six-month limitation in § 3337, RSMo 1929, had been lengthened to one year. § 287.430, RSMo 1969. But for that, the pertinent part of § 3337 (quoted earlier) remained unchanged in § 287.430, RSMo 1969. In Skinner, the injured worker's claim was filed more than one year after the injury, but within one year after payment of benefits to her and payment of medical bills for her treatment. This Court held such payments were "on account of the injury" within the meaning of § 287.430, RSMo 1969; consequently, the claim was timely. 575 S.W.2d at 941.

Skinner also noted § 287.430, RSMo 1969, was a statute of repose. 575 S.W.2d at 941. This becomes important when we consider the 1980 amendment to that section, infra.

A statute of repose was explained by the Supreme Court of Missouri in Wentz, 175 S.W.2d at 853-57. There, a worker was injured April 26, 1941. At that time--as we have seen--a claim for Workmen's Compensation benefits had to be filed within six months after the injury. On October 10, 1941, an amendment to the statute of limitations took effect, extending the period to one year. The worker filed a claim December 26, 1941, more than six months after the injury but within one year after it. This presented the obvious question of whether the amendment applied to claims existing when it took effect, or only to claims accruing thereafter. If the former, the worker's claim was timely; if the latter, it was barred. Id. at 853.

The Supreme Court declared a statute which affects only the remedy may properly apply to a claim which has already accrued and is existing at the time the statute is enacted. Id. Ordinary statutes of limitation are held to affect the remedy only. Id. This is in contrast to a class of statutes creating a right with a special limitation appended to the exercise of the right. Id. at 854. Under statutes of this type, expiration of the period for exercising the right extinguishes the right, not merely the remedy. The Supreme Court examined sundry authorities, then concluded the statute of limitations for Workmen's Compensation claims (then § 3727, RSMo 1939, amended 1941) was a statute of repose affecting the remedy only, not the right. Thus, the worker's claim was not extinguished when six months passed after her injury; she lost only her remedy. Because the one-year limitation took effect within six months after the injury (while her remedy still...