Dungan v. Fuqua Homes, Inc.

• Decision Date: 19 August 2014
• Docket Number: No. WD 77068.,WD 77068.
• Citation: 437 S.W.3d 807
• Parties: Robert DUNGAN, Appellant, v. FUQUA HOMES, INC., Respondent.
• Court: Missouri Court of Appeals

437 S.W.3d 807

Robert DUNGAN, Appellant,

v.FUQUA HOMES, INC., Respondent.

No. WD 77068.

Missouri Court of Appeals,

Western District.

May 27, 2014.

Application for Transfer to Supreme Court Denied June 24, 2014.

Application for Transfer Denied Aug. 19, 2014.

Tom Pirmantgen, Jefferson City, MO, Attorney for Appellant.

Jason M. Lloyd and Jeffrey D. Slattery, Kansas City, MO, Attorneys for Respondent.

Before Division One: JOSEPH M. ELLIS, Presiding Judge, and KAREN KING MITCHELL and ANTHONY REX GABBERT, Judges.

KAREN KING MITCHELL, Judge.

Robert Dungan appeals from a final award entered by the Labor and Industrial Relations Commission in a workers' compensation case. In his sole point on appeal, Dungan contends that the Commission erred in concluding that his claim for benefits was not timely filed under section 287.430.¹ Finding no error, we affirm.

Factual and Procedural Background ²

On December 18, 2008, Robert Dungan was injured in an accident arising out of and in the course of his employment with Fuqua Homes, Inc. Dungan slipped on snow and ice as he was getting tools and supplies out of his trailer to perform some work on a house. He hit his head on the ground and lost consciousness. He suffered injury to his neck. Dungan had never had neck pain before the December 2008 workplace injury, nor had he had any x-ray, CT scan, MRI or other scan of his neck before that date.

Fuqua Homes timely filed a report of injury with the Division on January 8, 2009. Fuqua Homes' insurer accepted the injury and made its last payment for medical treatment on February 19, 2009. As time went by, Dungan's neck pain grew worse. “In late 2010, early 2011,” Dungan started talking to the production manager and plant manager at Fuqua Homes about obtaining additional medical treatment, and he testified that they told him they were going to support him with getting his injury “taken care of.”

On November 11, 2010, less than two years after injury, Dungan sought treatment for his neck.³ Dungan testified that the insurance adjuster for Fuqua Homes' insurer “never authorize[d] me to receive treatment. He said you seek treatment upon your own self.” Dungan testified that while he was at the doctor's office in November 2010, he spoke with a representative of the insurer, who told him “you got to do what you got to do” and that he “might even have to seek ... legal action or whatever.” Dungan further testified that the adjuster told him “that if I seek treatment I would be seeking it on my own. He didn't say one way or the other who would be paying for it.” Dungan received treatment and payment was made by his personal insurance. Dungan testified that he “just thought at that time everything was being taken care of, and then come to find out that my own insurance company picked it up and started paying on the bills.” When asked if he specifically requested anyone with the employer or insurer to make payment on bills that were connected with his November 2010 treatment, Dungan testified that he “thought it was being taken care of automatically,” and that he told the doctor's staff that it was workers' compensation, but they also wanted his insurance information.

On October 31, 2011, Dungan, acting pro se, filed his claim for compensation with the Division of Workers' Compensation. On April 8, 2013, the case was presented before the Division, with Dungan seeking an award for medical treatment. Two legal issues were presented: 1) whether Dungan sustained an injury requiring medical care; and 2) whether the claim for compensation was timely filed under Chapter 287. The Division concluded that the claim was not timely filed and therefore dismissed the claim and determined that the medical care issue was moot. After a timely application for review, the Commission affirmed the Division's award and entered a Final Award Denying Compensation. Dungan appeals.

Standard of Review

This court reviews final awards of the Commission pursuant to section 287.495.1, which provides:

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.

Thompson v. ICI Am. Holding, 347 S.W.3d 624, 629 (Mo.App.W.D.2011). “ ‘When, as here, the Commission affirms or adopts the findings of the ALJ, we review the decision and findings of the ALJ as adopted by the Commission.’ ” Id. (quoting Lawrence v. Anheuser Busch Cos., 310 S.W.3d 248, 250 (Mo.App.E.D.2010)). As the issue in this case is a question of law, our review is de novo. Id.

Analysis

Dungan's sole point on appeal is that the Commission erred in concluding that his claim for workers' compensation benefits was not timely filed under section 287.430. Dungan contends that his claim was timely because it was filed within two years of the date of the last medical payment made under Chapter 287 in that his personal insurance company made payment within two years of the date of the injury, and his claim for compensation was filed less than a year after that payment.

Section 287.430 provides, in relevant part:

Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division 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....

As Dungan acknowledges, he filed his claim more than two years after the date of injury, and the report of injury was filed as required. Therefore, his claim is timely only if it was filed with the Division within two years after the date of the last payment made under Chapter 287 on account of the injury.

In Bryan v. Summit Travel, Inc., this court addressed the issue of whether payment of an employee's medical bills by a party other than an employer or employer's insurer constitutes “payment made underthis chapter” within the meaning of section 287.430. 984 S.W.2d 185, 187 (Mo.App.W.D.1998), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). In Bryan, an employee filed a claim for workers' compensation benefits, and the Division of Workers' Compensation denied the employee's claim for failure to file within the applicable statute of limitations in section 287.430. 984 S.W.2d at 187. The Commission issued a final award denying compensation. Id. On appeal, the employee argued that “because medical bill payments were periodically made on her account by Medicaid and another insurance provider, the statutory period for filing a claim was tolled at least until the time that the last such payment was made.” Id. The court initially noted that prior to the amendment of section 287.430 in 1980, courts interpreted section 287.430 as providing “that the statutory period for filing a claim was ‘subject to being tolled by any payment made on account of the injury.’ ” ⁴Id. (quoting Blair v. Associated Wholesale Grocers, Inc., 593 S.W.2d 650, 652 (Mo.App.S.D.1980), overruled on other grounds by Hampton, 121 S.W.3d at 223, and citing Skinner v. Dawson Metal Prods., 575 S.W.2d 935, 941 (Mo.App.1978), overruled on other grounds by Hampton, 121 S.W.3d at 223). The court then determined that the amendment of the statute to include the language “ ‘under this chapter’ evidences the legislature's desire to toll the statutory period, not merely when payments of any kind are made on an injured employee's behalf generally, but rather only when such payments are specifically made pursuant to Chapter 287, the Worker[s'] Compensation Law.” Id. at 187–88. In affirming the Commission's finalaward denying compensation, the court noted that the payments made on account of the employee's injury were from Medicaid and the employee's spouse's insurer, “neither of which were furnished under Chapter 287.” Id. at 188. The court held that neither the employer nor the employer's insurance provider made any payments on account of the employee's injury; as a result, the payments “did not fall within the ambit of section 287.430.1 and, accordingly, did not toll the statute of limitations.” Id.

Dungan contends that Bryan is factually distinguishable from the present case because the employer in Bryan never made any payment on account of the injury and did not even have notice of a potential claim for about four years,⁵ whereas in this case, “the insurer specifically told him to seek care on his own, after having made payment on an immediately acknowledged and accepted claim, and did so within two years from the date of injury.” We find that these factual distinctions do not render the Bryan holding inapplicable to this case. Section 287.430 provides that “no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of ... the last payment made under this chapter on account of the injury or death.” The issues of whether the employer ever made payment under section 287.430 and whether the employer had notice of the injury are immaterial to our analysis of the issue in this case, as neither factor alters the statute's provision that a claim for compensation may not be filed more than two years after the date of the last payment made under the chapter. Our analysis considers only the date of the last payment made “under this chapter.” The fact that Fuqua Homes' insurer “specifically told [Dungan] to seek care on his own” does not change our analysis, as Dungan does not allege fraud or even that Fuqua Homes specifically represented that it would pay for his 2010 treatment.

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