Guinn v. Treasurer of State

• Decision Date: 20 June 2019
• Docket Number: No. SD 35694,SD 35694
• Citation: 577 S.W.3d 847
• Parties: Phillip GUINN, Claimant-Appellant, v. TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent-Respondent.
• Court: Missouri Court of Appeals

577 S.W.3d 847

Phillip GUINN, Claimant-Appellant,

v.TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent-Respondent.

No. SD 35694

Missouri Court of Appeals, Southern District, Division Two.

Filed: June 20, 2019

ATTORNEY FOR APPELLANT – E. JOSEPH HOSMER, Springfield, MO.

ATTORNEY FOR RESPONDENT – CARA L. HARRIS, Springfield, MO.

MARY W. SHEFFIELD, J.

Phillip Guinn ("Guinn") appeals from a final award entered by the Labor and Industrial Relations Commission (the "Commission"), denying his claim for benefits from the Second Injury Fund (the "Fund") for hearing loss and tinnitus. Guinn claimed that he suffered hearing loss and tinnitus as a result of his exposure to industrial noise while working at Solo Cup Company ("Solo Cup"). The Commission denied compensation because it found that both his claims were barred by the statute of limitations. Guinn contends that the statute of limitations does not bar his claims. For the reasons that follow, this Court reverses and remands.

Factual and Procedural Background

Guinn, born in December 1949, began work at Solo Cup in 1987, where he was exposed to harmful industrial noise over a prolonged period of time.¹ As a result of this exposure he sustained a disability in the form of hearing loss. There was an "excessive noise level" in the area where Guinn worked. By 1993, Guinn's hearing tests performed at Solo Cup's direction "began to show a threshold shift." By 2005, he had a "calculated hearing impairment" of 15.0 for the left ear and 17.5 for the right ear. Guinn also experienced "ringing in his ears possibly as early as 1987-1989." This ringing in his ears continued at the same level through the time of the hearing before the Administrative Law Judge (ALJ) in 2017. Around March 1, 2006, Guinn left his job at Solo Cup.

On January 17, 2013, Guinn filed his claim against Solo Cup, alleging hearing loss and tinnitus. On May 22, 2013, Dr. P. Brent Koprivica conducted an independent medical examination, where he opined that Guinn's hearing loss was caused by occupational exposure at Solo Cup. He also opined that Guinn had tinnitus related to work exposure at Solo Cup. On April 11, 2014, Guinn settled his claim against Solo Cup. On May 7, 2014, Guinn filed his claim against the Fund for the occupational diseases of hearing loss and tinnitus.²

In January, 2017, a hearing was held before the ALJ, who rendered its award in favor of Guinn. The Fund appealed this decision, and the Commission reversed the ALJ's decision in a split 2-1 decision. In its Findings of Fact, the Commission found, contrary to the ALJ's decision, that it was "reasonably discoverable and apparent to [Guinn] that he had sustained an injury related to his occupational exposure on January 17, 2013[,]" the date that Guinn filed his claim against Solo Cup. The Commission found that on January 17, 2013, the statute of limitations for claims against the Fund began to run. Accordingly, Guinn's claims for hearing loss and tinnitus were "barred unless [they were] filed either within one year of January 17, 2013, or two years from the date of injury, whichever is later." The Commission used March 1, 2006 as the relevant date of injury under § 287.430³ as it was "identified by [Guinn] in his claim and used throughout this proceeding[.]" The Commission found that since Guinn did not file his claim against the Fund until May 7, 2014, it was time-barred because May 7, 2014 was over a year after January 17, 2013 and more than two years after March 1, 2006.

In a footnote, the Commission acknowledged the provisions of § 287.197.7 and "Division rule 8 CSR 50-5.060(8)" that relate to claims for occupational deafness. The Commission determined that:

Because we conclude that [Guinn]’s claim against the Second Injury Fund alleging both tinnitus and hearing loss was, in any event, untimely filed pursuant to § 287.430, we need not consider or determine herein whether those authorities should be read to require us to impose an earlier two-year statute of limitations running [from] the "date of disability" (here, April 1, 2006), or alternatively whether those authorities describe an independent tolling mechanism modified by the "reasonably discoverable and apparent" test set forth under § 287.063.3.^{[4 ]}

Standard of Review

Appeals of the Commission's decision are governed by the Missouri Constitution and § 287.495. "On appeal, this Court reviews the Commission's decision to determine if it is ‘supported by competent and substantial evidence upon the whole record.’ " Johme v. St. John's Mercy Healthcare , 366 S.W.3d 504, 509 (Mo. banc 2012) (quoting Mo. Const. Art. V, § 18 ). See also Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 222-23 (Mo. banc 2003). On appeal, this Court:

may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) [t]hat the [C]ommission acted without or in excess of its powers;

(2) [t]hat the award was procured by fraud;

(3) [t]hat the facts found by the [C]ommission do not support the award; [or]

(4) [t]hat there was not sufficient competent evidence in the record to warrant the making of the award.

§ 287.495.1, RSMo (2000).

Accordingly, "[w]e defer to the Commission's findings as to weight and credibility of testimony and are bound by its factual determinations." Patterson v. Cent. Freight Lines , 452 S.W.3d 759, 764 (Mo. App. E.D. 2015). "However, this court reviews questions of law independently and is not bound by the Commission's conclusions of law or its application of the law to the facts." Id. In reviewing a decision of the Commission, this Court reviews the "findings of the Commission and not those of the ALJ." Lawrence v. Anheuser Busch Cos. , 310 S.W.3d 248, 250 (Mo. App. E.D. 2010). This Court "will not substitute our judgment on issues of fact where the Commission acts within its powers, even if we would arrive at a different initial conclusion." Cook v. Missouri Highway and Transp. Comm'n , 500 S.W.3d 917, 923 (Mo. App. S.D. 2016). Questions of law are reviewed de novo. Id. The findings of ultimate facts that are reached through the application of rules of law, not by natural reasoning based on the facts alone, are conclusions of law and are reviewable for either misstatement or misapplication. McGhee v. W.R. Grace & Co. , 312 S.W.3d 447, 451 (Mo. App. S.D. 2010). The hearing loss and tinnitus claims must be independently evaluated because they are separate compensable injuries. Kersey v. Autry Morlan, Inc. , 388 S.W.3d 644, 649 n.6 (Mo. App. S.D. 2013).

Loss of Hearing

The first issue we address is the Commission's determination that Guinn's claim for hearing loss was barred by the statute of limitations. The analysis of a statute of limitations defense involving a claim against the Fund begins with § 287.430, which 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.

...

A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later ....

§ 287.430 (emphasis added). The relevant inquiry is: what was the date of injury for Guinn's occupational disease of hearing loss?⁵

When an employee is injured by a distinct event that occurs at a particular point in time, determining the date of injury is straightforward. See McGhee , 312 S.W.3d at 455. That is not true of an occupational disease, by which an employee is injured through a process that occurs gradually over time. See id . For this reason, the statute of limitations set forth in § 287.430 is modified when an occupational disease is involved.

A Chapter 287 occupational disease is defined as "an identifiable disease arising with or without human fault out of and in the course of the employment." § 287.067.1. The description of occupational disease in § 287.067 explicitly includes a category for hearing loss due to industrial noise:

"Loss of hearing due to industrial noise" is recognized as an occupational disease for purposes of this chapter and is hereby defined to be a loss of hearing in one or both ears due to prolonged exposure to harmful noise in employment. "Harmful noise" means sound capable of producing occupational deafness.

§ 287.067.4 (emphasis in original). When a claim of occupational disease is involved, the "date of injury" language in § 287.430 is modified in the following fashion:

The statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, except that in cases of loss of hearing due to industrial noise said limitation shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197.

§ 287.063.3. We are required to strictly construe this language. § 287.800.1. Therefore, this Court is not authorized to add words to, subtract words from, or ignore the plain meaning of words chosen by the legislature. Dickemann v. Costco Wholesale Corp. , 550 S.W.3d 65, 68 n.5 (Mo. banc 2018). Because loss of hearing due to industrial noise is an occupational disease, the statute of limitations on Guinn's hearing loss claim did not begin to run until it was reasonably discoverable and apparent to Guinn that he had sustained an injury related to noise exposure. The Commission made a factual finding that this occurred on January 17, 2013. Therefore, the Commission misapplied the law by using March 1, 2006 as the date of injury and by deciding that Guinn's hearing loss claim was barred by the statute of limitations.

Our...