Small v. Red Simpson, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: Thomas H. Newton, Judge
• Citation: Small v. Red Simpson, Inc., 484 S.W.3d 341 (Mo. App. 2015)
• Decision Date: 17 November 2015
• Docket Number: WD 78289
• Parties: Daniel Small, Appellant, v. Red Simpson, Inc., Respondent.

484 S.W.3d 341

Daniel Small, Appellant,

v.Red Simpson, Inc., Respondent.

WD 78289

Missouri Court of Appeals, Western District.

OPINION FILED: November 17, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied December 22, 2015

Application for Transfer Denied April 5, 2016

Mark Kelly, Liberty, MO, Counsel for Appellant.

Douglas Greenwald, Counsel, Samantha Benjamin–House, Co-Counsel, Kansas City, KS, for Respondent.

Before Division Four: Alok Ahuja, Chief Judge Presiding, Thomas H. Newton, Judge, and Charles H. McKenzie, Special Judge

Thomas H. Newton, Judge

Mr. Daniel Small appeals a Labor and Industrial Relations Commission (Commission) denial of a claim for benefits under the Missouri Workers' Compensation Law as untimely under section 287.430.¹ We reverse.

Mr. Small, a journeyman lineman, was residing in St. Ann, Missouri, in 1995 when he accepted an offer extended over the telephone by an individual who negotiated with him for a job that had been advertised by Red Simpson, Inc., a Louisiana-based company. He traveled to Beaumont, Texas, where he began working for Red Simpson as an electrical lineman for $15 per hour and company-provided meals and lodging. He sustained a significant electrical trauma on September 12, 1995, just days after beginning the work. The injury resulted in the amputation of his right arm at the forearm and severe scarring of his abdomen where the electricity exited his body. Mr. Small returned to Missouri for treatment at KU Medical Center in Kansas and Rockhill Orthopedics in Kansas City, Missouri. He has remained in Missouri and was able to secure employment in a variety of capacities until he fell off a ladder while installing satellite dishes in 2008 and was rendered totally disabled, in the view of a vocational rehabilitation counselor. Mr. Small testified to ongoing medical problems relating to the workplace accident in Texas, including phantom pain, heartburn, shoulder pain, and irritation from his prostheses.²

Red Simpson and its insurer, Insurance Company of the State of Pennsylvania, have paid Mr. Small $268,436.96 in medical expenses and $97,380.71 in indemnity benefits. The other facts to which the parties stipulated are as follows:

Daniel Small sustained a compensable, work-related injury while working in Texas for the Employer on September 12, 1995.

Daniel Small pursued a workers compensation claim in the State of Texas in connection with his September 12, 1995, work accident.

Mr. Small's Missouri average weekly wage would be $735.42, which would yield compensation rates of $490.28 for temporary total disability and $257.29 for permanent partial disability.

The Employer/Insurance Carrier paid $22,934.25 in temporary total disability benefits in connection with the Texas workers compensation claim. Those benefits were paid from September 15, 1995, through April 21, 1997, at a weekly rate of $392.00. The Employer/Insurance Carrier made two additional TTD payments between April 21, 1997, and November 24, 1997, at the rate of $307.12.

Daniel Small was temporarily and totally disabled from 9/13[/95]—4/21/97.

The Employer/Insurance Carrier paid $63,446.46 in permanent partial disability benefits in connection with the Texas workers compensation claim. Those benefits were paid at three different compensation rates—$327.69, $285.51, and $285.57.

The Employer/Insurance Carrier have not paid any indemnity benefits to Mr. Small in connection with his 1995 injury since August 3, 2000.

No payments of any kind were paid by the Employer/Insurance Carrier in connection with Mr. Small's claim from October 31, 2003, through August 7, 2006.

Employer/Insurance [Carrier] is responsible for future medical payment reasonably necessary to cure or relieve the effects of the injury.

Mr. Small filed a claim for Missouri workers' compensation benefits on September 14, 2009. The claim described the Texas workplace accident and stated, "The statute of limitations has been tolled by Employer's/Insurer's continual provision of medical treatment and failure to file a Missouri Report of Injury." Following a hearing, a Division of Workers' Compensation Administrative Law Judge (ALJ) denied the claim, finding it time barred. According to the ALJ,

Assuming arguendo the employer had to file a report of injury in Missouri, claimant had the opportunity to file a claim in Missouri either three years after the 1995 injury or the last payment made under this chapter. I find the last payment made pursuant to ANY Workers' Compensation statute was on August 3, 2000, when the permanent partial disability benefits were paid. After August 3, 2000, the benefits being provided were pursuant to the Texas compromise settlement[,] and claimant filed an untimely claim by filing his claim for compensation nine years after reaching a compromise settlement in Texas.

The ALJ also noted that all payments were made under Texas law.

Mr. Small sought review before the Commission, which affirmed for a different reason. According to the Commission, section 287.380 "only requires employers and insurers in this state to file a report of injury." Because the employer did not have an office or place of business in Missouri, the Commission determined that it was not "in this state," was not required to file the report, and thus Mr. Small "has not established that he is entitled to the benefit of the three-year claim filing period set forth in § 287.430 RSMo." While adopting the ALJ's other findings, conclusions, award, and decision, the Commission concluded as follows:

The parties stipulated that employer made no payments to employee on account of his work injury during the period October 31, 2003, through August 7, 2006. Because the claim-filing period of § 287.430 is a statute of extinction and not of repose, employee's remedy and his right under the statute were extinguished no later than October 30, 2005—two years after the October 31, 2003, payment. Employee filed his claim for compensation on September 17, 2009 [the date it was received]. Employee's claim is barred by the statute of limitations set forth in § 287.430.

Mr. Small raises one point on appeal: whether the Commission erred in creating "additional requirements not mandated under the statute when [it] found Respondent Red Simpson, Inc. was not required to file a Report of Injury pursuant to § 287.380 RSMo., and, therefore, only applied a two-year statute of limitations."

We review final Commission awards under section 287.495.1, RSMo 2000, which states:

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.

Because the issue here raises a question of law, our review is de novo. Dungan v. Fuqua Homes, Inc., 437 S.W.3d 807, 809 (Mo. App. W.D. 2014). We also review the findings and award of the Commission rather than those of the ALJ, to the extent that it departs from the ALJ's ruling. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 505 (Mo. App. S.D. 2011). To the extent that the Commission affirms and adopts the ALJ's findings and conclusions, we review the ALJ's findings and conclusions. Id.

Legal Analysis

According to the parties, the issue is one of first impression and requires that we interpret "in this state" under section 287.380.1, which provided, in relevant part, when Mr. Small was injured:

every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within ten days after knowledge of an accident resulting in personal injury to any employee notify the division thereof, and shall, within one month from the date of filing of the original notification of injury, file with the division under such rules and regulations and in such form and detail as the division may require, a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work, or compensation hereunder had he accepted this chapter, ...

Whether an employer has filed a report has implications for the limitations period for filing a claim. Section 287.430.1 states that a two-year limitation applies to every claim,

except 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.

The workers' compensation law in effect when Mr. Small was injured included the requirement that it be "liberally construed with a view to the public welfare." § 287.800.1. The strict construction standard adopted in an amendment to the law that occurred after Mr. Small was injured may not be applied retroactively. Eason v. Treasurer of State—Custodian of Second Injury Fund, 371 S.W.3d 886, 889–90 (Mo. App. W.D. 2012). As we noted in Eason,"because strict versus liberal statutory construction may affect substantive issues, the liberal construction standard set forth in section 287.800, RSMo 2000, prior to amendment, is the applicable standard for [the claimant's] case." Id. We further observed that this liberal standard "requires a broad interpretation of the workers' compensation laws such that benefits are extended to the largest possible class, and any doubts as to the right of compensation are resolved in favor of the employee." Id. at 890. See also Bass v. Nat'l Super Mkts., Inc., 911 S.W.2d 617, 621 (Mo. banc 1995) (stating, "until directed by the legislature to embark on another course, courts must continue to give the Act a...