TREASURER of The State of Mo.-CUSTODIAN of The SECOND INJURY FUND v. COOK

• Decision Date: 26 October 2010
• Docket Number: No. WD 72019.,WD 72019.
• Citation: 323 S.W.3d 105
• Court: Missouri Court of Appeals
• Parties: TREASURER OF THE STATE OF MISSOURI-CUSTODIAN OF THE SECOND INJURY FUND, Appellant, v. Phillip COOK, Respondent.

323 S.W.3d 105

TREASURER OF THE STATE OF MISSOURI-CUSTODIAN OF THE SECOND INJURY FUND, Appellant,

v.Phillip COOK, Respondent.

No. WD 72019.

Missouri Court of Appeals,Western District.

Oct. 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Andrew J. Dickson, Kansas City, MO, for Appellant.

Thomas Stein, Kansas City, MO, for Respondent.

Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J., and CHARLES E. ATWELL, Sp. J.

JAMES EDWARD WELSH, Judge.

The Missouri State Treasurer as Custodian of the Second Injury Fund appeals the Labor and Industrial Relations Commission's decision that the Second Injury Fund is liable to Phillip Cook for permanent total disability benefits. The Second Injury Fund argues that the Commission erred in awarding Cook benefits because his claim against it was time barred, and therefore, the Commission lacked the authority to consider the claim. The Second Injury Fund also argues that there was not sufficient competent evidence to support the Commission's award. We affirm.

On November 24, 2003, Cook injured his right shoulder in the course and scope of his employment as a toolmaker with Saint-Gobain Calmar. Cook received medical treatment for this injury until his physician released him from care on October 7, 2005. Saint-Gobain Calmar accepted liability for Cook's injury and paid him $12,649.50 for medical expenses and $5,953.92 in temporary disability benefits.

In March 2006, Saint-Gobain Calmar agreed to pay Cook a lump sum of $12,076.30, based upon the approximate disability of fifteen percent to his right arm. Saint-Gobain Calmar and Cook memorialized their agreement on the Division's “Stipulation for Compromise Settlement” form, which they filed with the Division. An administrative law judge approved the stipulation on March 24, 2006.

On April 13, 2006, Cook filed a claim for compensation against only the Second Injury Fund. ¹ Cook alleged that his preexisting disabilities combined with his November 24, 2003 injury rendered him permanently and totally disabled. The Second Injury Fund filed an answer asserting that Cook's claim was time barred under section 287.430, RSMo 2000.

An administrative law judge (ALJ) held a hearing on this matter in February 2009. The ALJ found that Cook had not filed a claim for compensation against his employer; hence, under section 287.430, he had two years after his November 24, 2003 injury to file his claim for compensation against the Second Injury Fund. Because Cook did not file his claim for compensation against the Second Injury Fund until April 13, 2006, the ALJ concluded that Cook's claim was time barred and denied it.

Cook filed an application for review with the Commission. The Commission reversed the ALJ's decision and found that Cook's claim against the Second Injury Fund was timely. In reaching this conclusion, the Commission relied upon Grubbs v. Treasurer of Missouri as Custodian of the Second Injury Fund, 298 S.W.3d 907, 911 (Mo.App.2009), in which the Eastern District of this court held that a stipulation for compromise settlement constitutes a claim against an employer under section 287.430. Because Cook filed his claim against the Second Injury Fund within one year after filing the stipulation for compromise settlement, the Commission determined that his claim was not time barred. The Commission further found that the combination of Cook's preexisting disabilities and his primary work injury rendered him unable to compete in the open labor market. Therefore, the Commission ordered the Second Injury Fund to pay Cook permanent total disability benefits. The Second Injury Fund appeals.

On appeal from the Commission's award in a workers' compensation case, we may modify, reverse, remand for rehearing, or set aside the Commission's award only if we conclude that the Commission acted in excess of its powers, that the award was procured by fraud, that the facts found by the Commission do not support the award, or that there was not sufficient competent evidence in the record to warrant making the award. § 287.495.1, RSMo 2000. In the absence of fraud, the Commission's findings of fact are conclusive and binding. Id. We are not bound by the Commission's interpretation and application of the law, however, and we afford no deference to the Commission's interpretation of the law. Pierson v. Treasurer of State, 126 S.W.3d 386, 387 (Mo. banc 2004).

In its first two points on appeal, the Second Injury Fund contends that Cook's claim for compensation against it was time barred, and therefore, the Commission lacked the authority to consider the merits of his claim. Section 287.430 says that “[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.” Cook filed his claim against the Second Injury Fund over two years after his injury but within one year after he filed the stipulation for compromise settlement with his employer. The issue, then, is whether the stipulation for compromise settlement constituted a claim filed against Cook's employer pursuant to Chapter 287, the Workers' Compensation Law.

As we noted earlier, the Eastern District of this court recently addressed this issue in Grubbs, 298 S.W.3d at 911. In Grubbs, the Second Injury Fund had contended, as it does here, that the word “claim” in 287.430 refers only to a claim filed on the Division's “Form WC-21 Claim for Compensation.” Id. at 910-11. ² The court in Grubbs rejected the Second Injury Fund's contention after considering the plain and ordinary meaning of the words used in section 287.430. Id. at 911. The court cited the dictionary definition of the word “claim,” which is “ ‘[t]he aggregate of operative facts giving rise to a right enforceable by a court.’ ” Id. (citing Black's Law Dictionary 240 (7th ed.1999)). This definition does not restrict a “claim” to a filed lawsuit but, rather, says that the facts that support a potential lawsuit constitute a “claim,” presumably regardless of whether a formal lawsuit is filed. Thus, the court in Grubbs concluded that a dispute settled out-of-court in a stipulation for compromise settlement is a “claim” within the plain and ordinary meaning of section 287.430. Id.

The court in Grubbs further found that interpreting a “claim” to include disputes resolved informally through settlement agreements is consistent with the use of the word “claim” in section 287.390, RSMo, the statute governing compromise agreements. Id. Because section 287.390 provides that ALJs can approve only settlements between “parties to claims,” the court reasoned that, if a “claim” referred only to a Form WC-21 Claim for Compensation, then ALJs could approve only those settlements entered into between parties to a dispute for which a Form WC-21 had been filed. Id. As “settlements are encouraged under the law,” the court “decline[d] to find that a party must make a formal filing of a Form WC-21 before a settlement may be approved by an ALJ.” Id. Thus, the court in Grubbs held that a claim against the Second Injury Fund is timely if it is filed in the Division within one year of the stipulation for compromise settlement. Id.

The Second Injury Fund urges us not to rely upon Grubbs because it contends that one of the cases that Grubbs cited, O'Malley v. Mack International Motor Truck Corp., 225 Mo.App. 1, 31 S.W.2d 554 (1930), is not good law. In determining that, under the plain and ordinary meaning of the language of section 287.430, a settlement agreement constitutes a “claim,” Grubbs noted that the court in O'Malley had equated a settlement agreement with a claim for compensation. Grubbs, 298 S.W.3d at 911. In O'Malley, an employee injured in a work-related accident entered into a settlement agreement for compensation with his employer before he discovered other injuries from the same accident. 31 S.W.2d at 555. The injured employee subsequently filed a claim for compensation for those other injuries against his employer. Id. O'Malley held that the injured employee's filing of the settlement agreement equated to the filing of a claim for compensation that tolled the statute of limitations on the employee's subsequent claim against his employer. 31 S.W.2d at 557. After O'Malley, the legislature added a tolling provision to section 287.430, which says that “[t]he filing of any form, report, receipt, or agreement, other than a claim for compensation, shall not toll the running of the periods of limitation provided in this section.” ³ Because O'Malley's statement equating the filing of a settlement agreement to the filing of a claim for compensation for purposes of tolling the statute of limitations on an injured employee's claim against an employer is no longer valid, the Second Injury Fund urges us not to follow Grubbs.

Grubbs's citation of this statement from O'Malley was merely dictum, however. It was not essential to the court's interpretation of the language prescribing the statute of limitations for Second Injury Fund liability. Grubbs resolved the issue of what constitutes a “claim” in this context by ascertaining the plain and ordinary meaning of the word “claim” from the dictionary. 298 S.W.3d at 911. The dictionary definition of “claim” that Grubbs cited is broad enough to encompass both lawsuits and disputes settled informally. Grubbs's noting that O'Malley and another case, Williams By and Through Wilford v. Barnes Hospital, 736 S.W.2d 33, 38 (Mo. banc 1987), had similarly interpreted the word “claim” in other contexts was unnecessary to Grubbs's holding and was, therefore, dictum.

The Second Injury Fund also argues that, because the legislature said in section 287.430's tolling provision that only the filing of a “claim for compensation” and not the filing of an agreement is sufficient to toll the statute of limitations, the legislature intended that all references to a “claim” in the...