Weniger v. Pulitzer Pub. Co., 63131

• Decision Date: 27 July 1993
• Docket Number: No. 63131,63131
• Citation: 860 S.W.2d 359
• Parties: Shirley D. WENIGER, Appellant, v. PULITZER PUBLISHING COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 359

860 S.W.2d 359

Shirley D. WENIGER, Appellant, v. PULITZER PUBLISHING COMPANY, Respondent.

No. 63131.

Missouri Court of Appeals,

Eastern District,

Division One.

July 27, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 8, 1993.

Richard L. Hughes, Thomas J. Gregory, Mogab & Hughes, St. Louis, for appellant.

Davis S. Ware, Evans & Dixon, St. Louis, for respondent.

AHRENS, Presiding Judge.

In this workers' compensation case, employee, Shirley Weniger, appeals from the decision of the Labor and Industrial Relations Commission denying compensation. We affirm.

Employee worked for Pulitzer Publishing Company (employer), for twenty-three years as an advertising sales representative. In September, 1987, employee was diagnosed as having carpal tunnel syndrome. She had surgery on her left hand on September 28, 1987 and on her right hand on October 19, 1987. Employee filed a claim for workers' compensation on August 30, 1990. Following a hearing, the Administrative Law Judge (ALJ) entered an award denying compensation, finding the proceedings barred by the statute of limitations, § 287.430 RSMo 1986. On review, the Labor and Industrial Relations Commission (the Commission) affirmed the ALJ's denial of compensation.

In the first of two points, employee asserts the Commission erred as a matter of law in finding her claim barred by the statute of limitations because "substantial and competent evidence ... showed that the employer had notice of the claimant's injury, yet failed to timely file a report of injury, thereby giving the claimant three years from the date of injury or last treatment to file her claim instead of two years under the terms of section 287.430 RSMo." In her second point, employee asserts that awards of the Commission which are "clearly the interpretation or application of the law," such as the statute of limitations question here, as opposed to determination of facts, are not binding on the court of appeals and are subject to review and correction. Point two claims no error, but addresses our standard of review. We consider it in tandem with point one.

On appeal, we are bound to affirm the Commission's award "if it is supported by competent and substantial evidence on the whole record." Mann v. Supreme Express, 851 S.W.2d 690, 691 (Mo.App.1993) (quoting Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 415 (Mo.App.1988)). "The inquiry on questions of fact decided by the Commission is limited to whether, upon the whole record and considering the evidence in the light most favorable to the Commission's findings, the Commission could have reasonably made such findings and reached the result it did." Id. "This court may not substitute its judgment on issues of fact for the judgment of the Commission." Id. "Only when the award is not supported by substantial evidence or is clearly contrary to the overwhelming weight of the evidence is it disturbed." Id.

A workers' compensation claim must be filed within two years after the date of injury. § 287.430 RSMo 1986. The employer is required to notify the division "within ten days after knowledge of an accident resulting in personal injury to any employee" and file a report of injury within one month thereafter. § 287.380 RSMo 1986. If the employer fails to file the report of injury as required by § 287.380, the time to file a claim for compensation is extended to three years after the date of injury. § 287.430 RSMo. Carpal tunnel syndrome is a known occupational disease. Elgersma v. DePaul Health Center, 829 S.W.2d 35, 36 (Mo.App.1992). The statute of limitations in occupational disease cases begins to run when it "becomes reasonably discoverable and apparent that a compensable injury has been sustained...." § 287.063.3 RSMo 1986.

Employee claims that the statute of limitations was extended from two to three years pursuant to § 287.430 due to employer's alleged failure to timely file a report of injury as required by § 287.380. Employer did not file a report of injury until September 14, 1990, or fifteen days after employee filed her claim for compensation. The Commission rejected employee's claim, finding it "punitive ... that an employer without notice is expected to file a Report of Injury." The Commission further found the "statutory scheme clearly requires knowledge of the accident or occupational disease before the Report of Injury requirement keys in."

Employee asserts the Commission "confused and misinterpreted" the issues of notice and statute of limitations. We disagree. Employee notes we recently held the notice requirement of § 287.420 does not apply to cases of occupational disease. Elgersma, 829 S.W.2d at 37. This, however, does not mean an employee is no longer required to provide any notice to his or her employer. We further observed in Elgersma, "[i]t seems clear an employer is entitled to a notice but there are no existing guidelines to define the nature or timeliness for notice." Id. The Commission still must look to whether an employer had any knowledge of an injury or accident. See § 287.380 RSMo. Accordingly, the issue of when employer obtained knowledge of the occupational disease for purposes of the report of injury requirement of § 287.380 and the statute of limitations extension under § 287.430 is not affected by our holding in Elgersma.

Employee contends the application of the statute of limitations to the facts of this case is a "purely legal question." Therefore, employee claims the Commission's decision is not binding on this court, citing Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292 (Mo.1965) and West v. Posten Const. Co., 804 S.W.2d 743 (Mo. banc 1991). These decisions are inapposite. The question in Merriman was whether the employee's injury constituted an "accident" within the meaning of the statute. Merriman, 392 S.W.2d at 297. West involved an issue as to whether the claimant was an employee or independent contractor. West, 804 S.W.2d at 743-44.

Here, the issue...