Lana Elrod, Appellant/Respondent v. Treasurer of Missouri as Custodian of Second Injury Fund, Respondent/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Lana Elrod, Appellant/Respondent v. Treasurer of Missouri as Custodian of Second Injury Fund, Respondent/Appellant. Case Number: WD61755 & WD61771 Handdown Date: 08/26/2003 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Joseph K. Houts Counsel for Respondent: Kimberley Cox Fournier Opinion Summary: The treasurer of Missouri, as custodian of the second injury fund, appeals the labor and industrial relations commission's award finding that Lana Elrod had a permanent partial disability and ordering the fund to pay benefits to her based upon its findings. On appeal, the fund claims that the commission erroneously found that the statute of limitations did not bar Elrod's claim and that various commission findings were not supported by the evidence. Elrod cross-appeals, claiming that the commission should have found that she had a permanent total disability. REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Division One holds: (1) The commission misinterpreted and misapplied the law in finding that the statute of limitations in section 287.430, RSMo 2000, did not bar Elrod's claim against the fund. Under the plain language of that section, Elrod had two years from the date of her injury or one year from the date she filed her primary claim against her employer to file a claim against the fund. Her first amended claim, in which she reasserted her claim against her employer and added a claim against the fund for the first time, was filed outside of this limitations period and, therefore, was barred. (2) Because this issue is dispositive, this court does not need to address the parties' other points on appeal. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Hardwick, P.J., and Spinden, J., concur.

Opinion: The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeals an award entered by the Labor and Industrial Relations Commission finding that Lana Elrod had a permanent partial disability and ordering the Second Injury Fund to pay benefits to her based upon its findings. On appeal, the Fund claims that the Commission erroneously found that the statute of limitations did not bar Ms. Elrod's claim and that various findings by the Commission were not supported by the evidence. Ms. Elrod cross-appeals, claiming that the Commission should have found that she had a permanent total disability. This court finds that Ms. Elrod's claim was barred by the statute of limitations. Accordingly, the Commission's award is reversed, and the cause is remanded to the Commission with instructions to dismiss the claim. I. Factual and Procedural Background On April 8, 1995, while working as a cook in a restaurant owned by the 36th Street Food and Drink Company in St. Joseph, Ms. Elrod slipped on some water on the floor and injured her left knee. On May 30, 1995, Ms. Elrod filed a claim for compensation with the Division of Workers' Compensation. Ms. Elrod did not file a claim against the Second Injury Fund at that time. After conservative treatment on Ms. Elrod's left knee proved ineffective, an MRI was conducted, which revealed a tear in the medial meniscus. Arthroscopic surgery was performed on Ms. Elrod's knee on November 6, 1995. Following surgery, Ms. Elrod continued to have problems with her left knee and did not return to work. In May 1996, Ms. Elrod's left knee locked, causing her to fall in a parking lot and further injure her left knee. A second MRI, performed after that fall, revealed an extension of the tear in the medial meniscus of her left knee. On November 14, 1997, a second arthroscopic surgery was performed on Ms. Elrod's knee. Ms. Elrod has been unemployed since that operation. Ms. Elrod's former employer, 36th Street Food and Drink Company, continued to provide treatment for her knee until at least April 23, 1998. On November 3, 1998, Ms. Elrod filed her first amended claim with the Division of Workers' Compensation, in which she reasserted her claim against her employer and asserted a claim against the Fund for the first time. In her claim against the Fund, Ms. Elrod alleged that she had pre-existing injuries to her right ankle, right shin, and wrists, which combined with her current injury to her left knee to render her permanently and totally disabled. Ms. Elrod subsequently amended her claim to allege additional pre-existing disabilities resulting from her morbid obesity and diabetes.

On May 10, 2001, an administrative law judge (ALJ) conducted a hearing on Ms. Elrod's claim against the Fund. (FN1) The ALJ found that Ms. Elrod's claim against the Fund was not barred by the statute of limitations contained in section 287.430. (FN2) The ALJ also found that: (1) Ms. Elrod's pre-existing injury to her right ankle had resulted in a 12.5% permanent partial disability to the body as a whole; (2) the injury to her left knee had resulted in a 20% permanent partial disability at the level of the knee; (3) the simple sum of these two permanent partial disabilities warranted 159.5 weeks of compensation; (4) the condition of her right ankle, left knee, morbid obesity, and diabetes combined in such a manner that her permanent partial disability was significantly higher than the sum of the injuries to her ankle and knee; (5) the combination of these conditions resulted in Ms. Elrod being 81.875% permanently partially disabled to the body as a whole or 327.5 weeks; and (6) the difference between her actual disability and the sum of her ankle and knee injuries was 168 weeks worth of compensation. Based upon these findings, the ALJ ordered the Fund to pay Ms. Elrod 168 weeks worth of compensation for a total of $17,359.44. In addition, the ALJ ordered the Fund to pay Ms. Elrod temporary total disability benefits related to another job she held at the time of her knee injury totaling $5,967.50. Both Ms. Elrod and the Fund appealed the ALJ's decision to the Commission. Subsequently, the Commission entered its final award, finding that the statute of limitations did not bar Ms. Elrod's claim against the Fund, supplementing the ALJ's decision on that issue, and adopting the remainder of the ALJ's decision and award as the Commission's. Both parties appealed. II. Standard of Review On appeal, this court will not disturb the Commission's award unless the Commission acted without or beyond its power, the award was procured by fraud, the facts found do not support the award, or the award is not supported by sufficient competent evidence in the record. Section 287.495.1. To determine "whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it," this court uses a two-step process: In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence.

Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo. App. 1995). In reviewing the Commission's award, this court cannot substitute its judgment regarding questions of fact for that of the Commission. Id. This court, however, is not bound by those findings of the Commission that are clearly the interpretation or application of law. Id. Thus, findings of the Commission interpreting or applying the law are not binding on this Court, and our review of such findings is de novo. See id. III. The Fund's Appeal Claim against the Fund is Barred by Statute of Limitations The Fund's first point on appeal is that the Commission erred in awarding Ms. Elrod benefits from the Fund because her claim was barred by the statute of limitations. If the statute of limitations barred Ms. Elrod's claim, the Commission did not have jurisdiction over the matter. Oberreiter v. Fullbright Trucking, 24 S.W.3d 727, 729 (Mo. App. 2000). "When a court lacks subject matter jurisdiction, it cannot take any other action except its inherent power to dismiss." Id. "The statute of limitations covering workers' compensation cases is set out in section 287.430." Otte v. Langley's Lawn Care, Inc., 66 S.W.3d 64, 73 (Mo. App. 2001). That section provides: 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, except that if the report of the injury or 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. . . . 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 . . . . The statute of limitations contained in this section is one of extinction and not of repose. Section 287.430 (emphasis added). On appeal, the Fund contends that the Commission erroneously interpreted and applied section 287.430 in holding that the statute of limitations did not bar Ms. Elrod's claim against the Fund. It argues that the statute of limitations barred her claim because she "filed her claim more than two years after the date of injury and more than one year after the claim against the employer had been filed." None of the facts relevant to determining whether the statute of limitations had run were disputed by the parties, and the Commission's decision was rendered solely upon its interpretation of section 287.430. As noted previously, this court reviews the Commission's interpretation of the law de novo. See Davis, 903 S.W.2d at 571. "'The fundamental rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if

possible, and to consider the words used in their plain and ordinary meaning.'" Clanton v. Teledyne Neosho, 960 S.W.2d 532, 534 (Mo. App. 1998) (citation omitted). "The provisions of a legislative act are not read in isolation but construed together and read in harmony with the entire act." State, Dep't of Soc. Servs., Div. of Aging v. Brookside Nursing Ctr., Inc., 50 S.W.3d 273, 276 (Mo. banc 2001). "The issue is not whether a particular word in a statute, considered in isolation, is ambiguous, but whether the statute itself is ambiguous." J.B. Vending Co. v. Dir. of Revenue, 54 S.W.3d 183, 187 (Mo. banc 2001). Moreover, "the plain and unambiguous language of a statute cannot be made ambiguous by administrative interpretation and thereby given a meaning which is different from that expressed in a statute's clear and unambiguous language." Wolff Shoe Co. v. Dir. of