Thomas Brookes v. Stephens Floor

for defense purposes. I had no actual knowledge of this case as a partner with Evans and Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case or in Injury No. 03-109225 until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge denying benefits.

William F. Ringer, Chairman

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge concluded that the three-year claim filing period of $\S 287.430$ RSMo does not apply in this instant case. The administrative law judge concludes that employer's failure to include all of the statutorily required information in its report of injury did not trigger the three-year filing period. I disagree.

Workers' compensation law is entirely a creature of statute, and when interpreting the law, we must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible. Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund, 126 S.W.3d 386, 390 (Mo. 2004). A review of the relevant statutes makes clear the administrative law judge erred.

Section 287.430 RSMo provides:

[N]o 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 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. (Emphasis added).

As I understand employer's argument, employer urges us to read the statute as triggering the three-year statute of limitations only if employer fails to deliver some document purporting to be a report of injury. That is, employer urges us to accept that, although $\S 287.380$ contains many requirements, the legislature only intended to refer to the requirement of physical delivery when it included the phrase "as required by section 287.380...," in § 287.430. I reject employer's invitation to read the phrase so narrowly.

So, what does $\S 287.380$ require? Section 287.380.1 RSMo provides:

Every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within thirty days after knowledge of the 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, and every employer or insurer shall also furnish the division with such supplemental reports in regard thereto as the division shall require. All reports submitted under this subsection shall include the name, address, date of birth and

wages of the deceased or injured employee, the time and cause of the accident, the nature and extent of the injury, the name and address of the employee's and the employer's or insurer's attorney of record, if any, the medical cost incurred in treating the injured employee, the amount of lost work time of the employee as a result of the injury and such other information as the director may reasonably require in order to maintain in the division, accurate and complete data on the impact of work-related injuries on the workers' compensation system. (Emphasis added).

"The use of the word 'shall' in a statute is generally interpreted as mandatory." Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 484 (Mo. App. 2001). Pursuant to the plain language of $\S 287.380$, an employer's inclusion of employee wage information in the report of injury is mandatory. Stated another way, inclusion of the employee wage information is a requirement of $\S 287.380$.

This is not a case where employer attempted in good faith to report employee's wage but a typographical error resulted in inaccurate information being transmitted to the Division (e.g. transposition of digits). Rather, in the instant case, employer reported employee earned a wage of $\ 10 per week and employee worked 0 hours per week. These convenient and wholly inaccurate understatements of employee's wage and hour information reveal a complete lack of effort on employer's part to provide accurate information to the Division as required by § 287.380 .

Employer's failure to even attempt to provide accurate information in the Report of Injury is tantamount to failing to provide employee's wage at all. Therefore, the report of injury was not filed "as required by section 287.380 " and the three-year claim-filing period applies. I conclude that the statute of limitation defense fails. Employee's claim against employer and American Manufacturer's Mutual Insurance Company is timely.

I would reverse the award of the administrative law judge denying compensation. I would issue a temporary award of additional medical treatment. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Thomas Brookes

Injury No.: 00-111966

Dependents: N/A

Employer: Stephens Floor

Additional Party:

Insurer: American Manufacturers Mutual

Hearing Date:May 10, 2005

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Second Injury FundRelations of Missouri

Jefferson City, Missouri

Checked by: KOB

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: October 6, 2000.
2. State location where accident occurred or occupational disease was contracted: St. Louis County.
3. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
4. Did employer receive proper notice? Yes.
5. Did accident or occupational disease arise out of and in the course of the employment? Yes.
6. Was claim for compensation filed within time required by Law? No.
7. Was employer insured by above insurer? Yes.
8. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was carrying a heavy roll of material when his co-worker dropped one end, causing Claimant's upper body to be jerked backwards.
9. Did accident or occupational disease cause death? No.
10. Part(s) of body injured by accident or occupational disease: Right upper extremity.
11. Nature and extent of any permanent disability: N/A
12. Compensation paid to-date for temporary disability: $\ 0.
13. Value necessary medical aid paid to date by employer/insurer? $\ 3,318.30

Employee: Thomas Brookes Injury No.: 00-111966

1. Value necessary medical aid not furnished by employer/insurer? $\ 0
2. Employee's average weekly wages: Maximum.
3. Weekly compensation rate: $\$ 599.96 / \ 314.26
4. Method wages computation: By agreement.

21.Amount of compensation payable: None.

1. Second Injury Fund liability: No

TOTAL: $\quad-\ 0.00-

1. Future requirements awarded: None.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of -0 - of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John J. Larsen, Jr.

Employee: Thomas Brookes

Injury No.: 00-111966

Dependents: N/A

Employer: Stephens Floor

Additional Party:

Insurer: American Manufacturers Mutual

The matter of Thomas Brookes ("Claimant") proceeded to hearing to determine which, if any, insurance company is responsible to provide medical benefits to Claimant for a right shoulder injury. Two separate claims alleging different theories were tried simultaneously. Attorney John Larsen represented Claimant. Attorney Juan Arias represented Stephens Flooring Company, Inc. ("Employer") in Injury Number 00-111966 (date of injury October 6, 2000), and Insurer, American Manufacturers. Attorney Kim Parks represented Employer for Injury Number 03-109225[1] (date of injury June 30, 2003) and Insurer Amerisure. The Second Injury Fund is a party to the claims, but because Claimant is seeking a temporary award, the Second Injury Fund, by agreement with Claimant, chose not to participate. Mr. Larsen is not seeking a fee on the benefits sought pursuant to this award.

With respect to Injury Number 00-111966, the parties agreed that on October 6, 2000, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant's right shoulder. Employment, venue, and notice are not at issue. At the time of his accident, Claimant earned an average weekly wage that qualified him for the maximum rates of compensation of $\ 599.96 for total disability benefits and $\ 314.26 for par