Steven Holubeck v. Dobbs Tire & Auto Centers, Inc.

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Undetermined
3. Was there an accident or incident of occupational disease under the Law? Undetermined
4. Date of accident or onset of occupational disease: August 27, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Undetermined
7. Did employer receive proper notice? Undetermined
8. Did accident or occupational disease arise out of and in the course of the employment? Undetermined
9. Was claim for compensation filed within time required by Law? No
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Lifting a tire.
12. Did accident or occupational disease cause death? No Date of death? Not Applicable
13. Part(s) of body injured by accident or occupational disease: Undetermined
14. Nature and extent of any permanent disability: Undetermined
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Employee: Steven Holubeck

Injury No.: 99-183538

1. Value necessary medical aid not furnished by employer/insurer? $\ 0
2. Employee's average weekly wages: Maximum rate
3. Weekly compensation rate: $\$ 578.48 / \ 303.01
4. Method wages computation: Stipulation

1. Amount of compensation payable:

The issues in dispute are: Notice; occurrence of a compensable hernia pursuant to $\S 287.195$; accident; arising out of and in the course of employment; past medical care; future medical care; past temporary total disability (TTD) benefits; nature and extent of disability; if claim was filed within the statute of limitations.

Only the facts pertinent to the rulings in this award are included.

1. The Claim filed in this case has an injury date of September 1, 1999. However, at hearing, the parties stipulated to August 27, 1999 as the date of the alleged injury. Further, Claimant testified that the injury occurred on August 27 and that he saw Dr. Pettinger on August 28, 1999.
2. Claim for compensation was filed on December 26, 2002.
3. Claimant had a prior work related hernia injury in 1992.
4. Claimant testified this injury happened in substantially the same manner as the 1992 injury.
5. Claimant, by his own testimony, filed for and received Workers' Compensation benefits for the 1992 injury.
6. On August 28, 1999 Claimant told Dr. Pettinger that he re-injured the hernia "throwing" a tire.
7. Just after the injury, Claimant spoke with co-workers regarding Workers' Compensation.
8. Claimant was aware that the injury of August 27, 2006 was a work injury, but chose not to file a claim within the statute of limitations.
9. The parties stipulated that no benefits had been paid for the August 27, 1999 alleged injury.

Section 287.430 states, in pertinent part:

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 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 statute of limitations contained in this section is one of extinction and not of repose.

The parties stipulated that no benefits have been paid. Therefore, the longest period of time available for Claimant to have filed his claim would be three years from the date of injury. He did not file his claim until December 26, 2002, three years and 4 months after the alleged injury. As a result, it is not necessary to determine whether or not Claimant proved he is entitled to the longer three-year statute for Employer's failure to file an injury report, as that time period would have also elapsed.

Claimant, in a motion and trial brief, has asserted that the claim was timely filed. In support of this proposition, he cites Welborn v. Southern Equipment Company, 395 S.W.2d 119 (Mo.Sup.Ct. En Banc, 1965) and Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413 (Mo.App. 1988). Neither case provides support for that assertion. Welborn was decided on a contract theory, and well before the current statute of limitations was enacted. The Court held that a voluntary payment by employer revived the 1-year statute, which existed at that time. In Claimant's case, no such payments were made, and $\S 287.430$ specifically states that it is a statute of extinction and not repose.

Sellers is not relevant because the injury was a latent occupational disease, which was not obvious to the claimant in that case, or even the initial treating physicians. In this case, despite Claimant's obviously well-coached answer under direct examination that he did not know he was dealing with work injuries until September 2002 when talking to doctor in Springfield, the evidence is overwhelming that claimant did know his injury was a work injury. He testified that this injury occurred just like the hernia in 1992. He knew the 1992 injury was a work injury because he filed a claim. He also testified that he had discussions with co-workers about Workers' Compensation at the time of the injury. He also testified that a Dobbs store would get an annual bonus if there were no reported work injuries in a year, and that is why he decided not to pursue the case as a Workers' Compensation claim.

Claimant made a conscious decision not to file a Workers' Compensation claim. After his treatment for the hernia went awry, he apparently changed his mind. Unfortunately, $\S 287.430$ is clear regarding the extinction of a known claim.

Claimant's claim for compensation is barred by the statute of limitations. The claim for compensation is denied.

A true copy: Attest:

/s/ PATRICIA "PAT" SECREST

Patricia "Pat" Secrest

Director

Division of Workers' Compensation