Upon careful review of the entire record, the Commission determines and concludes that the evidence supports a finding that employee was sent adequate notice of employer's bankruptcy and need for filing a proof of claim; however, failed to file a proof of claim with the bankruptcy court as required under section 287.865.5 RSMo.
Section 287.865.5 RSMo states:
Upon creation of the insolvency fund pursuant to the provisions of section 287.867, the corporation is obligated for payment of compensation under this chapter to insolvent members' employees resulting from incidents and injuries to the extent of covered claims existing prior to the issuance of an order of liquidation against the member employer with a finding of insolvency which has been entered by a court of competent jurisdiction in the member employer's state of domicile or of this state under the provisions of sections 375.950 to 375.990 , RSMo, in which the order of liquidation has not been stayed or been the subject of a writ of supersedeas or other comparable order; or prior to the date of determination by the board of directors that the member employer has fully expended all surety bonds, insurance or reinsurance, and all other available assets and is not able to pay compensation benefits at that time. All incidents giving rise to claims for compensation under this chapter must occur during the year in which such insolvent member is a member of the guaranty fund and was assessable pursuant to the plan of operation, except as provided for certain claims existing prior to August 28, 1992, pursuant to the provisions of subsection 7 of this section, and the employee must make timely claim for such payments according to procedures set forth by a court of competent jurisdiction over the delinquency or bankruptcy proceedings of the insolvent member.
Under section 287.865.5 RSMo, employee must file a proof of claim with the bankruptcy court in order for employee to recover compensation from the Guarantee Corporation. The administrative law judge found that the requirement to file a proof of claim was waived because employee did not receive adequate notice regarding the necessity of filing the claim. The administrative law judge points to In re: Wire Rope Corporation of America, Inc., 300 B.R. 1 (BANKR. W.D. Mo. 2003), to support his finding. However, the facts in Wire Rope, differ notably from the facts in this case. In Wire Rope, the employer failed to apprise injured workers of its bankruptcy by failing to list the injured workers on its schedules as creditors. The court in Wire Rope found that because employer did not provide adequate notice of the bankruptcy proceeding or the need to file a proof of claim, that the injured workers were not precluded from receiving benefits. Id at 10. The court required that the Guarantee Corporation provide proper notice to the injured workers whose claims had been denied and that the Guarantee Corporation file proofs of claim on their behalf. Id. The key difference in the Wire Rope case is that the injured workers were never listed in the employer's schedules as creditors. The injured workers were absent from the list of creditors and undoubtedly were not provided notice of the need to file their claims. On the contrary, in the case at hand, employee was listed on employer's schedule as one of its creditors and proper notice was sent to employee.
The Guarantee Corporation presented evidence that employee was sent notice of employer's bankruptcy as well as the deadline for filing proof of claim; and the administrative law judge found that employee was sent timely notice. Employee never alleged that he was not sent notice or that the notice was sent to the wrong address; he simply testified that he did not recall receiving the notice. Therefore, the administrative law judge's conclusion that the notice never reached employee is not supported. The administrative law judge's conclusion that employee never received the notice is nothing more than mere conjecture. There is nothing in the record that indicates that the notice was not sent to the correct address for employee. No evidence was presented that employee had moved or was no longer living at the address at the time the notice was sent in June of 2001. Consequently, we find that the bankruptcy court sent adequate notice of employer's bankruptcy as well as the deadline for filing a proof of claim to employee.
Furthermore, employee had actual notice of employer's bankruptcy. Employee testified that he first learned of the bankruptcy in December of 2000. By employee's own admission, he had knowledge of the bankruptcy and did nothing for the duration of its proceeding. At best, employee should have filed a proof of claim when the Guarantee
Corporation filed its answer in May of 2004 alleging its affirmative defense of the employee's failure to timely file a proof of claim. The bankruptcy case did not come to a close until 2007, some six years after employee was first sent notice of employer's bankruptcy and the need for filing a proof of claim. However, at no point did employee file a proof of claim as required under section 287.865.5 RSMo. Employee's failure to file a timely claim in the bankruptcy court precludes employee from recovering compensation from the Guarantee Corporation.