Mary Compton v. Briggs & Stratton Corporation

Enployee: Mary Compton, deceased

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received at a clinic on employer's premises on June 21 and July 12, 2010, for back pain. The clinic is open to employer's employees and their dependents; from 2004 to 2010, employee visited the clinic for a variety of medical conditions including bronchitis, high blood pressure, and nicotine addiction.

We write to make clear that even if employee's treatment in June or July 2010 involved a payment by employer that could be considered "the last payment" under Chapter 287 (a proposition which we by no means accept), we believe employee's claim was extinguished when she failed to file her claim for compensation on or before May 11, 2009. To rule otherwise, we would have to ignore the language of § 287.430 making clear that "[t]he statute of limitations contained in this section is one of extinction and not of repose."

Employee knew employer had decided to stop paying workers' compensation benefits as of May 11, 2007, on the basis of employer's position that her claimed April 2007 injury was not work-related. Employee's attempt to assert a claim for workers' compensation benefits more than two years after employer stopped paying them is nothing more than an attempt to revive an already extinguished claim. The Missouri courts have made clear that this is not permitted under a statute of extinction such as § 287.430. See, e.g., *Minor v. Apcoa, Inc.*, 31 S.W.3d 105, 109 (Mo. App. 2000); *Newbound v. Kingsford Charcoal Co.*, 786 S.W.2d 226, 228 (Mo. App. 1990).

For the foregoing reasons, and because we otherwise agree with the findings, analysis, and conclusions of the administrative law judge, we are persuaded that we have no jurisdiction over employee's claim for compensation, because it was not timely filed for purposes of § 287.430. Accordingly, employee's claim for compensation is denied.

**Conclusion**

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Maureen Tilley, issued December 21, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 1st day of November 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Mary Compton

Injury No. 07-036344

Dependents: N/A

Employer: Briggs \& Stratton Corp.

Additional Party: Second Injury Fund

Insurer: Self Insured

Hearing Date: October 15, 2012

Checked by: MT/rmm

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.
4. Date of accident or onset of occupational disease? April 18, 2007.
5. State location where accident occurred or occupational disease contracted: Butler County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? N/A because denied based on Statue of limitations.
9. Was claim for compensation filed within time required by law? No.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee sustained an accident to her lumbar spine when she was pulling on an oil tube.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Lumbar Spine.
4. Nature and extent of any permanent disability: N/A because denied based on Statue of limitations.
5. Compensation paid to-date for temporary total disability: None.
6. Value necessary medical aid paid to-date by employer-insurer: $\ 1,621.74.
7. Value necessary medical aid not furnished by employer-insurer: N/A.
8. Employee's average weekly wage: $\ 480.26.
9. Weekly compensation rate: $\ 320.19.
10. Method wages computation: By agreement.
11. Amount of compensation payable: None.
12. Second Injury Fund liability: None.
13. Future requirements awarded: None.

On October 15, 2012, the employee, Mary Compton, appeared in person and with her attorney, Michael Moroni, for a hearing for a final award. The employer was represented at the hearing by its attorney, Mark Kornblum. The Second Injury Fund was represented by attorney, Jonathan Lintner. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. The Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was self-insured. The third party administrator is Enterprise Comp, Inc.
2. That on April 18, 2007, the Employee was an Employee of Briggs \& Stratton Corporation in Butler County, Missouri and was working under the Missouri Workers' Compensation Act.
3. That on April 18, 2007, the Employee sustained an accident injury or occupational disease arising out of and in the course of her employment.
4. That the Employer had notice of the Employee's accident and injury.
5. That the average weekly wage was $\ 480.26 and the permanent partial disability rate was $\ 320.19.
6. Medical aid has been furnished by the Employer in the amount of $\ 1,621.74.
7. No temporary total disability benefits have been paid.
8. That the Claim for Compensation was filed with the Division of Workers' Compensation on January 27, 2012.
9. That the last payment for medical treatment, on account of the injury, was made by the Employer on May 11, 2007.
10. That if it is determined that there is Second Injury Fund liability, a 10\% multiplicity/load factor will be applied.

1. Whether the Claim for Compensation is barred by the Statute of Limitations.

1. Whether the Employee's injury was medically and causally related to the accident or occupational disease.
2. Whether the employee has sustained any permanent partial disability as a result of the April 18, 2007 injury.

The following exhibits were offered and admitted into evidence:

A. Report of Dr. Dwight Woiteshek.

B. Records from the Missouri Division of Workers' Compensation.

C. Medical records from Dr. Annamaria Guidos.

D. Medical records from Brain \& NeuroSpine Clinic of Missouri.

E. Medical records from Poplar Bluff Medical Partners.

F. Medical records from Ozark Physical Therapy.

G. Medical records from Tinsley Medical Clinic.

H. Medical records from Missouri Delta Medical Center.

I. Report from Rushin Chiropractic Center.

J. Medical records from Briggs \& Stratton Health Center.

K. Medical records from Orthopaedic Associates.

L. Medical records from Drs. Tolentino and Tinsley.

M. Medical records from The Surgery Center.

N. Medical records from Dr. Rickey Lents.

1. Correspondence from Donna Biri to Mary Compton, dated May 21, 2007.
2. Deposition transcript of Dr. Sandra Tate.

The Second Injury Fund did not offer any exhibits.

On April 18, 2007, the Employee, Mary Compton, was pulling on large tubs which contained oil tubes. In the process, she sustained an initial injury to the lumbar spine. The Employer/Insurer provided medical treatment to the Employee. She was treated at the clinic, which is adjacent to Briggs \& Stratton Corporation's facility. On May 21, 2007, the Employer sent a letter to the Employee, advising that the medical condition in question was not causally related to the April 18, 2007 injury, and that no additional medical treatment would be provided under workers' compensation.

The Employee testified that she received no additional medical treatment following that time and her employment with Briggs \& Stratton Corporation ended on September 26, 2008. In 2010, Ms. Compton returned to the clinic, requesting medical treatment for her lumbar spine. She did not inform anyone that this treatment was related to her 2007 work injury. The medical bills were paid through her husband's group health insurance. The Employee testified that she made no request that Briggs \& Stratton provide her additional treatment under workers' compensation.

The Employee was evaluated by Dr. Dwight Woiteshek on April 17, 2012. It was Dr. Woiteshek's opinion that the employee sustained a permanent partial disability of 20 % of the body as a whole, at the lumbar spine, due to the diagnosis of a right paracentral protrusion of the L2 disk with mild right foraminal encroachment. Employee complained of ongoing pain and limitations in her lumbar spine.

Dr. Sandra Tate testified on behalf of the Employer/Insurer. It was Dr. Tate's testimony that Employee retains no permanent partial disability as a result of the April 18, 2007 injury. Dr. Tate testified further that Ms. Compton's lumbar spine condition is degenerative in nature and unrelated to the April 19, 2007 work injury.

Other than the Employee, the only live witness was Ms. Donna Biri. Ms. Biri was employed by Briggs \& Stratton Corporation from 1989 until 2012. She was a human resources assistant for Briggs \& Stratton. Her duties included the day to day handling of workers' compensation matters, as well as FMLA.

Ms. Bi