Mohammed Parviz v. St. Luke's Hospital of Kansas City, MO

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-023615

Employee: Mohammed Parviz

Employer: St. Luke's Hospital of Kansas City, MO

Insurer: Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 6, 2017, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lawrence G. Rebman, issued January 6, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 10^{\text {th }}$ day of May 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

V A C A N T

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Mohammad Parviz

Injury No: 11-023615

Dependents: N/A

Employer: St. Luke's Hospital of Kansas City, MO

Insurer: Self-Insured c/o Thomas McGee, Third Party Administrator

Additional Party: None

Hearing Date: December 15, 2016

Checked by: LGR/pd

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 or occupational disease under the law? Yes
4. Date of accident or onset of occupational disease: March 18, 2011
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri
6. Was the above Employee in the employ of the above Employer at the time of the alleged accident or occupational disease? Yes
7. Did the Employer receive proper notice? Yes
8. Did the accident or occupational disease arise out of and in the course of employment? N/A
9. Was Claim for Compensation filed within time required by law? N.
10. Was Employer insured by above insurer? Yes
11. Was the accident alleged the prevailing cause of the injuries and need for medical care? N/A
12. Describe work Employee was doing and how accident occurred or occupational disease was contracted: On March 18, 2011 when he felt a pop in his right shoulder while he was trying to roll an older patient.
13. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Mohammad Parviz

1. Part(s) of body injured by accident or occupational disease: Right shoulder
2. Compensation paid to date for temporary disability: $\ 0
3. Value of necessary medical aid paid to date by Employer/Insurer? $\ 0
4. Value of necessary medical aid not furnished by Employer/Insurer? Undetermined
5. Nature and extent of permanent partial disability: N/A
6. Amount of compensation paid for permanent partial disability: None
7. Employee's average weekly wage: $\ 1,158.80
8. Weekly compensation rate: $\$ 772.57 / \ 418.58
9. Method of wage computation: By agreement
10. Second Injury Fund liability: N/A

Employee: Mohammad Parviz

Injury No: 11-023615

Dependents: N/A

Employer: St. Luke's Hospital of Kansas City, MO

Insurer: Self-Insured c/o Thomas McGee, Third Party Administrator

Additional Party: None

Hearing Date: December 15, 2016

Checked by: LGR/pd

This case comes on for hearing before Administrative Law Judge Lawrence Rebman on December 15, 2016 in Kansas City, Missouri. The Employee, Mohammad Parviz, was present and represented himself. The Employer appeared by its counsel, Mr. Matt Stretz.

Prior to the hearing, the parties stipulated to the following issues:

1. At all times relevant herein, St. Luke's Hospital was an employer operating subject to the Missouri Workers' Compensation Law and was self;
2. Mr. Parviz was St. Luke's Hospital's employee working subject to the Workers' Compensation Law in Kansas City, Jackson County, Missouri;
3. On March 18, 2011, Mr. Parviz alleged an accident and injury arising out of and in the course and scope of his employment with St. Luke's Hospital;
4. Mr. Parviz timely notified St. Luke's Hospital of his March 18, 2011 accident;
5. St. Luke's Hospital has not paid temporary total disability benefit.
6. Employee's average weekly wage: $\ 1,158.80
7. Weekly compensation rate: $\$ 772.57 / \ 418.58.

Claimant testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection.

Claimant's Exhibit A -- Brief Explanation by Claimant dated 12/15/16

Claimant's Exhibit B -- St. Luke's Hospital Form dated 4/22/11

Claimant's Exhibit C -- Response Letter to Claimant's Exhibit B

Claimant's Exhibit D -- St. Luke's Hospital Form dated 3/30/11

Claimant's Exhibit E -- Response Letter to Claimant's Exhibit D

Employer/Insurer offered the following exhibits, all of which were admitted into evidence without objection.

Employer/Insurer Exhibit No. 1 -- Report of Injury 3/17/11

Employer/Insurer Exhibit No. 2 -- Report of Injury 3/30/11

Employer/Insurer Exhibit No. 3 -- Answer to Claim, Injury \# 11-028704

Employer/Insurer Exhibit No. 4 - Answer to Claim, Injury \# 11-023615

Employer/Insurer Exhibit No. 5 - Claim for Compensation, Injury \# 11-028704

Employer/Insurer Exhibit No. 6 -- Claim for Compensation, Injury \# 11-023615

The issues to be resolved by this hearing are as follows:

1. Whether the statute of limitations has run based on the two (2) year statute of limitations thus precluding the claimant from pursuing his claim further under the workers' compensation laws of the State of Missouri;
2. The obligation of the employer for medical care; and
3. Nature and extent of disability.

Claimant alleges injury on March 18, 2011 when he felt a pop in his right shoulder while he was trying to move a patient. On March 18, 2011, the claimant presented to St. Luke's Employee Health complaining of pain in the right shoulder. Claimant was referred to Dr. Maeda and the compensability of the incident was disputed. No authorized treatment was nor medical expenses paid under the employers workers compensation benefits. The employee was returned to work with no restriction. No temporary total disability benefits were paid.

The Report of Injury was timely filed by the Employer on April 1, 2011.

The claimant filed a formal claim for compensation which was filed on April 24, 2014.

An Answer to the Claim for Compensation was timely filed on May 6, 2014 and included an allegation of Affirmative Defense due to violation of the Statute of Limitations.

The Employee applied for and was granted Long Term Disability (LTD) benefits from July 4, 2011 to January 3, 2013 totaling \$54,332.28.

Claimant has the burden of proving all material elements of his claim. Fischer v. Arch Diocese of St. Louis-Cardinal Richter Inst., 703 SW 2d 196 (Mo. App. E. D. 1990); overruled on other grounds by Hampton v. Big Boy Steel Erections, 121 SW 3d 220 (Mo. banc 2003); Griggs v. A.B. Chance Company, 503 SW 2d 697 (Mo. App. W. D. 1973); Hall v. Country_Kitchen Restaurant, 935 SW 2d 917 (Mo. App. S. D. 1997) overruled on other grounds by Hampton. Employee has the burden to establish permanent total disability. Meilves v. Morris, 422 S.W. 2nd 335, 339 (Mo. 1969).

The date of injury for this claim is March 18, 2011. The Report of Injury was timely filed by the Employer on April 1, 2011. Pursuant to $\S 287.430$, no proceeding for compensation under Chapter 287 shall be maintained unless a claim is filed with the Division within two (2) years after the date of injury or death, or the last payment made under the chapter on account of the injury or death. In as much as the Report of Injury was filed within thirty (30) days of the date of injury, the two (2) year statute of limitations applies in this case and we do not need to look at any rules governing the three (3) year statute of limitations.

No medical payments nor temporary total disability payments were made by the Employer. Based upon the facts, the statute of limitations expired on March 18, 2013. A Claim for Compensation was filed by claimant on April 24, 2014

An Answer to the Claim for Compensation was timely filed on behalf of the Employer on May 6, 2014 and included the affirmative defense "claimant's Claim for Compensation is barred by the statute of limitations."

Tolling of Running of the Two (2) Year Statute of Limitations by Medial Payment or Disability Benefits:

Claimant presented facts that he was treated by Dr. Maeda and this care was pursuant to his employee health insurance benefits via St. Luke's Hospital.

In addition, Mr. Parviz was placed on FMLA effective 3-23-11. FMLA job protection expired 6-15-11. Mr. Parviz sought and was awarded LTD benefits from 7-4-11 to 1-3-13 ( a total of 18 months) which benefits were paid by Hartford Insurance, not by St. Luke's Hospital.

In Dungan v. Fuqua Homes, Inc., 437 S.W.3d 807 (Mo. App. W.D. 2014), the Western District Court held that only payments that arise under an obligation of Missouri's Workers' Compensation laws toll the running of the statute of limitations. Payment of LTD benefits is not payment of compensation under an obligation of Missouri's Workers' Compensation laws and, therefore, does not toll the running of the statute of limitations in this case. As the court stated, "...(s)ection 287.430 was to limit what constitutes payment for purposes of tolling the statute of

limitations to payments made by parties with an obligation to make payments under Chapter 287." Id. LTD benefits were an elective benefit paid for by the employee.

The payment of medical expenses by the employee to any health care provider he may have personally selected via private health insurance, does not toll the statute of limitations because to interpret the statute to include those payments, "an employee could extend the statute of limitation for filing a claim for compensation indefinitely simply by continuing to make payments for medical bills, rendering section 287.430 without a statute of limitations for all practical purposes. We find that such a scenario does not comport with the legislative intent of the statute." Id.

There is no evidence supporting the contention that the statute was to be tolled by benefits paid by the employer. The Claim for Compensation was not filed until three (3) years, one (1) month and six (6) days after the date of injury of March 18, 2011. Therefore, the Claim for Compensation was not timely filed, the statute of limitations has run in this case, and claimant does not have any legal basis upon which to further pursue this claim under the workers' compensation laws of the State of Missouri. Mr. Parviz' claim for compensation in denied for failing to file a claim within the time allowed by law. There is no need to analyze any further issues.

Made by: $\qquad$

Lawrence G. Rebman

Administrative Law Judge

Division of Worker's Compensation