Teresa Flores v. Quaker Window Products Co.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award of Administrative Law Judge

by Separate Opinion)

**Injury No.:** 99-180118

**Employee:** Teresa Flores

**Employer:** Quaker Window Products Co. (Settled)

**Insurer:** Hartford Insurance Co. (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award of the administrative law judge by separate opinion.

The parties asked the administrative law judge to resolve the following issues: 1) the liability of the Second Injury Fund for permanent partial disability benefits; 2) liability of the Second Injury Fund for wage loss; and 3) the bar of the statute of limitations.

The administrative law judge determined that the Second Injury Fund is not liable for permanent partial disability benefits or for wage loss. The administrative law judge also determined that the statute of limitations does not bar employee's amended claim against the Second Injury Fund. The Second Injury Fund filed a timely application for review with the Commission alleging that claimant's amended claim was barred by the statute of limitations.

Employee also filed a timely application for review with the Commission alleging that (1) the lack of a fixed date of injury for claimant's occupational disease should not defeat claimant's amended claim; (2) employee's amended claim alleges pre-existing injuries; (3) pre-existing injuries existed; (4) employee did not work full-time after leaving the employer; (5) employee worked part-time after leaving the employer; (6) the administrative law judge's ruling contradicts case law that one's ability to find work does not mean that one is employable in general labor market; (7) medical opinions show a pre-existing injury; and (8) there is a disability to the neck.

For the reasons set forth below, we affirm the decision of the administrative law judge.

Employee worked for a window factory. Employee filed a workers' compensation claim on November 6, 2000, alleging an occupational disease with the date of injury of December 15, 1999. Specifically, employee's original claim alleged injuries to "right hand, left hand." Tr., 926.

Injury No.: 99-180118

Employee: Teresa Flores

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Employee amended her claim on January 30, 2009, and added the Second Injury Fund as a party. The amended claim alleged injuries to "right hand, left hand, person as a whole." Tr., 928.

On January 19, 2012, employer settled with employee. The settlement agreement alleged disabilities of "25% of each hand, 10% load, 2.5 BAW (neck)." Tr., 932.

The administrative law judge determined that the statute of limitations did not bar employee's amended claim because the settlement agreement with employer mentioned employee's neck, which was an additional body part to the original claim. The administrative law judge therefore held that "[t]here is a substantive difference between the original claim and the 2009 claim as it pertains to the claim against the employer/insurer where the language 'person as a whole' is added to the body parts injured and the settlement reflects body parts beyond the right and left hands." Award, pp. 5-6.

Conclusions of Law

The statute of limitations for filing a claim against the Second Injury Fund is found in § 287.430, RSMo, which provides, in pertinent part:

> A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later. In all other respects the limitations shall be governed by the law of civil actions other than for the recovery of real property. The statute of limitations contained in this section is one of extinction and not of repose.

The Missouri Supreme Court in *Elrod v. Treasurer of Mo.*, 138 S.W.3d 714, 716 (Mo. 2004), held that an amended claim may be filed years after the original claim, with the Second Injury Fund as a party, when the amended claim added more injured parts of the body and employee "did not amend or supplement the original claim solely to extend the statute of limitations in section 287.430." *Elrod*, 138 S.W.3d at 717 (Mo. 2004).

Case law provides that the term "claim" also refers to settlement agreements. For example, in *Grubbs v. Treasurer of Mo. As Custodian of the Second Injury Fund*, 298 S.W.3d 907, 911 (Mo. App. 2009), the court allowed a claim against the Second Injury Fund to be filed within one year after employee entered into a settlement agreement with employer. Similarly, in *Treasurer of the State - Custodian of the Second Injury Fund v. Cook*, 323 S.W.3d 105, 110 (Mo. App. 2010), the court held that "[a] claim that is filed 'pursuant to this chapter' is broad enough to include a compromise settlement filed pursuant to section 287.390."

However, in both *Grubbs* and *Cook*, the employee had not filed an original claim with the Division of Workers' Compensation prior to the settlement agreements. Therefore, the courts allowed the settlement agreements to be the claims for calculating the statute of limitations. The court in *Grubbs* reasoned that the settlement agreement had to be

Injury No.: 99-180118

Employee: Teresa Flores

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considered a claim in order for the administrative law judge to approve the settlement agreement pursuant to § 287.390, RSMo, when parties had yet to file an original claim.¹

The current matter is different. Both the original claim and amended claim were filed prior to the 2012 settlement agreement. In this regard, this matter is similar to *Treasurer of Mo.-Custodian of the 2nd Injury Fund v. Couch*, 478 S.W.3d 417, 422 (Mo. App. 2015), where an original claim was filed, but a claim against the Second Injury Fund was not filed within two years after the date of injury or one year after the filing of the original claim. The court held, "because Couch did not file a claim against [the Second Injury Fund] within two years after the date of her injury or within one year after filing 'a claim' against her employer or insurer, her claim against [the Second Injury Fund] was time-barred." *Couch*, 478 S.W.3d at 422. The *Couch* case distinguished *Grubbs* and *Cook* on the fact that in *Couch*, the employee had filed a claim prior to any settlement agreement. *Couch*, 478 S.W.3d at 421. In following the holding in *Couch*, we find that the 2012 settlement agreement was not a claim affecting or extending the statute of limitations in this matter.²

Furthermore, we hold that the existence of a settlement agreement three years after the amended claim did not substantively alter the 2009 amended claim to include employee's neck. At the time of the filing of the amended claim in 2009, it was only speculation at best if parties would enter into any settlement agreement in 2012, let alone add any body parts to the settlement agreement. Therefore, the administrative law judge erroneously relied on the settlement agreement for determining that the amended claim included employee's neck and, therefore, was not barred by the statute of limitations.

We conclude that employee amended her original claim solely for the purpose of extending the statute of limitations in § 287.430, RSMo. The amended claim did not add another body part to the original claim. Because the amended claim against the Second Injury Fund was filed years after the date of injury and years after the original claim filed against employer, employee's amended claim against the Second Injury Fund was barred by the statute of limitations pursuant to § 287.430, RSMo.

We must dismiss employee's amended claim against the Second Injury Fund. All other issues are moot.

1 "Further, Section 287.390 provides '[n]othing in this chapter shall be construed as preventing the parties to claims hereunder from entering into voluntary agreements in settlement thereof.' Section 287.390 provides the [administrative law judge] can only approve settlements entered into between 'parties to claims.' If 'claim' only referred to the 'Form WC-21 Claim for Compensation,' then an [administrative law judge] could only approve a settlement entered into between parties to a dispute for which a Form WC-21 had been filed, which would not have included this case at the point when the [administrative law judge] approved the settlement. Because settlements are encouraged under the law, we decline to find that a party must make a formal filing of a Form-WC-21 before a settlement may be approved by an [administrative law judge]." *Grubbs*, 298 S.W.3d at 911.

2 See also *Naeter v. Treasurer of Mo.-Custodian of the 2nd Injury Fund*, ED 106949 (March 12, 2019), in which the Eastern District followed the *Couch* decision and held that a settlement stipulation subsequent to a claim is not "a claim" for the purposes of calculating the statute of limitations.

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Employee's January 30, 2009 amended claim against the Second Injury Fund is dismissed because it was barred by the statute of limitations pursuant to § 287.430, RSMo.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued July 30, 2018, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this **3rd** day of April 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- Robert W. Cornejo, Chairman

- Reid K. Forrester, Member

- Curtis E. Chick, Jr., Member

Attest:

- Secretary

Employee: Teresa Flores

Injury No.: 99-180118

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Quaker Window Products Co. (previously settled)

Address of Mission: 10000 W. 1st Street, New York 11, N.Y. 10036

Address of Mission: 10000 W. 1st Street, New York 11, N.Y. 10037

Address of Mission: 10000 W. 1st Street, New York 11, N.Y. 10038

Address of Mission: 10000 W. 1st Street, New York 11, N.Y. 10039

Address of Mission: 10000 W. 1st Street, New York 11, N.Y. 10038

Address of Mission: 10000 W. 1st Street, New York 11, N.Y. 10039

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

Executive Officer: 10000 W. 1st Street, New York 11, N.Y. 10038

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: No
3. Future Requirements Awarded: None

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 25, 2018. Memoranda were submitted on July 20, 2018.

The parties stipulated that the issues to be resolved as the result of hearing are 1) the liability of the employer/insurer for wage loss benefits from the Second Injury Fund, 2) the liability of the Second Injury Fund for increased permanent partial disability benefits or permanent total disability benefits, and 3) the bar of the statute of limitations.

The claimant, Teresa Flores, was employed by Quaker Windows (Quaker) from January of 1994 through March of 2001. Ms. Flores alleged that she had injuries to both of her hands as the result of the repetitive work she did at Quaker; the claim for compensation notes an injury date of December 15, 1999. Ms. Flores dated the left hand and neck pain back to 1998, but also said it began about six months after she started at Quaker. Ms. Flores had left carpal tunnel surgery in March of 2000 (Ms. Flores testified to a date in 2001, however records reflect that the left carpal tunnel surgery was in March of 2000). Ms. Flores described neck surgery in 2001, a fusion at C5-6.

Ms. Flores described the various jobs she performed at Quaker, including assembly line work, sawing and punching muntins. Ms. Flores stated that each of these jobs was repetitive and required use of her hands and neck.

Ms. Flores also testified to a shoulder injury that manifested itself during the punching work. Ms. Flores described a distinct neck injury when her neck popped while she "flipped" a window. Currently, according to Ms. Flores, she has difficulty moving the middle, ring, and smallest finger of her left hand; cannot lift more than ten pounds due to neck and left shoulder pain; has limited motion of her left arm to the front and back of her body; and cannot fully turn her neck in

**Employee:** Teresa Flores

**Injury No.:** 99-180118

either direction. Ms. Flores testified that she has since had several strokes and seizures as well as a brain bleed and hip difficulties and now uses a cane to support herself.

Ms. Flores worked for Casey's General Store (Casey's) from 1998 to 2003 doing cashier work at the register as well as making pizza and donuts. In her deposition testimony, Ms. Flores said that she told Casey's about her bulging disc in her neck and muscle spasms around her left shoulder blade and radiating down her left arm. (Flores depo 9.24.03 p19) In 2003, Ms. Flores went to Kentucky where she worked as a grill cook six days a week from seven in the morning until three in the afternoon. According to Ms. Flores, she then returned to Missouri and had surgery for her spine in 2006 (a fusion from C4 through C7) followed by left shoulder surgery in 2007.

In her deposition testimony, Ms. Flores testified that other than doctor's appointments, the only time she missed work at Quaker was for the flu or a cold (Flores depo 9.24.03 p86).

According to Ms. Flores, either the carpal tunnel injuries alone or the neck injury alone would keep her from working, while the shoulder injury alone would keep her from lifting.

Ms. Flores signed her original claim for compensation, on November 6, 2000, against the employer/insurer only; the claim for compensation was stamped received by the Division of Workers' Compensation on November 8, 2000. An amended claim for compensation including a claim against the Second Injury Fund for permanent partial disability benefits, permanent total disability benefits, and for second job wage loss was filed on January 30, 2009. The stipulation for settlement of the claim against the employer/insurer was signed by an administrative law judge of the Division of Workers' Compensation on January 19, 2012; the stipulation reflects that the settlement is based on 25 percent of each hand as well as 2.5 percent of the body as a whole referable to the neck. The stipulation for settlement reflects no time lost benefits paid.

The original claim for compensation of 2000 differs from the 2009 amended claim as it relates to the employer; the 2009 claim differs by noting a change in the claimant's address, by adding the employer's post office box number, by adding the words "person as a whole" to the allegation that the "hands" were the part of the body injured, and by adding "medical bills, future medical treatment" as "additional statements" in box number 10 of the claim form. The amended claim form was signed by employee's new counsel, Melvin Franke.

**RSMo Section 287.430** 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 filing of any form, report, receipt, or agreement, other than a claim for compensation, shall not toll the running of the periods of limitation provided in this section. The filing of the report of injury or death three years or more after the

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Teresa Flores

Injury No. 99-180118

date of injury, death, or last payment made under this chapter on account of the injury or death, shall not toll the running of the periods of limitation provided in this section, nor shall such filing reactivate or revive the period of time in which a claim may be filed. A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later. In all other respects the limitations shall be governed by the law of civil actions other than for the recovery of real property, but the appointment of a conservator shall be deemed the termination of the legal disability from minority or disability as defined in chapter 475. The statute of limitations contained in this section is one of extinction and not of repose.

*Elrod v Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717 (Mo banc 2004) The claimant's cause of action to receive benefits from the Second Injury Fund accrued from the date claimant filed her amended claim against the employer/insurer listing more injured body parts as well as the initial claim against the Second Injury Fund, where it did not appear that the amended claim was filed solely to extend the statute of limitations.

RSMo Section 287.220.1 There is hereby created in the state treasury a special fund to be known as the "Second Injury Fund" created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.

RSMo Section 287.220.9 The director of the division of workers' compensation shall maintain the financial data and records concerning the fund for the support of the division of workers' compensation and the second injury fund. The division shall also compile and report data on claims made pursuant to subsection 11 of this section. The attorney general shall provide all necessary information to the division for this purpose.

AWARD

The claimant, Teresa Flores, sustained her burden of proof that the bar of the statute of limitations does not apply to her claim for compensation for Second Injury Fund benefits. Ms. Flores is alleging a December 15, 1999 date of accident or occupational disease. The claim for compensation against the employer was filed on November 8, 2000. The amended claim against the employer and insurer and against the Second Injury Fund is dated January 30, 2009. There is a substantive difference between the original claim and the 2009 claim as it pertains to

W.C-32-R1 (b-81)

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Employee: Teresa Flores

Injury No. 99-180118

the claim against the employer/insurer where the language "person as a whole" is added to the body parts injured and the settlement reflects body parts beyond the right and left hands.

Ms. Flores has failed to sustain her burden of proof that she is entitled to Second Injury Fund benefits for lost wages at secondary employment where Ms. Flores failed to produce evidence of time missed from work at either Quaker or Casey's as the result of her work-related injuries.

Finally, Ms. Flores has failed to sustain her burden of proof that she is entitled to permanent disability benefits as the result of the combination of her injuries. The evidence is clear that Ms. Flores was able to continue working full time for several years after her employment with Quaker was terminated when she had carpal tunnel surgery. There is no evidence that Ms. Flores had disabilities preexisting her carpal tunnel complaints. Ms. Flores testified that she had carpal tunnel complaints from at least 1998 on and that she also had neck and left shoulder complaints at the same time.

I certify that on 7-30-18

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By $\qquad n y$