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
- 2 -
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
- 3 -
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.