Teresa Flores v. Quaker Window Products Co.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 99-180119

**Employee:** Teresa Flores

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

**Insurer:** National Fire Insurance of Hartford (Settled)

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

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 July 30, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued July 30, 2018, is attached and incorporated by this reference.

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.: 99-180119

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

Employer: Quaker Window Products Co. (previously settled)

Address: 00000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

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.

Administrative notice is taken of the records of the Division of Workers' Compensation, which document filing dates for claims for compensation.

The claimant, Teresa 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 15 percent of the person as a whole referable to the neck.

The original claim for compensation of 2000 differs from the 2009 amended claim as it relates to the employer 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 "neck" was the part of the body injured, and by adding "medical bills, future medical treatment" as "additional

**Employee:** Teresa Flores

**Injury No.:** 99-180119

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 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.

The claimant, Teresa Flores, has failed to sustain 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 January 8, 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 no 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 part injured and the settlement reflects no additional body part beyond the neck. It appears that

WV-32-R1 (6-81)

Page 4

**Employee:** Teresa Flores

**Injury No.:** 99-180119

The claim for the 1999 accident or occupational disease was amended solely to extend the statute of limitations in section 287.430.

All other issues raised for resolution are hereby rendered moot.

I certify that on **7-30-19** 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 **any**


Made by:

**HANNELORE D. FISCHER**

Administrative Law Judge

Division of Workers' Compensation