Clifford Austin v. AM Mechanical Services

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 11-112011

**Employee:** Clifford Austin

**Employer:** AM Mechanical Services

**Insurer:** AMCO Insurance Co.

**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 reviewed the evidence, read the briefs, heard oral arguments, 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 and decision of the administrative law judge with this supplemental opinion.

Employee's Missouri claim is time-barred by the statute of limitations. Therefore, we solely address that issue. We do not endorse the other analysis in the administrative law judge's decision as it is not necessary for the resolution of this matter.

Section 287.430, RSMo, provides in pertinent part:

> ... no proceedings for compensation under this chapter shall be maintained unless[,] ... if [a] 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 statute of limitations contained in this section is one of extinction and not of repose.

Here, employer did not timely file a report of injury, therefore, a three-year statute of limitations applies. Employee filed his Missouri claim over eighteen months after the three-year statute of limitations period ended.

Employee argues that workers' compensation payments made pursuant to Kansas law tolled the statute of limitations. Employee bases his argument on a 2015 case, in which the Court of Appeals determined that an out-of-state worker's compensation payment counted as a Missouri payment for the purposes of the statute of limitations. See *Small v. Red Simpson, Inc.*, 484 S.W.3d 341 (Mo. App. 2015). However, the Missouri court in *Small* did not use the current version of § 287.800.1, RSMo, which requires strict construction. Instead, the injury for that case occurred in 1995, prior to the strict construction amendment. The court refused to apply the strict construction amendment retroactively. Because of the significant amendment in § 287.800.1, RSMo, which requires strict construction, we find the decision in *Small* inapplicable to the matter at hand.

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Injury No.: 11-112011

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Here, strict construction requires that in order to toll the statute of limitations, payments must be made "under this chapter." Therefore, payments made to employee under Kansas law did not toll the statute of limitations in Missouri.

Because employee failed to file a claim in Missouri prior to the end of the statute of limitations period and because the statute of limitations was not tolled by Kansas workers' compensation payments, we must deny the claim. All other issues are moot.

**Decision**

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

The award and decision of Administrative Law Judge Kenneth J. Cain is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **1st** day of May 2019.

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LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Clifford Austin

Injury No. 11-112011

FINAL AWARD

Employee: Clifford Austin Injury No. 11-112011

Dependents: N/A

Employer: AM Mechanical Services

Insurer: AMCO Insurance Co.

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 22, 2018 Checked by: KJC/drl

FINDINGS OF FACT AND RULINGS OF LAW

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: March 10, 2011
5. State location where accident occurred or occupational disease was contracted: Olathe, Johnson

County, Kansas; contract of hire, Independence, Jackson County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational

disease? Yes

1. Did employer receive proper notice? Yes
2. Did accident or occupational disease arise out of and in the course of the employment? Yes
3. Was claim for compensation filed within time required by Law? No
4. Was employer insured by above insurer? Yes
5. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee, while in the course and scope of his employment as a sales and service manager for AM

Mechanical Services was struck on his face and head by a falling 107-pound box while standing on

a ladder. He sustained injuries to his neck, both shoulders, both hands and wrists, and right elbow.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Neck, both shoulders, both hands and

wrists, and right elbow.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

1. Nature and extent of any permanent disability: N/A (See additional findings of fact and rulings of law).

1. Compensation paid to date for temporary disability: None pursuant to Chapter 287. (See additional findings of fact and rulings of law).

1. Value necessary medical aid paid to date by employer/insurer? None pursuant to Chapter 287. (See additional findings of fact and rulings of law).

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 1,000.00 per week

1. Weekly compensation rate: 666.67/418.58

1. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: None

Weeks for permanent partial disability: None

Weeks for temporary total (temporary partial disability): None (See additional findings of fact and rulings of law)

Weeks for permanent total disability: None (See additional findings of fact and rulings of law)

Weeks for disfigurement: None

TOTAL: None

1. Future requirements awarded: None

Said payments to begin as of N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Keith Yarwood.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Clifford Austin

Imjury No. 11-112011

Injury No. 11-112011

Employment: N/A

Employer: AM Mechanical Services

Insurer: AMCO Insurance Co.

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 22, 2018

Checked by: KJC/drl

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether the limitation period had expired prior to the filing of the claim for compensation as to the Employer and the Second Injury Fund;
2. Whether Missouri has jurisdiction over the claim;
3. Liability of the Employer for 93 weeks of past temporary total disability benefits at the rate of 121.66 per week for a total of 11,314.38, representing the difference in the amount the benefits were paid at and the Missouri compensation rate of $666.67 per week;
4. Whether the employee is barred from pursuing a Missouri workers' compensation case based on the terms of his settlement of his Kansas workers' compensation case on February 28, 2013 in which he purported to agree to close out all claims in all jurisdictions for his March 10, 2011 accident at work in Kansas;
5. Whether the Kansas settlement was procured by fraud and the employee being under duress;
6. The nature and extent of the disability sustained by the employee;
7. Liability of the employer for future medical benefits;
8. Liability of the Second Injury Fund for compensation; and
9. Whether the employee is entitled to any benefits based on disfigurement.

At the hearing, Mr. Clifford Austin (hereinafter referred to as Claimant) testified that he was born on January 20, 1960. He stated that on March 10, 2011 he was working as a sales and service manager for AM Mechanical Service Company. He stated that he accepted the employment offer by AM Mechanical Service Company by telephone at his home in Missouri in November 2010.

Claimant also testified that he was a part owner of an internet company owned by Josh Grobell of AM Mechanical Service Company. He stated that as a sales and service manager for the company he sold residential and commercial jobs. He stated that the company had five employees.

Issued by DIVISION OF WORKERS' COMPENSATION

Improved

Improved

Employee: Clifford Austin

Claimant testified he sustained an injury at work for AM Mechanical Service Company on March 10, 2011. He stated that his injury occurred while he was on a ladder at a job site and a 107-pound box fell and struck him on his face and head. He stated that when the box struck him, he felt pain in his neck and wrist and a pop in his shoulder blade area.

Claimant testified that Dr. Jackson did a fusion on his neck from C3 or C4 to C5 and C6. He stated that Dr. Guinn did a TFCC repair on his left wrist and a carpal tunnel release. He stated that he also had a nerve transposition in his right elbow, right carpal tunnel surgery, and surgery to remove bone spurs from his right hand.

Claimant had a 3-inch pencil line width scar on his right elbow. He had a 2-inch scar on his right hand less than pencil line width. The scars on his right hand and wrist were barely noticeable. The scar on his left wrist was barely noticeable. His right side TFCC scar was one inch in length and slightly more noticeable than the scars on his left side.

Claimant complained of continuing problems with his range of motion of his cervical spine. He stated that he had to turn his whole body to his left to look in that direction. He stated that his neck sometimes locked up when he turned it. He stated that he sometimes could not see when he turned his head and his pain spiked. He stated that he would sometimes be in bed for a week or two to recover after his pain spiked.

Claimant complained of constant pain in his shoulder blades. He stated that the pain was burning and that it spiked about 30 to 40 times a day. He also stated that the pain radiated down his arm from his neck to his fingers. He stated that the pain on his left side radiated from the back of his shoulder to his elbow. He stated that the pain felt like he had struck his "funny" bone.

Claimant complained of tingling and cramping in his fingertips. He complained of constant swelling in his hands. He complained of dropping things. He complained of an inability to open doors and to lift a gallon of milk to chest height.

Claimant complained of difficulty in sleeping due to his neck, shoulder, and hand pain. He complained of difficulty in driving due to his neck problems. He complained of the need to take narcotic pain medication. He stated that he could no longer do commercial driving or work around dangerous machinery or at heights due to his injuries.

Claimant testified that after he completed his treatment, his employer sent him to Dr. Zarr for an opinion. He stated that Dr. Zarr spent 15 to 20 minutes with him. He stated that Dr. Zarr did no range of motion testing. He stated that Dr. Zarr did test his grip strength in his hands. He also stated that his employer had not paid for any treatment since he last saw Dr. Zarr. He stated that he had paid for his treatment since his last visit with Dr. Zarr.

Claimant complained that he was under duress and that he did not understand what jurisdiction meant when he settled his workers' compensation case arising out of his March 10, 2011 accident

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

in Kansas. He stated that he was not represented by an attorney. He complained that due to his finances he felt that he had to take the Kansas settlement offer. He complained that he was about to lose his house when he entered into the Kansas settlement agreement. He also stated that, although the Kansas settlement agreement provided that he was closing out all claims in all jurisdictions for his injuries on March 10, 2011, that he was never told by the insurance company that he was doing so.

Claimant identified as Exhibit E a letter from Tami Kragen at his employer's workers' compensation insurer. The letter explained the insurance company's offer to settle the case. Claimant acknowledged that the letter stated that the insurance company was offering the $100,000 maximum allowed under Kansas law for a permanent partial impairment case. He complained that the letter did not say that the maximum payable under Kansas law for a permanent total disability case was $125,000.¹ He complained that the letter did not say anything about work disability under Kansas law.

Claimant admitted, however, that a Kansas administrative law judge presided over the settlement conference. He admitted that he appeared at the conference by telephone from his home.

Claimant also testified that he had sustained several injuries or impairments prior to March 2011. He stated that, although he had pain in his feet prior to March 2011, his doctors advised him after his March 2011 accident that his numerous surgeries to treat his injuries in the accident had caused him to develop a neuropathy. He complained of constant burning in his feet. He complained of burning and tingling pain in his thigh. He stated that he could only stand for one hour before he developed pin and needle type aching in his legs and feet.

Claimant testified that he had headaches prior to March 2011. He stated that his March 2011 accident caused his headaches to get worse. He stated that he now had thunderclap headaches.

Claimant testified that he had injured his left shoulder in an accident at work prior to March 2011. He stated that his prior left shoulder injury occurred when he fell from a roof while doing roofing work. He related that he had surgery on his left shoulder prior to March 2011. He complained of range of motion restrictions in his left shoulder.

Claimant testified that he injured his back and right knee in another accident at work prior to March 2011. He stated that after that accident he had an anterior lumbar fusion from L2 to L3. He complained of difficulty with bending due to back pain. He stated that his back "locks" up for weeks if he twists the "wrong" way. He stated that he had difficulty with lifting heavy objects. He stated that he had a good result from his knee surgery following the accident.

¹ The only impairment rating in the case when Claimant agreed to the settlement was a permanent partial impairment rating. There was no evidence alleging that he was permanently and totally disabled at that time.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

Finally, Claimant outlined his education and work history. He stated that he graduated from high school and the Kansas City Business College. He stated that the business college was a trade school.

Claimant testified that he initially worked as a bookkeeper. He stated that he next worked as a junior accountant for a trucking company. He stated that afterwards he worked in roofing sales and as a roofer. He stated that he then designed sprinkler systems. He stated that his next job was at a drafting firm.

Claimant testified that he subsequently owned a heating and air conditioning firm in a partnership. He stated that he shut the business down when he discovered that his partner was "swindling" money. He stated that he next worked at another heating and air conditioning company and for a utility company.

On cross-examination by his employer, Claimant admitted that he reviewed Form 12, the worksheet for his settlement in his Kansas workers' compensation case. The worksheet explained that he was closing out all claims and all injuries in all jurisdictions as part of his Kansas settlement for his March 10, 2011 accident at work.

Claimant admitted that at the Kansas settlement hearing, it was read into the record that he was closing out all injuries and all claims in all jurisdictions. He admitted that he knew that he had the right to hire an attorney in his workers' compensation case. He admitted that the insurance company sent the settlement offer to him several weeks prior to his settlement hearing with the judge.

Claimant admitted that no one forced him to give the answers to the questions he provided at his Kansas workers' compensation settlement conference with the judge. He admitted that he participated in the Kansas workers' compensation settlement conference from the "comfort" of his home.

Claimant admitted that he had managed people in his past jobs. He admitted that he had done bookkeeping work. He admitted that he did not believe that he could do roofing work due to his prior left shoulder injury. He admitted that he was impaired in his ability to lift due to his prior left shoulder injury. He admitted that his alleged inability to be on his feet for any length of time was due to a combination of all of his injuries, including his prior low back injury and fusion. He admitted that he had restrictions due to his prior right knee injury.

On cross-examination by the Second Injury Fund, Claimant admitted that he only began taking narcotic medication on a daily basis after his March 2011 injuries at work. He testified that, although he had permanent restrictions due to his prior low back injury, that he had no such restrictions due to his prior right knee injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

Claimant acknowledged that Dr. Reed, who performed his prior low back surgery, had concluded that Claimant did not give full effort during the testing. He acknowledged that Dr. Reed had concluded that he could not provide any permanent restrictions due to Claimant's prior back injury due to Claimant's failure to give a full effort. He acknowledged that Dr. Reed had recommended that he not lift over 50 pounds.

Claimant testified that he had no difficulty with sleeping prior to March 2011. He testified that his headaches intensified after his March 2011 accident at work and that he developed thunderclap headaches. He stated that he had been hospitalized twice since March 2011 due to his headaches. He stated that his blood pressure was a possible cause of his headaches.

Claimant testified that he had "felt down" and upset since his March 2011 accident. He stated that he did not feel like he could do the things that a 58-year-old man should be able to do. He stated that he had never been treated for any psychological problems.

Medical Evidence

James A. Stuckmeyer, M.D., a board certified orthopedic surgeon, wrote a report for Claimant. Dr. Stuckmeyer noted Claimant's work and medical history. He noted that in January 2016 Lane Peterson, M.D. performed bilateral L3-4 facet joint blocks on Claimant. He noted that on March 9, 2016, Dr. Peterson discussed a radiofrequency ablation procedure with Claimant.

Dr. Stuckmeyer noted the results from his physical examination of Claimant. He concluded that Claimant had sustained a permanent partial disability of 25 percent to his body as a whole due to his March 10, 2011 cervical spine injury at work. He concluded that Claimant had sustained a permanent partial disability of 20 percent to his right elbow as a result of his injury in his March 10, 2011 accident at work.

Dr. Stuckmeyer also concluded that Claimant had sustained a permanent partial disability of 25 percent of his right wrist and 15 percent of his left wrist as a result of the injuries he sustained in his March 2011 accident at work.

Dr. Stuckmeyer further concluded that Claimant had sustained permanent partial disability prior to his March 2011 accident at work. He concluded that Claimant had sustained a permanent partial disability of 20 percent of his lumbar spine, 20 percent to the right knee, and 25 percent permanent partial disability to the left shoulder prior to his March 2011 accident at work.

Dr. Stuckmeyer concluded that Claimant needed work restrictions due to his preexisting injuries to his low back, right knee, and left shoulder. He acknowledged that his disability ratings were in excess of the ratings from Claimant's prior settlements, but indicated that Claimant's disability had progressed since he entered into the settlements.

Finally, Dr. Stuckmeyer concluded that Claimant needed a vocational assessment. He stated that he should have been deemed permanently and totally disabled from performing work in the

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Clifford Austin

Imjury No. 11-112011

open labor market following the vocational assessment, it was his opinion that the permanent total

disability was due to a combination of Claimant's significant preexisting disabilities and the

disabilities from his March 10, 2011 accident at work.

James S. Zarr, M.D., a specialist in physical medicine and rehabilitation, examined Claimant

on January 16, 2013 at the request of Claimant's employer. Dr. Zarr noted Claimant's injuries in

the March 10, 2011 accident at work. He noted that he based his impairment rating on the

4th edition of the AMA Guides to the Evaluation of Permanent Impairments. He concluded that

Claimant had sustained a permanent partial impairment of 27 percent to his body as a whole as a

result of Claimant's cervical spine injury with a C6 - C7 fusion, left carpal tunnel syndrome with

a release, left wrist ligament repair, right carpal tunnel syndrome with a release, right wrist

ligament repair, a bone spur removal from the right thumb, and a right ulnar nerve transposition.

The remaining voluminous medical records were cumulative of the evidence and testimony.

Vocational Evidence

Michael J. Dreiling, a vocational expert, testified by deposition for Claimant. Kevin L. Ross,

a vocational case manager and certified rehabilitation counselor, testified by deposition for

Claimant's employer. Mr. Dreiling testified that he evaluated Claimant on June 21, 2017. He

noted Claimant's medical, educational, and vocational history.

Mr. Dreiling concluded that Claimant was not realistically employable in the open labor

market due to a combination of Claimant's restrictions from his last injury at work on March 10,

2011 and Claimant's preexisting injuries.

Mr. Ross testified that Claimant could work with Claimant's medical restrictions and that

Claimant had transferable work skills to other employment. He also testified that he did a labor

market survey of the 25-mile radius of Independence, Missouri. He identified bookkeeping and

accounting jobs that he believed that Claimant could do based on Claimant's restrictions and noted

that he believed that Clamant could compete for work and obtain jobs.

On cross-examination by Claimant, Mr. Ross admitted that there were several errors in his

report. He admitted that he worked for Corvel, a health maintenance company. He stated that the

company worked with injured workers and nurse case managers to help workers get back to work.

He stated that he had been doing job placement work for a year and a half. He stated that he had

placed 2 workers over the last 18 months.

Mr. Ross acknowledged that the use of narcotic medication might affect a person's

employability. He stated that Claimant's case was the only vocational assessment he had done in

Missouri. He stated that the remainder of his assessments were in Illinois. He stated that in the

25 assessments he had performed, he did not believe that he had ever found someone not

employable in the open labor market.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

On cross-examination by the Second Injury Fund, Mr. Ross indicated that Claimant's good employment record would be a favorable factor in job placement. He stated that Claimant was not too "old" for retraining. He stated that Claimant's marijuana use to control his pain and his narcotic medication would show up in a drug screening.

In his report, Mr. Ross listed more than 20 jobs in the Independence area that he believed that Claimant could do with his restrictions.

Other Exhibits

The Second Injury Fund deposed Claimant on October 30, 2017. Claimant testified at his deposition that one of his prior jobs was as a territory sales manager for Goodman Distribution Company. He admitted that he had a 2017 hunting and fishing license. He admitted that he had done some hunting and fishing in 2017. He admitted that he had hunted deer since his March 2011 accident at work. He also admitted that his knee was unstable prior to 2011 and that his knee and low back pain made it uncomfortable to fish prior to 2011.

Employer Exhibit 11 was the transcript of the Kansas settlement hearing on February 28, 2013. Claimant's employer read into the record the terms of the settlement agreement. The attorney noted that the settlement was based on a permanent partial impairment of 27 percent to the body as a whole. The attorney noted that future medical treatment was left open. The attorney noted that the settlement was intended to close out any and all issues and injuries, any and all jurisdictions, and any dates of alleged accident that Claimant may have sustained while working for AM Mechanical Service Company.

The judge then asked Claimant whether Claimant wanted him to approve the settlement. Claimant responded in the affirmative. The Judge noted on the record that he found that the settlement was in Claimant's best interest.

In addition, the Kansas Form 12, or the worksheet for settlements, set out the terms of the Kansas settlement agreement in writing. The worksheet for settlements noted that the settlement closed out any and all issues and injuries, any and all jurisdictions, and dates of alleged accident that Claimant may have sustained while working for AM Mechanical Service Company.

In Exhibit 1 of the Kansas settlement agreement Claimant affirmed that he understood that he had the right to hire an attorney to represent him in his Kansas workers' compensation case. He affirmed that he understood that he had the right to a trial in his workers' compensation case. He affirmed that he understood that, if he exercised his right to a trial, it was possible that the judge might award more or less money than was being proposed in the settlement agreement. He signed the document on February 13, 2013.

Claimant offered into evidence the stipulations for settlement of his prior Missouri workers' compensation cases. Injury No.: 97-496268 showed that Claimant sustained an injury to his right

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

knee at work on January 15, 1997. He settled his case with his employer based on a permanent partial disability of 7 percent of the right knee. Claimant was represented by an attorney in the case. Claimant's and the insurance company's attorney added specific language to the stipulation form that provided that "Claimant agrees to dismiss concurrent Kansas case, docket #236,645". (emphasis added)

The stipulation for settlement under Injury No.: 97-496267, date of injury, December 10, 1997 showed that Claimant settled his workers' compensation case based on a permanent partial disability of 12.5 percent to his body as a whole. The stipulation for compromise lump settlement of Claimant's case against the Second Injury Fund in the same case showed that Claimant had sustained a herniated disk in the December 10, 1997 accident at work and that Claimant's preexisting disability resulted from a left shoulder injury. The parties stipulated that Claimant's preexisting left shoulder injury had resulted in a permanent partial disability of 22.5 percent of Claimant's left upper extremity.

Law

After considering all the evidence, including Claimant's testimony, the medical reports and records, the vocational depositions and reports, the transcript of the Kansas settlement agreement and the accompanying documents, the other exhibits, and after observing Claimant's appearance and demeanor, I find that Claimant's claim for benefits in Missouri must be denied as to both his employer and the Second Injury Fund as set out below.

Burden of Proof

Claimant had the burden of proving all material elements of his claim. *Fischer v. Arch Diocese of St. Louis - Cardinal Richter Inst.*, 703 SW 2nd 196 (Mo. App. E.D. 1990); overruled on other grounds by *Hampton vs. Big Boy Steel Erections*, 121 SW 3rd 220 (Mo. Banc 2003); *Griggs v. A.B. Chance Company*, 503 S.W. 2d 697 (Mo. App. W.D. 1973); *Hall v. Country Kitchen Restaurant*, 935 S.W. 2d 917 (Mo. App. S.D. 1997); overruled on other grounds by *Hampton*. He did not prove either his employer's or the Second Injury Fund's liability for any compensation.

Jurisdiction to rule on validity of a Kansas workers' compensation settlement agreement approved by a Kansas workers' compensation administrative law judge

Claimant sustained an injury at work in Kansas on March 10, 2011. He settled his Kansas workers' compensation case in Kansas. The Kansas settlement agreement was approved by a Kansas administrative law judge on February 28, 2013. The Kansas settlement agreement provided that Claimant was closing out all injuries and all claims arising out of his March 10, 2011 accident in all jurisdictions.

On September 23, 2015, however, Claimant filed a claim for compensation in Missouri seeking workers' compensation benefits in Missouri for the March 10, 2011 injury. He argued at his

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TI50911665

Issued by DIVISION OF WORKERS' COMPENSATION

Imployee: Clifford Austin

injury No. 11-112011

hearing in Missouri that Missouri had jurisdiction based on a contract of hire in Missouri. He also argued that he was not bound by the Kansas settlement agreement, although it provided that he was closing out all claims for all injuries in all jurisdictions. He argued that the Kansas settlement agreement or contract was invalid because he was under duress and did not understand what jurisdiction meant.²

Thus, Claimant is in essence asking the Missouri Division of Workers' Compensation to rule that a Kansas settlement agreement or contract approved by a Kansas administrative law judge was invalid at its inception. He cited no authority, however, showing that the Missouri Division of Workers' Compensation had jurisdiction to rule on the validity of a Kansas settlement or to declare a Kansas settlement approved by a Kansas administrative law judge invalid.

In addition, the Court found no such authority. Kansas law is clear that the Kansas Division of Workers' Compensation and the Kansas Workers' Compensation Appeals Board have exclusive jurisdiction over all matters related to the Kansas Workers' Compensation Act. See Cincinnati Ins. Co. v. Larry G. Karns, Director of Workers' Compensation, Kansas Department of Labor, 52 Kan. App. 2d 846, 379 P.3d 399 (2016)

² None of the evidence offered by Claimant showed that his employer pressured, forced, or coerced him in any way to enter into the settlement agreement. Claimant testified that he was under duress because he was about to lose his house. His employer had nothing to do with him losing his house. His employer met its obligations under the Workers' Compensation Act to provide medical treatment and to pay temporary total disability benefits to him. Claimant was advised in the settlement proceeding in Kansas that he had the right to hire an attorney. His employer also sent a detailed letter to Claimant explaining the bases for its offer to settle the case. His employer offered two options for Claimant to settle the case. His employer explained in the letter that Claimant did not have to settle his case. His employer explained the statute of limitations in the letter. His employer explained the doctor's impairment rating in the letter. His employer explained that Kansas had a cap on benefits. There was no duress.

Also, contrary to Claimant's argument in his brief, his employer had no obligation to advise Claimant that he allegedly had a cause of action in Missouri or that his benefits would be greater in a permanent total disability case if he pursued the case in Missouri. Claimant's employer's attorney did not have a fiduciary duty to Claimant. Claimant's employer's attorney's fiduciary duty was to the employer. Claimant's employer's attorney had no duty to advise Claimant of the possible benefits in the other 49 states where Claimant could have allegedly consummated the employment contract by telephone as he alleged that he did in Missouri.

Similarly, there was no credible evidence that Claimant did not understand dual jurisdiction. Claimant's file showed that he had settled two prior workers' compensation cases. He hired an attorney in the prior cases. One of the stipulations for settlement in one of his prior cases showed that both Missouri and Kansas had jurisdiction in the case. The parties also added specific language to the stipulation showing that the Kansas case was being dismissed. Claimant and his attorney signed the stipulation for settlement in the case with dual jurisdiction.

In addition, Claimant admitted that he had worked in sales. He admitted that he had worked extensively with contracts. He knew or should have known the consequences of entering into a contract. He definitely knew that he had the right to hire an attorney in a workers' compensation case. He hired an attorney in his two prior Missouri workers' compensation cases.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 11-112011

Employee: Clifford Austin

Certainly, what Claimant is asking the Missouri Division of Workers' Compensation to do falls within the exclusive jurisdiction of the Kansas Division of Workers' Compensation or the Kansas Court system. He did not explain how the Missouri Division of Workers' Compensation had jurisdiction to interpret the Kansas Workers' Compensation Act to determine what constituted a valid settlement under the Act. He did not explain how Missouri could declare a fully performed Kansas workers' compensation settlement agreement or contract invalid at a hearing in Missouri five years after a Kansas administrative law judge had approved the settlement agreement or contract. 3 The Missouri Division of Workers' Compensation lacks jurisdiction to provide the relief Claimant is seeking.

Full Faith and Credit

Claimant's employer argued that the Kansas settlement agreement approved by a Kansas workers' compensation administrative law judge was entitled to full faith and credit under the United States Constitution as interpreted by the Courts. The full faith and credit clause of the United States constitution requires all states to give full faith and credit to the public records, Acts, and judicial proceedings of all other states. The full faith and credit clause applies to workers' compensation cases. See Magnolia Petroleum v. Hunt, 320 U.S. 430 (1943); questioned on other grounds in Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980); See also Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622 (1947).

The full faith and credit clause, however, does not prohibit a second state from re-litigating a workers' compensation case in all instances. See McCartin; Thomas; Loudenslagen v. Gorum, 195 S.W.2d 498 (Mo. 1946). For example, if one state decides a case based on its substantive law and the same action is later brought in another state with jurisdiction and where the substantive law differs, the full faith and credit clause would not prohibit the second state from hearing the case and applying its substantive law. Loudenslagen.

3 Claimant argued in his brief that the Kansas administrative law judge did not have jurisdiction to approve a Missouri settlement. The Kansas administrative law judge did not approve a Missouri settlement. He approved a Kansas settlement in which Claimant agreed that he was closing out all issues and all claims in all jurisdictions. Claimant also incorrectly argued that no consideration was paid in the Kansas case to close out the Missouri claim. First, consideration was not needed to close out a claim. Consideration is only needed for a contract or settlement. A party can dismiss a case without any consideration or in effect close out the claim. Also, in Claimant's case, consideration was paid to settle the Kansas case and for the agreement by Claimant in the Kansas settlement agreement that he was accepting the money in the Kansas case to close out all issues and all claims in all jurisdictions.

Finally, Claimant argued that the money paid in the Kansas settlement was insufficient compensation for a permanently and totally disabled individual under Missouri law. That argument was also specious. The case was settled in Kansas, not Missouri. Claimant had not filed a case in Missouri when he settled his case in Kansas. There was no evidence that he was permanently and totally disabled when he settled his Kansas case. The only impairment rating when he settled the case in Kansas was not a permanent total rating. He settled his Kansas case on February 28, 2013. He did not obtain a disability rating in his Missouri case until May 5, 2017, more than four years after he had settled his Kansas case.

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In Loudenslagen, the Arkansas workers' compensation commission denied a widow and minor child's motion to dismiss their claim in a death case. The Commission then entered an order on the merits. It found that Mr. Loudenslagen, who was killed in a motor vehicle accident in Arkansas, was an independent contractor and not an employee of the alleged employer. Thus, it found that the widow and minor child were not entitled to any workers' compensation benefits.

The widow and minor child had also filed a claim in Missouri. Missouri jurisdiction was asserted on the basis of an alleged contract of hire in Missouri. The alleged employer did not challenge Missouri's jurisdiction. Instead, it argued that Missouri was bound by the Arkansas decision under the full faith and credit clause of the United States Constitution.

The Missouri Supreme Court noted the full faith and credit clause, but affirmed the lower court ruling in Missouri awarding death benefits to the widow and minor child. The Missouri Supreme Court noted that the Arkansas and Missouri Workers' Compensation Acts contained different definitions of the terms "employee" and "employer". The Missouri Supreme Court noted that when two states had different definitions of the substantive laws involved, the second state was not bound by the decision of the earlier state applying its substantive law. The Missouri Supreme Court then affirmed the lower Missouri court ruling that Mr. Loudenslagen was an employee of the alleged employer under the definitions of "employee" and "employer" under the Missouri Workers' Compensation Act.

Thus, if Claimant's Missouri workers' compensation case had hinged on whether Missouri had to give full faith and credit to a Kansas decision based on a Kansas substantive law, which differed from Missouri's substantive law, he would not have been bound by the Kansas decision. Also, he would not have been prohibited from receiving a supplemental award in Missouri based on Missouri law had that been the only issue. Thomas; McCartin.

The issue in Claimant's case, however, did not involve any differences in the substantive laws of the two states. There was no issue as to whether Missouri law provides for a supplemental award in appropriate cases. Instead, the issue in Claimant's case involved whether he could pursue a case in Missouri based on the language he assented to in the settlement agreement or contract approved in Kansas by a Kansas administrative law judge. That language provided that the Kansas settlement agreement or contract approved by a Kansas administrative law judge was intended to close out all injuries and all issues in all jurisdictions. Thus, for that reason, Claimant wanted the Kansas settlement agreement or contract declared invalid.

Claimant, of his own volition and free will, entered into the Kansas settlement agreement or contract. His employer's attorney read into the record in the Kansas proceeding that the settlement was intended to "close out any and all issues and injuries, any and all jurisdictions, and any dates of alleged accident that Mr. Austin may have sustained while working for AM Mechanical Service

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Company".4 The judge then specifically asked Claimant whether Claimant wanted him to approve the Kansas settlement agreement. Claimant responded in the affirmative.

Thus, full faith and credit must be given to the language in the Kansas settlement agreement or contract approved by a Kansas administrative law judge. The full faith and credit due the language in the Kansas settlement agreement or contract prohibited Claimant from proceeding against his employer in any other jurisdiction.

Therefore, Claimant's claim for benefits in Missouri as to his employer is denied. His claim is also denied based on his employer's statute of limitations defense. Claimant's employer's statute of limitations defense is addressed in the section of the award pertaining to Second Injury Fund liability and the limitation period.

Second Injury Fund Liability

Claimant's claim for compensation against the Missouri Second Injury Fund was not barred by any language in the Kansas settlement agreement approved by a Kansas administrative law judge. The Missouri Second Injury Fund was not a party to the Kansas settlement agreement. The Kansas settlement agreement made no reference to the Missouri Second Injury Fund. There was no showing that Claimant intended to close out his right to benefits from the Missouri Second Injury Fund in a Kansas settlement proceeding in which the Second Injury Fund was not a party. Claimant is not prohibited under the full faith and credit clause and the Missouri Supreme Court's interpretation of it from pursuing a claim in Missouri as to the Second Injury Fund.

Whether the Limitation Period had Expired Prior to the Filing of the Claim for Compensation Against the Employer and the Missouri Second Injury Fund

The statute containing the Missouri limitation period as to claims filed against an employer and the Missouri Second Injury Fund provides as follows:5

---

4 The written "Work Sheet for Settlements Injury cases" form included with the transcript of the Kansas settlement agreement also provided that the settlement closed out any and all issues and injuries, any and all jurisdictions.

5 The Second Injury Fund did not address the limitation period in its brief. Instead, the Second Injury Fund argued that Claimant was not entitled to any benefits because § 287.220.12 provides that: "No compensation shall be payable from the Second Injury Fund if the employee files a claim for compensation under the workers' compensation law of another state with jurisdiction over the employee's injury or accident or occupational disease". § 287.220.12 RSMo. 2014.

The Second Injury Fund argued that because Claimant filed a claim for compensation in Kansas he was prohibited from receiving compensation from the Second Injury Fund under Missouri law. The Second Injury Fund, however, did not address in its brief whether the 2014 amendment to the law could be applied retroactively to an injury, which occurred in 2011.

Missouri law is clear that a substantive change in the law may not be applied retroactively. *Lawson v. Ford Motor*, 217 S.W.3d 345 (Mo. App. E.D. 2007). The 2014 statute was a substantive change in the law and became effective on January 1, 2014. It removed Second Injury Fund liability in certain cases, such as Claimant's where his injury

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287.430. Limitation as to action, exception. - 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.

§ 287.430 RSMo. 2005

In addition, the Missouri statutes at $\S 287.800$ RSMo. 2005 provides as follows:

287.800. Law to be strictly construed. - 1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

§ 287.800 RSMo. 2005.

Thus, a claim for compensation as to an employer must be filed within 2 years of the date of injury or the last payment made under "this chapter" on account of the injury. A claim for compensation as to the Second Injury Fund must be filed within 2 years of the date of the injury

[^0]

[^0]: occurred prior to the effective date of the statute. Thus, based on Missouri law the statute may not be applied retroactively to Claimant's case.

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or one year after a valid claim is filed against the employer. If a timely report of injury is not

filed by the employer, the limitation period is extended by one year. The report of injury must be

filed within 30 days of notice of an injury. § 287.380 RSMo. 2005.

Claimant's file does contain a Missouri report of injury. The imaged copy of the report of

injury, however, is not completed nor signed or date stamped. The computer record shows that

the purported report of injury was processed on May 5, 2016. Thus, there was no showing that a

timely report of injury was filed in the case. Therefore, the limitation period in Claimant's case

was three years from the date of his injury or the last payment made under "this chapter".

Claimant's accident occurred on March 10, 2011. Thus, the three-year limitation period,

absent being tolled by a payment made by his employer under Chapter 287, expired on March 10,

1. Claimant did not file his claim for compensation in Missouri until September 23, 2015.

Claimant also failed to offer any evidence showing that the limitation period was tolled by a

payment made by his employer under Chapter 287 as required by the statute. See *Dungan v.

Fuqua Homes, Inc.*, 437 S.W.3d 807 (Mo. App. W.D. 2014). In addition, the statute, as noted

above, must be strictly construed. Therefore, only payments made pursuant to Chapter 287 tolled

the limitation period and not those made pursuant to the Kansas Workers' Compensation Act.

See *Dungan* for the proposition that only payments made by the employer and pursuant to

Chapter 287 toll the Missouri statute of limitations.

Claimant's employer admitted at the hearing that it paid temporary total disability benefits in

Claimant's case. It argued that it paid the benefits under Kansas law and not pursuant to

Chapter 287. The evidence supported Claimant's employer's argument. The temporary total

disability benefits were paid to Claimant at the Kansas rate of $545.00 per week for 93 weeks,

from March 11, 2011 to December 21, 2012.

Claimant argued at his hearing in Missouri that his employer owed an additional $11,314.38

in temporary total disability benefits based on Missouri law. In his attempt to prove the alleged

underpayment of benefits based on Missouri law, Claimant's argument supported his employer's

position that the temporary total disability benefits previously paid in the case were paid pursuant

to Kansas law and not under Chapter 287 as required to toll the limitation period under Missouri

law.

Claimant argued that his employer owed the additional temporary total disability benefits

under Missouri law, because his employer paid the benefits at the Kansas rate of 545.00 per

week for 93 weeks, instead of at the Missouri rate of 666.67 per week for the 93 weeks. Again,

that argument supported Claimant's employer's position that the benefits were paid pursuant to

Kansas law.

In addition, Claimant's employer admitted that the Missouri rate for temporary total disability

benefits was $666.67 per week. Claimant's employer admitted that Claimant's average weekly

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wages were 1,000.00 per week, which yielded a compensation rate of 666.67 per week under Missouri law. (Two-thirds of the employee's average weekly wages).

Thus, the uncontroverted evidence showed that the Missouri rate for temporary total disability benefits in Claimant's case was $666.67 per week and that Claimant's employer paid the benefits at the Kansas rate of $545.00 per week. The uncontroverted evidence showed that Claimant's employer was located in Kansas. The uncontroverted evidence showed that Claimant's accident occurred in Kansas on March 10, 2011. His temporary total disability benefits were started effective with March 11, 2011. He and his employer were clearly pursuing the case under Kansas law from March 11, 2011 to December 21, 2012 when the temporary total disability benefits were paid at the Kansas rate and under Kansas law.6

Likewise, there was no evidence showing that any temporary total disability benefits were paid under Chapter 287. Claimant did not raise Missouri jurisdiction based on an alleged contract of hire in Missouri until September 23, 2015. He did not allege that any temporary total disability benefits were paid at the Missouri rate of $666.67 per week. He did not allege, nor offer any proof, that any of the temporary total disability payments made in the case from March 11, 2011 to December 21, 2012 were made pursuant to Chapter 287 as opposed to Kansas law. The evidence clearly showed that the temporary total disability benefits were paid under Kansas law and that the payments did not toll the Missouri statute pertaining to the limitation period which must be strictly construed. Id.

Also, Claimant offered no evidence showing that his employer provided any treatment pursuant to Chapter 287. All the treatment provided in the case by Claimant's employer was under Kansas law and not pursuant to Chapter 287.7 In addition, as noted above, the limitation period in Claimant's case expired under Missouri law on March 10, 2014. Therefore, no treatment provided after that date would toll the limitation period.8

At his Missouri hearing, Claimant only referenced his examination by Dr. Zarr on January 16, 2013 as support for his argument that the limitation period in his Missouri case was tolled. That argument lacked merit.

First, Dr. Zarr did not examine Claimant for treatment purposes on January 16, 2013. Dr. Zarr did not provide any treatment to Claimant on January 16, 2013. Dr. Zarr examined Claimant on

6 There was no evidence showing that Claimant's employer or the insurer knew that Missouri had jurisdiction in the case during the period from March 11, 2011 to December 21, 2012 when temporary total disability benefits were paid in the case. His employer was located in Kansas and his accident occurred in Kansas.

7 As noted above, Claimant's employer was located in Kansas and his accident occurred in Kansas. Both Claimant and his employer were clearly only pursuing the case in Kansas leading up to his settlement in the case in Kansas on February 28, 2013. Based on Claimant's testimony and the evidence in the case, no treatment was provided by Claimant's employer after the Kansas settlement on February 28, 2013.

8 The Missouri limitation period is one of extinction and not repose. $287.430 RSMo. 2005. Therefore, any payments made after March 10, 2014 would not revive the limitation period.

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January 16, 2013 for purposes of rendering an impairment rating under Kansas law and not for any treatment under Kansas or Missouri law.

Dr. Zarr rendered his Kansas impairment rating in Claimant's Kansas workers' compensation case in his January 16, 2013 report. He noted in his January 16, 2013 report that he had based his impairment rating on the $4^{\text {th }}$ edition of the American Medical Association Guides for the Evaluation of Permanent Impairments. Kansas is an impairment state and it requires the rating physician to use the AMA Guides. Missouri is a disability state. Missouri does not use the AMA Guides. Dr. Zarr did not render a Missouri disability rating in his January 16, 2013 report.

Dr. Zarr's January 16, 2013 impairment rating was used as the basis for the settlement of Claimant's Kansas workers' compensation case on February 28, 2013. Also, as noted above, Dr. Zarr's examination of Claimant on January 16, 2013 was not for treatment purposes. Dr. Zarr rendered no treatment to Claimant on January 16, 2013. Claimant cited no authority providing that an examination for rating purposes and a payment of a doctor's bill for rendering a rating tolled the limitation period. There is no such authority. There is authority providing that a payment of a doctor's bill for treatment under Chapter 287 tolls the limitation period. Dungan.

Thus, the evidence showed that the limitation period in Claimant's case was not tolled for any reason, other than his employer's failure to timely file a report of injury in Missouri. Because his employer did not timely file a report of injury in Missouri, the limitation period was extended for one year from March 10, 2013 to March 10, 2014. Claimant did not file his claim for compensation in Missouri until September 23, 2015, or more than 18 months after the limitation period had expired.

Therefore, Claimant's claim in Missouri must be denied as to his employer based on full faith and credit to the Kansas settlement agreement and Claimant's failure to timely file a claim for compensation in Missouri. His claim must also be denied as to the Second Injury Fund based on his failure to timely file a claim for compensation as to the Fund. All other issues raised at the hearing were rendered moot.



Kenneth J. Cain

Administrative Law Judge

Division of Workers' Compensation