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.

1

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 empl