Rick Hunsaker v. Woody's Trucking

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 11-004178**

**Employee:** Rick Hunsaker

**Employer:** Woody's Trucking (settled)

**Insurer:** Missouri Employers Mutual Insurance Company (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.¹ Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the chief administrative law judge dated April 19, 2019, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued April 19, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 6th day of November 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

¹ Administrative agencies such as the Division of Workers' Compensation and this Commission are not invested with authority to resolve any constitutional challenges raised in the proceedings before them. See *Tadrus v. Missouri Bd. of Pharmacy*, 849 S.W.2d 222, 225 (Mo. App. 1993). For this reason, we will decline to address same, other than to note that such issues/arguments were raised before the Commission. Specifically, employee argues that the holdings in *Treasurer of Mo.-Custodian of the 2nd Injury Fund v. Couch*, 478 S.W.3d 417, 422 (Mo. App. 2015) and *Naefer v. Treasurer of Mo. As Custodian of Second Injury Fund*, No. ED106949, (Mar. 12, 2019) violate employee's due process rights and results in unequal treatment.

Keyla Rhoades, attorney for the Second Injury Fund. | |

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? January 24, 2011.
5. State location where accident occurred or occupational disease contracted: Stoddard County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? No, not against the Second Injury Fund.

Employee: Rick Hunsaker

Injury No. 11-004178

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee was struck in the face by a chain boomer.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Body as a whole referable to the face, neck, head and teeth.

1. Nature and extent of any permanent disability: Undetermined.

1. Compensation paid to date for temporary total disability: $11,684.36

1. Value necessary medical aid paid to date by the employer-insurer: $37,840.09

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 533.34

1. Weekly compensation rate: 355.56

1. Method wages computation: By agreement.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: N/A.

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On January 16, 2019, the employee, Rick Hunsaker, appeared in person and with his attorney, Boyd Green for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General Keyla Rhoades. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Woody's Trucking was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employers Mutual.
2. On January 24, 2011, Rick Hunsaker was an employee of Woody's Trucking and was working under the Workers' Compensation Act.
3. On January 24, 2011, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's average weekly wage was $\ 533.34. The rate of compensation for temporary total disability, permanent total disability and permanent partial disability is $\ 355.56.
6. The employee's injury is medically causally related to the accident.
7. The employer-insurer paid $\ 37,840.09 in medical aid.
8. The employer-insurer paid $\ 11,684.36 in temporary disability benefits.
9. The employee reached medical maximum improvement October 3, 2013.

1. Statute of Limitations.
2. Liability of the Second Injury Fund for Permanent Total or Permanent Partial Disability.

1. Medical Records from the primary January 24, 2011 injury
2. Medical Records from the employee's prior low back condition
3. Medical Records from prior left shoulder, left wrist, right knee and sternum/chest/ribs injuries
4. Deposition of Dr. Woiteshek including his C.V. and reports
5. Deposition of Susan Shea including her C.V. and report

Employee: Rick Hunsaker

Injury No. 11-004178

Second Injury Fund's Exhibits:

A. Deposition of Benjamin Hughes including his C.V. and report.

B. Deposition of the Employee

C. Original Claim for Compensation

D. Amended Claim for Compensation

E. Stipulation for Compromise Settlement with Employer-Insurer

F. Facebook Photos of the Employee

Judicial Notice of the contents of the Division's file for the employee was taken.

WITNESS:

Rick Hunsaker, the employee.

PROPOSED AWARDS:

The employee and the Second Injury Fund filed their proposed Awards on February 19, 2019.

STATEMENT OF THE FINDINGS OF FACT:

I make the following Findings of Fact regarding Issue 1, the Statute of Limitations:

The employee's original Claim for Compensation was filed with the Division of Workers' Compensation on June 28, 2011. The Claim alleged a date of accident or occupational disease of "January 24, 2011." The Claim listed "Mouth, teeth, lips, face, head, neck and body as whole" for parts of body injured. For the description of injury, it states, "Loading cages of chickens and chain boomer slipped off, striking Claimant in face." The Second Injury Fund was not added as a party to the Claim.

The employee's Claim against the employer-insurer was settled by Stipulation for Compromise Settlement on December 28, 2015 for 12.5% of the body as whole regarding facial injuries, 12.5% of the body regarding the neck, 5% of the body as a whole regarding the head, 5% of the body as a whole regarding the teeth and disputed past temporary total and permanent total disability.

On December 14, 2016, the employee filed an Amended Claim. The only amendments to that Claim was changing the employee's mailing address and adding a Claim against the Second Injury Fund for either permanent partial or permanent total disability and listing pre-existing disabilities of low back, left shoulder and bicep, left wrist and forearm, and right knee and the date of those pre-existing disabilities.

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Employee: Rick Hunsaker

Injury No. 11-004178

It is disputed that the Claim against the Second Injury Fund was filed within the time allowed by law.

Under Section 287.430 RSMo, a claim against the Second Injury Fund shall be filed within two (2) years after the date of the injury or within one (1) year after a claim is filed against the employer or insurer pursuant to this Chapter, whichever is later. The statute of limitations is one of extinction and not of repose.

In his proposed Award, the employee cited *Grubbs v. Treasurer of Missouri as Custodian of Second Injury Fund*, 298 S.W.3d 907 (Mo. App. E.D. 2009) and *Treasurer of the State of Missouri-Custodian of the Second Injury Fund v. Cook*, 323 S.W.3d 105 (Mo. App. W.D. 2010), where the Eastern District Court of Appeals and the Western District Court of Appeals held that a "claim" includes a Stipulation for Compromise Settlement. Since a claim against the Second Injury Fund was filed within one year of the Stipulation settlement between the employee and the employer-insurer, it was timely.

Mr. Hunsaker argued that Stipulation for Compromise Settlement with the employer-insurer that was approved on December 28, 2015 was a "Claim". The Amended Claim for Compensation against the Second Injury Fund was filed on December 14, 2016 which was within a year after a "Claim" was filed against the employer or insurer. Therefore the Claim against the Second Injury Fund was timely filed.

It is important to note that in both *Grubbs* and *Cook*, no Claim for Compensation was ever filed against the employer-insurer prior to the Stipulation for Compromise Settlement between the employee and the employer-insurer being approved.

In Mr. Hunsaker's case, a formal Claim for Compensation was filed prior to the Stipulation for Compromise Settlement between the employee and the employer-insurer being approved.

In *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004), Ms. Elrod filed an original Claim for Compensation and the Second Injury Fund was not added as a party. In the original Claim, the listed body parts that were injured were left knee, left ankle, buttocks, and back. More than 3 years after the original Claim was filed, Ms. Elrod filed an Amended Claim for Compensation where she supplemented the body parts injured by adding the right ankle and right knee; and added the Second Injury Fund as a party to the Claim. The Missouri Supreme Court held that Section 287.430 RSMo does not say original claim or the claim. The statute says "a claim" which includes any timely claim. The Supreme Court held that Ms. Elrod's Amended Claim which simultaneously added the Second Injury Fund was a "bona fide claim" since it reported more parts of the body that were injured. Ms. Elrod did not amend or supplement the original Claim to solely extend the Statute of

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Employee: Rick Hunsaker

Injury No. 11-004178

Limitations. The Supreme Court held that the Claim against the Second Injury Fund was not time barred.

The Western District Court of Appeals in *Treasurer of the State of Missouri- Custodian of the Second Injury Fund v. Couch*, 478 S.W.3d 417 (Mo. App. W.D. 2015) held that there was a difference in the circumstances of this case compared with the *Grubbs* and *Cook* cases which were settled with the employer-insurer prior to a formal Claim for Compensation being filed. In *Couch* a formal Claim for Compensation was filed against the employer-insurer. The Court held that because a formal Claim for Compensation was filed, the timely filing against the SIF could be calculated, and the rationale of *Grubbs* and *Cook* did not apply. The Court further stated that unlike in *Elrod*, Couch's settlement agreement did not amend or supplement her initial Claim in any way. The Court held that Couch's settlement was not "a claim" and her Claim for Compensation against the Second Injury Fund was time barred.

In a recent decision, the Eastern District Court of Appeals in *Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund, No. ED106949* addressed the Statute of Limitations as to the Second Injury Fund. Ms. Naeter's original Claim was filed on October 17, 2006 against the employer-insurer only. The employee filed a First Amended Claim against the employer-insurer on December 3, 2010 which amended the Claim by adding parts of the body injured but did not add the Second Injury Fund as a party. The employee filed a Second Amended Claim on December 16, 2011. The only amendment was filing a Claim against the Second Injury Fund. On October 23, 2012, the employer and the employee entered into a stipulation for compromise settlement resolving the Claim against the employer.

Ms. Naeter argued that the one year Statute of Limitations should have begun after "a claim" against the employer either the date of the Second Amended Claim or the date of the settlement stipulation.

With regard to the Second Amended Claim, the Court of Appeals stated that under the Missouri Code of State Regulations, an employer and the SIF are considered two separate parties when an employee makes a Claim for workers' compensation. 8 CSR 50-2.010(7)(B). Due to this regulation and the distinct statute of limitations for employer Claims and Second Injury Fund Claims, the Second Amended Claim had to be treated as two separate claims: one against the employer and one against the Second Injury Fund. The amendment must address the same occurrence and in some way add to the original Claim by adding some cause, effect, or injury relating back to the original Claim. The Court held that Ms. Naeter's Second Amended Claim as to the employer remained unchanged, and did not relate back to the original Claim or the First Amended Claim. Therefore it was not a valid timely filed Claim concerning the employer. The statute of limitation ran against the Second Injury Fund since the Second Amended Claim was filed more than one year after the date of the First Amended Claim.

With regard to the Stipulation for Compromise Settlement, the Eastern District agreed with the Western District in *Couch* that *Grubbs* and *Cook* are distinguishable from cases in which a claim was filed prior to the settlement stipulation. The Court of Appeals held that settlement stipulations with an employer are not "a claim" for calculating the statute of limitations in Second Injury Fund cases unless there was no claim filed prior to a settlement

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**Injury No. 11-004178**

stipulation. The Court held that in Ms. Naeter's case, a Claim was filed prior to the settlement stipulation and the Commission did not err in failing to calculate the Second Injury Fund statute of limitations based upon the date of the settlement stipulation between the employee and the employer-insurer.

In this case, Mr. Hunsaker's original Claim for Compensation was filed on June 28, 2011 and listed a date of accident of January 24, 2011. Listed as the parts of body injured were mouth, teeth, lips, face, head, neck and body as whole. The Second Injury Fund was not added as a party in the original Claim for Compensation.

Mr. Hunsaker's Claim against the employer-insurer was settled by Stipulation for Compromise Settlement on December 28, 2015 for permanent partial disability to the body as a whole regarding the same parts of the body listed in the original Claim. The employee filed an Amended Claim on December 14, 2016. The amendments changed the employee's mailing address and added a Claim against the Second Injury Fund.

Based on a review of the evidence, statutes and case law, I find that the Stipulation for Compromise Settlement did not supplement or amend the original Claim for Compensation with regard to the original facts or parts of the body injured, and it did not relate back to the original Claim against the employer-insurer. I find that the Stipulation for Compromise Settlement was not a valid "claim" against the employer-insurer under Section 287.430 RSMo.

I find that the Amended Claim was amended with the sole change of adding the Second Injury Fund as a party and did not supplement or amend the original Claim with regard to the original facts or the parts of the body injured, and it did not relate back to the original Claim against the employer-insurer. I find that the Amended Claim was not a valid "claim" against the employer-insurer under Section 287.430 RSMo.

I find that the Claim against the Second Injury Fund was filed more than 5 years after the date of the injury; and more than 5 years after the Claim against the employer-insurer. I find that the Claim against the Second Injury Fund was not filed within two (2) years after the date of the injury or within one (1) year after a claim was filed against the employer or insurer.

I find that the employee's Claim for Compensation against the Second Injury Fund was not timely filed and is time barred by the Statute of Limitations under Section 287.430 RSMo. The employee's Claim against the Second Injury Fund is denied.

Based on my ruling on the Statute of Limitation, the remaining issue is moot and will not be ruled upon.

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I certify that on **4-19-19**, 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 **J. K. Lawrence**

Made by:

**Lawrence C. Kasten**

Chief Administrative Law Judge

Division of Workers' Compensation

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