Janet Scott v. SRG Global

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 09-108211**

**Employee:** Janet K. Scott

**Employer:** SRG Global (settled)

**Insurer:** Hartford Insurance Co. (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 June 18, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued June 18, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **21st** day of February 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

Assistant Attorney General Crystal Williams, 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? July 15, 2009.
5. State location where accident occurred or occupational disease contracted: New Madrid 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.

Employee: Janet K. Scott

Injury No. 09-108211

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

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee was working in the molding department trimming, inspecting and packing parts on a conveyer belt when the concrete gave out where she was working causing her to slip down and injure her left shoulder.

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

1. Parts of body injured by accident or occupational disease: Left shoulder.

1. Nature and extent of any permanent disability: See Award.

1. Compensation paid to date for temporary total disability: $4,491.19.

1. Value necessary medical aid paid to date by the employer-insurer: Unknown.

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

1. Employee's average weekly wage: 495.00.

1. Weekly compensation rate: 330.00.

1. Method wages computation: By stipulation.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

Page 2

Employee: Janet K. Scott

Injury No. 09-108211

On March 27, 2019, the employee, Janet K. Scott, appeared in person and with her attorney, Michael Moroni for a Hearing for a final award. The Second Injury Fund was represented at the Hearing by their attorney, Assistant Attorney General Crystal Williams. For purposes of judicial efficiency the Hearing included evidence for both Injury No. 09-108211 and Injury No. 10-020815. Separate awards are being issued for each case. At the time of the Hearing, 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 for Injury Number 09-108211, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Hartford Insurance Company.
2. On July 15, 2009 the employee was an employee of SRG Global and was working under the Workers' Compensation Act.
3. On July 15, 2009 the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's average weekly wage was 495.00, resulting in a compensation rate of 330.00 for temporary total disability benefits and permanent partial disability benefits.
6. The employee's injury was medically causally related to the accident.
7. The employer-insurer paid $4,491.19 in temporary disability benefits.

1. Whether the employee's claim against the Second Injury Fund was filed within the time allowed by law.
2. Liability of the Second Injury Fund for permanent partial disability.

The following exhibits were offered and admitted into evidence without objection:

1. Deposition and Exhibits of Dr. Raymond Cohen
2. Deposition and Exhibits of Susan Shea
3. Prior Stipulations
4. Medical Reports of Dr. Palen
5. Records Appleman Podiatry

Page 3

Employee: Janet K. Scott

Injury No. 09-108211

6: Social Security Decision

7: Report Dr. Chabot

8: Records Gideon Medical Center

9: Records Twin Rivers Medical Center

10: Records Ferguson Medical Group (Foltz)

11: Records Dr. Protzel (foot)

12: Records Dr. Stahly (foot and MRI of low back)

13: Records ProRehab of Kennett (shoulder)

14: Records Dr. Morgan (thyroid)

15: Records Doctors Park Surgery (foot/Protzel)

16: Records Steele Family Clinic (McPherson)

17: Records Dr. Wu Wen (thyroid)

18: Records Dr. Gary Schmidt (foot)

19: Records Dr. Landry (shoulder)

20: Records Tri-County Home Health Care

21: Records Dr. Emanuel (shoulder)

22: Pre-Hearing and Mediation Requests

23: Hearing Requests

The Second Injury Fund Exhibits:

A: Original Claim for Injury #09-108211

B: Amended Claim for Injury #09-108211

C: Original Claim for Injury #10-020815

D: Amended Claim for Injury #10-020815

E: Deposition of Janet Scott

Judicial notice was taken of the contents of the Division's file.

The parties filed proposed awards in this matter.

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

Background

The employee, Janet Scott (hereafter "Employee"), was 57 years old at the time of Hearing. She has an eleventh grade education. She has been married 39 years and has three adult daughters. Her work history includes work as a private duty CNA, a home health aid, and retail jobs such as Walmart, Fred's, and the Dollar Store. She owned a restaurant from 2001 to 2003 called Mama J's Pizzeria. She also operated a day care out of her home when her children were young. Employee last worked at SRG Global as an assembler for approximately 25 years.

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Employee: Janet K. Scott

Injury No. 09-108211

Her job duties included machine operator, a packer, assembler and she worked as a "100 percenter" (required looking at a part and making sure it met standards).

Pre-existing Conditions

Low back

Employee injured her low back at work in 1992. Employee's understanding was that she was diagnosed with a back strain. She testified that she has worn back braces through the years. She testified that if she stands too long her back feels like it is breaking in two.

Neck/Head

In February of 2007 Employee fell on a concrete floor at work and injured her head, neck and tailbone. She was diagnosed with a contusion to the coccyx, cervical strain and headache. She received conservative treatment.

Bilateral feet

Employee treated with Dr. Foltz at Ferguson Medical Group on March 29 and April 12 of 2007 for plantar fasciitis of the left heel and a Morton's neuroma on her left foot. She was treated conservatively with pads for her feet and Power Step insoles.

On February 17, 2010 Employee was evaluated by Dr. Protzel for complaints of pain in both feet and ankles, right worse than the left. An x-ray of the left foot revealed a large inferior calcaneal exostosis of the plantar fascia consistent with heel spur syndrome. At her follow-up appointment on March 3, 2010 she was diagnosed with bilateral plantar fasciitis, metatarsalgia and neuromas of the intermetatarsal space and was prescribed Naprosyn.

Spider bite

Employee sustained a spider bite to her left breast in July of 2007. She developed a staph infection in the wound and had symptoms of fatigue, chest pain and shortness of breath. She testified that the staph infection caused damage to her heart and lungs.

Accident on July 15, 2009

On approximately July 15, 2009 Employee was working in the molding department trimming, inspecting and packing parts on a conveyer belt. She went around the back side to pack parts and the concrete gave out on her causing her to slip down and hit her left side. Her left shoulder hurt. The injury was timely reported and an accident report was completed by her supervisor.

Employee went on her own to Dr. Landry who ordered an MRI that revealed a rotator cuff partial tear with impingement from an enlarged acromioclavicular joint. On February 8, 2011 Dr. Landry performed a left shoulder debridement of the rotator cuff and subacromial decompression. Subsequently, Employee developed adhesive capsulitis.

Employee was evaluated by Dr. Emanuel on August 18, 2011. Dr. Emanuel diagnosed Employee with left shoulder arthritis, subacromial bursitis, impingement syndrome and frozen shoulder. He opined that the injury of July 15, 2009 was the prevailing factor in causing the

Employee: Janet K. Scott

Injury No. 09-108211

patient's shoulder complaints and he recommended further surgery. On May 4, 2012, Dr. Emanuel performed an arthroscopic limited debridement of the glenohumeral joint and posterior glenoid labrum, subacromial decompression and distal clavicle resection. Employee's postoperative diagnosis was subacromial bursitis with a spur, torn cartilaginous homologue of the AC joint and degenerative arthritic changes. Post-operatively, Employee underwent physical therapy. Dr. Emanuel released her at maximum medical improvement on September 10, 2012 with a full duty release.

Current Complaints

Employee testified that she deals with a lot of pain. She takes Tylenol because she cannot take anything else. Employee testified that she has to wear front closure bras because she cannot put her arm behind her back. She testified that she cannot really hold anything. She cannot hold her grandchildren because she is scared of dropping them. She testified that she sleeps with a pillow under her left shoulder. She testified to having a lot of neck pain because of the way she holds her shoulder. If she tries to use her left arm, pain goes up her arm into her neck and down her back. Any activity with involving the upper left side of her body makes her feel like she will snap in two because of the pain. She testified she has learned to overcompensate by using her right side instead of her left side.

She testified she can stand for approximately 10 minutes before her back hurts. She stands on her right foot and holds the left foot up. She can sit 15-20 minutes before her shoulder blades and neck start hurting. Then she must get up to walk around. She must alternate sitting and standing because standing too long causes back pain and leg cramping. She does not sleep well and must reposition herself often. She testified that she must use her right hand to support her left arm when raising it. Raising her left arm causes excruciating pain in her left shoulder and neck.

Medical Report of Dr. Michael Chabot

Dr. Chabot evaluated Employee on July 27, 2009 at the request of Employer-Insurer. Pages 3 and 4 of his report are blank. Dr. Chabot took a history that included Employee's description of three separate work accidents. The first work accident allegedly occurred in January of 2007 and resulted in injury to her left foot. The second work accident on February 12, 2007 allegedly resulted in injury to her head, neck and back. The third accident allegedly occurred in July of 2007 and involved a spider bite to her breast and development of a staph infection. Employee complained of low back pain, numbness and paresthesia in the right thigh for six months, and head and neck aches and pains. After reviewing Employee's medical records and performing a physical exam, Dr. Chabot's impression was that Employee had a history of cranial/cervical contusion and back pain. He opined that there was insufficient documentation to indicate whether her spider bite occurred at work. He further opined that she reached maximum medical improvement regarding her February 12, 2007 back/neck injury on or about March 20, 2007 and that the accident was not the prevailing factor in causing her current lumbar/cervical complaints. Instead he attributed her complaints to chronic degenerative conditions. He opined that she sustained no permanent partial disability associated with contusion injuries to her neck, shoulder and low back as a result of the accident.

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Employee: Janet K. Scott

Injury No. 09-108211

Medical reports of Dr. James Palen

Dr. Palen evaluated Employee at the request of her attorney on February 10, 2010 regarding her prior work accidents of January 25, 2007 (left foot), February 12, 2007 (head, neck), and July 30, 2007 (spider bite to left breast). Dr. Palen noted in his report that Employee had ongoing complaints of left foot pain that resulted in walking with a limp, left elbow and shoulder pain as a result of a 2009 fall at work, limited range of cervical motion, daily headaches, blurry vision, and low back pain. He opined that she had reached maximum medical improvement for all three accidents and did not recommend further treatment. He assigned permanent partial disability ratings of 5% of the left foot and 5% of the person as a whole referable to her head and neck. He did not assign a permanent partial disability rating referable to the spider bite.

Dr. Palen evaluated Employee a second time on April 23, 2013 pertaining to her accident of July 15, 2009. Dr. Palen opined that Employee was at maximum medical improvement and he provided permanent partial disability ratings of 25% of the left shoulder referable to the July 15, 2009 accident.

Medical Report and Testimony of Dr. Raymond Cohen

Employee was evaluated by Dr. Cohen at the request of Employee's attorney on August 8, 2016 for purposes of an Independent Medical Evaluation. Dr. Cohen took a history from Employee and reviewed her medical records. Employee reported that she continued to have problems with her left shoulder as a result of the July 15, 2009 accident. Specifically, she reported:

that she needs help getting dressed as she cannot lift her left arm. If she forces the left arm, she has severe pain in the left shoulder joint. She has difficulty bringing the left arm back behind her. Regarding her clothes, it is difficult for her to put on or take off her bra, T-shirt, or blouse. If the clothes get tangles up, she will have to have her husband help her. She has weakness in her left shoulder. She tries to use bands for her left shoulder. She is limited on most lifting. She doesn't hold up her grandchildren because of the left shoulder. She can't take out the trash because of the left shoulder. She has a front loader on her washing machine and has to sit on the floor because of left shoulder pain and loss of motion. She generally uses her right upper extremity for most activities. She has to use her right arm to bring the left arm up.

1 Dr. Palen also evaluated Employee's March 16, 2010 left ankle injury. Because the left ankle injury occurred subsequent to the July 15, 2009 left shoulder injury, this Award does not include findings of fact referable to the March 16, 2010 accident.

2 Dr. Cohen also evaluated Employee's March 16, 2010 left ankle injury. Because the left ankle injury occurred subsequent to the July 15, 2009 left shoulder injury, this Award does not include findings of fact referable to the March 16, 2010 accident.

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Employee: Janet K. Scott

Injury No. 09-108211

Dr. Cohen opined that the July 15, 2009 accident was the prevailing factor in causing a left shoulder rotator cuff partial tear and acromioclavicular arthritis that necessitated two surgeries and a probable left shoulder adhesive capsulitis.

Employee also reported difficulty with the right shoulder since 2011 including deep aching pain and weakness.

Dr. Cohen documented a history of pre-existing conditions and disabilities that included a 1992 low back injury, chronic lumbar strain/sprain, a 2007 left heel plantar fasciitis and Morton's neuroma to the second interspace of the left foot, chronic cervical strain/sprain and aggravation of cervical spondylosis secondary to a December 12, 2007 fall at work, and a July 30, 2007 spider bite to the chest requiring multiple courses of antibiotics.

Dr. Cohen opined that the employee had reached maximum medical improvement for her work injuries. He agreed with the previously adjudicated disability of 25% permanent partial disability of the left ankle and 20% permanent partial disability of the left shoulder. 3 He rated her pre-existing conditions or disabilities at 12.5% of the whole person at the lumbar spine level, 5% of the whole person at the cervical spine level, and 3.5% at the left ankle. Referable to the left shoulder, he recommended restrictions of no repetitive use with the left arm, no lifting greater than 5 pounds overhead, and no pushing or pulling with the left arm.

Employee filed a Form WC-21 Claim for Compensation against Employer on March 24, 2010 alleging that on approximately July 15, 2009 she injured her left shoulder. She described her injury as follows: "Concrete broke and caved in were [sic] she was working and she fell hurting her left shoulder. She has received no medical treatment for this injury although she has requested the same." The Second Injury Fund was not named as a party on this claim.

Employee filed an Amended Form WC-21 Claim for Compensation on April 18, 2016 that was identical to the first Claim except that she crossed out the date stamp from the first claim, crossed out the date on Box 17 and added a new date, and added the Second Injury Fund as a party. Employee listed pre-existing disabilities including a 2007 spider bite, whiplash and concussion, a 2007 heart condition and a 2007 neuroma on the right foot.

Employee filed a Request for Pre-Hearing for Injury Number 09-108211 on or about December 20, 2011 stating the reason for the Pre-Hearing was "Employee needs medical treatment." Box number 8 is marked "Yes" indicating that the Second Injury Fund is involved. The fax transmission report reflects that the requests were faxed to a number corresponding to the fax number for the Division of Workers' Compensation-Cape Girardeau office on December

3 It should be noted that Stipulation for Compromise Settlement for 09-108211 reflects a settlement of 25% of the left shoulder instead of 20% as stated by Dr. Cohen in his report. Also, Stipulation for Compromise Settlement 10-020815 reflects a settlement for 20% of the left ankle instead of 25% as stated by Dr. Cohen in his report.

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Employee: Janet K. Scott

Injury No. 09-108211

19, 2011. The Certificate of Service reflects copies were sent to all attorneys and/or parties of record on December 20, 2011.

The attorney for Employer-Insurer filed Requests for Mediation for Injury Number 09-108211 dated February 15, 2013, June 26, 2013, April 25, 2014, and July 7, 2014. Each request identified the reason for the request as "Judicial input." Each request marked Box #8 "Yes" indicating that the Second Injury Fund is involved. The Certificate of Service on each of these requests indicate that copies were sent to all attorneys/parties of record.

Employee filed a Request for Mediation for Injury Number 09-108211 dated July 24, 2015 and January 20, 2016. The reason indicated for the request was to discuss settlement. Box #8 is marked "Yes" on each request indicating the Second Injury Fund is involved. The Certificate of Service on each request indicates copies of the requests were sent to attorneys/parties of record via fax. The fax confirmation sheet reflects the Requests were faxed to a number corresponding to the Division of Workers Compensation-Cape Girardeau office and the Missouri Attorney General-Cape Girardeau office.

Stipulations for Compromise Settlement

Employee settled Injury Number 92-135729 for date of accident October 19, 1992 against SEMO Community Services for 12.5% of the body at the level of the thoracic and lumbar and cervical spine.

---

4 The fax cover sheet indicates that the Request for Pre-Hearing was faxed on December 19, 2011, however the Certificate of Service is dated December 20, 2011. (See Exhibit 22) The copy of the Request for Pre-Hearing Conference in the Division of Workers' Compensation file, for which judicial notice was taken, is not file-stamped. It is unclear on which date the Request for Pre-Hearing request was actually filed with the Division of Workers' Compensation. As a practical matter, whether the Request for Pre-Hearing was filed on December 19, 2011 or on December 20, 2011 does not affect the outcome of this Award.

5 The file maintained by the Division of Workers' Compensation, for which judicial notice was taken, reflects this Request for Mediation dated February 15, 2013 was file-stamped as received by the Division of Workers' Compensation on February 19, 2013.

6 The file maintained by the Division of Workers' Compensation, for which judicial notice was taken, reflects this Request for Mediation dated June 26, 2013 was file-stamped as received by the Division of Workers' Compensation on June 27, 2013.

7 The file maintained by the Division of Workers' Compensation, for which judicial notice was taken, reflects this Request for Mediation dated April 25, 2014 was file-stamped as received by the Division of Workers' Compensation on April 28, 2014.

8 The file maintained by the Division of Workers' Compensation, for which judicial notice was taken, reflects this Request for Mediation dated July 7, 2014 was file-stamped as received by the Division of Workers' Compensation on July 9, 2014.

9 The file maintained by the Division of Workers' Compensation, for which judicial notice was taken, reflects this Request for Mediation dated July 24, 2015 was file-stamped as received by the Division of Workers' Compensation on July 27, 2015.

10 The file maintained by the Division of Workers' Compensation, for which judicial notice was taken, reflects this Request for Mediation dated January 20, 2016 was file-stamped as received by the Division of Workers' Compensation on January 20, 2016.

Page 9

Employee: Janet K. Scott

Injury No. 09-108211

Employee settled Injury Number 07-087622 for date of accident "Alleged 7/30/2007" against Siegel Robert Automotive for $1,500.00 based 1.0% of the body as a whole "and resolution of all other issues."

Employee settled Injury Number 07-087621 for date of accident February 12, 2007 against Siegel Robert Automotive for 5% of the body as a whole referable to the neck.

Employee settled Injury Number 07-087620 for date of accident January 25, 2007 against Siegel Robert Automotive for 2.5% of the left foot at the ankle.

Employee settled Injury Number 09-108211 for date of accident July 15, 2009 against SRG Global for 25% of the left shoulder. The settlement was approved by the Administrative Law Judge on April 27, 2016.

Employee settled Injury Number 10-020815 for date of accident March 16, 2010 against SRG Global for 20% of the left ankle. The settlement was approved by the Administrative Law Judge on April 27, 2016.

RULINGS OF LAW:

1. Whether Employee's claim against the Second Injury Fund was filed within the time allowed by law.

It is disputed that the claim against the Second Injury Fund was filed within the time allowed by law. Section 287.430 RSMo provides in part "A claim against the second injury fund shall be filed within two years after the date of injury or within one year after a claim is filed against an employer or insurer pursuant to his chapter, whichever is later ... In all other respects the limitations shall be governed by the law of civil actions ... The statute of limitations contained in this section is one of extinction and not of repose."

Employee's Amended Form WC-21 Claim for Compensation adding the Second Injury Fund as a party was filed on April 18, 2016, more than two years after her injury date of July 15, 2009 and more than one year after her Form WC-21 Claim for Compensation was filed against the employer on March 24, 2010. An amended claim can extend the statute of limitations against the Second Injury Fund if it is a bona fide claim that amends or supplements the original claim against the employer, however, "[a]mended claims which create a new or distinct claim are not saved from the statute of limitations under Ford Spencer v. Sac Osage Elec. Co-op, Inc., 302 S.W.3d 792, 804 (Mo. App. W.D. 2010)." Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund, No. ED 106949, 2019 WL 1120097 at *3; See also Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717 (Mo. 2004). Employee's amended claim did not modify the original claim against Employer and therefore did not relate back to the original filing. The only modification to the claim was to add the Second Injury Fund as a party. Employee's claim against the Second Injury Fund was therefore untimely.

Page 10

Employee: Janet K. Scott

Injury No. 09-108211

Employee asserts four arguments in support of her position that her claim was filed within the time allowed by law. As I understand Employee's first argument, she argues that the current judicial interpretation of Section 287.430 RSMo (specifically the holdings of *Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund*, No. ED 106949, 2019 WL 1120097 and *Treasurer of the State of Missouri-Custodian of the 2nd Injury Fund v. Couch*, 478 S.W.3d 417 (W.D. Ct. App. 2015)) and the position of the Second Injury Fund violate "the right to counsel and due process of law." As Employee recognized in her brief, the Division of Workers' Compensation is without jurisdiction to determine the constitutionality of a Missouri Statute, and therefore I will not make a ruling on this issue.

As I understand Employee's second argument, she argues that the holdings in *Naeter* and *Couch* should not apply retroactively and specifically should not apply to this case because to do so would impose a hardship or injustice. In *Couch*, the Western District held that the filing of Claimant's settlement stipulations with Employer did not constitute a claim that would restart time period for Claimant to file a new claim against Second Injury Fund. *Treasurer of the State of Missouri-Custodian of the 2nd Injury Fund v. Couch*, 478 S.W.3d 417 (W.D. Ct. App. 2015). In *Naeter*, the Eastern District agreed with the Western District and held that 1. An employee's "amended claim adding the second injury fund to the claim was not a valid claim against employer that would trigger the running of the one-year statute of limitations for claim against the second injury fund, where no changes or additions were made to the employer portion of claim, and claimant only added permanent total disability regarding pre-existing Meniere's disease to the portion of the form adding the second injury fund" and 2. A "[s]ettlement stipulation between workers' compensation claimant and employer was not a claim against employer that would trigger the running of the one-year statute of limitations for claim against the second injury fund, where claimant filed formal claims before a settlement agreement was reached." *Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund*, No. ED 106949, 2019 WL 1120097. I find no merit in Employee's argument. "Our Supreme Court has recognized 'the general rule of retroactive effect of changes wrought by its decisions.' *Sumner v. Sumners*, 701 S.W.2d 720, 723 (Mo. Banc 1985). But the Court has also recognized 'its authority to declare whether such decisions are retroactive or prospective.' *Id.*" *Johnson v. St. John's Mercy Medical Center*, 812 S.W.2d 845 (1991). The Courts in *Naeter* and *Couch* were silent as to whether their decisions should be applied retroactively or prospectively. The Supreme Court "makes two exceptions to the general rule of retroactivity. The first pertains to procedural as opposed to substantive law, and the second 'turns on the issue of fundamental fairness.'" *Id.* citing *Sumners v. Sumners*, 701 S.W.2d at 724. "Procedural changes are given prospective effect only." *Id.* "The limitation in § 287.430 is substantive and jurisdictional rather than procedural and waivable." *Marston v. Juvenile Justice Center of the 13th Judicial Circuit*, 88 S.W.3d 534, 538 (Ct. App. W.D. 2002). Therefore, the first exception is not applicable to this case.

The second exception, fundamental fairness, is also not applicable. The Court has adopted the following three factor balancing test to determine whether a decision should be applied prospectively only: "1. Does the decision establish a new principle of law; 2. Will the purpose and effect of the new rule be enhanced or retarded by retroactive application; 3. What hardship will result to parties who relied upon the old rule if the new rule is applied

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Employee: Janet K. Scott

Injury No. 09-108211

retroactively." *Johnson v. St. John's Mercy Medical Center*, 812 S.W.2d at 852 citing *Sumners v. Sumners*, 701 S.W.2d at 734. First, neither *Naeter* nor *Couch* established a new principle of law. Neither decision overruled prior case law. The Courts in both cases sought to interpret the plain and unambiguous meaning of Section 287.430 RSMo. It is unnecessary to address the second and third factors since Section 287.430 RSMo has not changed and there is no new principle of law. However, it is worth noting that statutes of limitations are "legislative enactments to limit the authority of courts to hear time-barred claims even in cases of hardship." *Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund*, No. ED 106949 at *5. The holdings in *Naeter* and *Couch* are retroactive in application and this Court gives them deference. I find that in accordance with the holdings in *Naeter* and *Couch*, Employee's stipulation for settlement with Employer was not an amended claim and did not extend the time period for filing a claim against the Second Injury Fund. Further, I find that Employee's amended claim adding the Second Injury Fund to the claim was not a valid claim against Employer that would trigger the running of the one-year statute of limitations for claim against the Second Injury Fund, because no changes or additions were made to the employer portion of claim.

As I understand Employee's third argument, she argues that her Request for Pre-Hearing that was filed with the Division of Workers' Compensation on December 20, 2011 should be treated as an amended claim against the employer thus extending the filing period against the Second Injury Fund. Chapter 287 does not define the term "claim" or "amended claim." The Missouri Supreme Court addressed the meaning of the word "claim" in *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714 (Mo. Ct. 2004). The Missouri Supreme Court pointed out that Section 287.430 refers to "a claim" which would include any timely claim. The Court also held that if an amended claim is filed that reports more "parts of body injured" and is not amended solely to extend the statute of limitations, then a cause of action to receive benefits from the Second Injury Fund begins to run from the date of the amended claim. In *Naeter v. Treasurer of Missouri as Custodian of Second Injury Fund*, No. ED 106949, 2019 WL 1120097, at *3 (Mo. Ct. App. Mar. 12, 2019), transfer denied (April 16, 2019) the Eastern District stated, "With regard to workers' compensation claims, the amendment must address the same occurrence or term of employment and in some way add to the original claim by adding some cause, effect, or injury relating back to the original claim." Employee argues that the original Form WC-21 did not list medical treatment and her Request for Pre-Hearing, in effect, amended her Form WC-21 when she stated the reason for requesting the Pre-Hearing was "Employee needs more treatment." I do not find this argument persuasive. In fact, Employee's WC-Form 21 filed on March 24, 2010 states "She has received no medical treatment for this injury although she has requested the same." I find that Employee's Request for Pre-Hearing Conference did not add any cause, effect, or injury relating back to the original claim. Even if the Request for Pre-Hearing was considered an amended claim, it would extend the statute of limitations for filing a claim against the Second Injury Fund to December 20, 2012. Employee's claim against the Second Injury Fund was filed on April 18, 2016 and would therefore still be untimely. I find the Request for Pre-Hearing filed on or about December 20, 2011 is not an

11 It should be noted that Employee's Stipulation for Compromise Settlement was filed with the Division of Workers' Compensation on April 27, 2016, nine days after she filed her amended claim for Compensation naming the Second Injury Fund as a party. Therefore, under the facts of this case, the Stipulation could not have served to extend the statute of limitations for filing against the Second Injury Fund.

Page 12

**Injury No. 09-108211**

amended claim and did not serve to extend the statute of limitations for purposes of filing a claim against the Second Injury Fund.

As I understand Employee's fourth argument, she argues that her Request for Pre-Hearing Conference dated December 20, 2011 as well as the various Requests for Mediation filed in this case, should be considered a claim (or claims) against the Second Injury Fund because the box stating "Second Injury Fund Involved" was marked on each of these forms with an "x." I find this argument has no merit. 8 CSR 50-2-2.010 (7) provides "A claim against the Second Injury Fund must be asserted affirmatively by the claimant and cannot be made by any other party to the claim, on motion or otherwise. Naming the state treasurer as a party is not, in itself, sufficient to make a claim against the fund. Injuries which are claimed to create fund liability must be specifically set forth in the Claim for Compensation." I find that the Requests for Mediation filed by the employer's attorney are not claims against the Second Injury Fund because the employer does not have standing to file a claim against the Second Injury Fund. I further find that the Request for Pre-Hearing and Request for Mediation filings submitted by Employee are not claims against the Second Injury Fund because they do not set forth the injuries claimed to create fund liability and do not put the Second Injury Fund on notice of a claim for compensation being filed against them. I find that the filings identified in Exhibit 22 are not claims against the Second Injury Fund.

I find that the claim for compensation against the Second Injury Fund was not filed within two (2) years after the date of the alleged injury or within one (1) year after a claim was filed against the employer-insurer. I find that the Requests for Pre-Hearing Conference and Requests for Mediation filed with the Division of Workers' Compensation as set forth in Exhibit 22 are not claims or amended claims for compensation. Employee's claim against the Second Injury Fund is time-barred. Employee's claim against the Second Injury Fund is denied.

I find the remaining issue moot.

The original hearing was conducted by Administrative Law Judge Amy L. Young on March 27, 2019. The Award [including the findings of fact and rulings of law relating to the issues presented], has been written by Ms. Young based upon the evidence adduced at the hearing and in conformity with the statutory requirements of the Workers' Compensation Law. Due to a change in circumstance, while Ms. Young continues to be employed by the Division, she is unable to sign the Award as an Administrative Law Judge. The Division must proceed with the distribution of the written Award to the parties within the statutorily prescribed timelines, and therefore, I am signing this Award as the Chief Administrative Law Judge of the Cape Girardeau Adjudication Office.

I certify that on **6-18-19** 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 **amplif**

**Lawrence C. Kasten**

Chief Administrative Law Judge

Division of Workers' Compensation

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