Janet Scott v. SRG Global

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 10-020815**

**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

Employee: Janet K. Scott

Injury No. 10-020815

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

Employer: SRG Global (settled)

Additional Party: Second Injury Fund

Insurer: Hartford Insurance Co. (settled)

Appearances: Michael Moroni, attorney for the employee.

Assistant Attorney General Crystal Williams, attorney for the Second Injury Fund.

Hearing Date: March 27, 2019

Checked by: ALY/kg

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? March 16, 2010.
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. 10-020815

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 inspecting parts on an elevated dunnage and when she stepped down off the dunnage she experienced excruciating pain and popping in her left ankle.

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

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

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

1. Compensation paid to date for temporary total disability: None.

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 for temporary total disability, permanent partial disability, and permanent total disability.

1. Method wages computation: By stipulation.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

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Employee: Janet K. Scott

Injury No. 10-020815

On March 27, 2019, the employee, Janet K. Scott (hereafter "Employee"), 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 10-020815, 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 March 16, 2010 the employee was an employee of SRG Global and was working under the Workers' Compensation Act.
3. On March 16, 2010 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, permanent partial disability benefits, and permanent total disability benefits.
6. The employee's injury was medically causally related to the accident.
7. The employer-insurer paid $0.00 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 versus permanent total disability.
3. When the employee reached maximum medical improvement.

The following exhibits were offered and admitted into evidence:

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

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Employee: Janet K. Scott

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 or briefs 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

Employee: Janet K. Scott

Injury No. 10-020815

were young. Employee last worked at SRG Global as an assembler for approximately 25 years. 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.

Left shoulder

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

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Employee: Janet K. Scott

Injury No. 10-020815

shoulder. He opined that the injury of July 15, 2009 was the prevailing factor in causing the 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 post-operative 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.

Accident on March 16, 2010

On March 16, 2010 Employee sustained an injury to her left ankle while working as a "100 percenter." She was inspecting Toyota Tacoma grills and this required her to prepare and package parts on an elevated dunnage and when she stepped down off the dunnage she experienced excruciating pain and popping in her left ankle. She continued working, but her left ankle became swollen. She had an already scheduled an appointment with Dr. Protzel for complaints of pain in both her feet and ankles. Employee testified that the appointment was for a bone spur in the right foot. This is contradicted by the medical records that reflect she was diagnosed with a bone spur on the left foot on February 17, 2010. Employee told Dr. Protzel about her work injury of March 16, 2010 and she was diagnosed with an avulsion fracture of the distal tibia. He fitted her with a foot orthotic.

By May 5, 2010 the avulsion fracture had resolved. At that time, Dr. Protzel discussed proceeding with surgical treatment to address pre-existing neuromas in her intermetatarsal spaces. Employee subsequently underwent a decompression of the neuroma of the left second and third interspace on May 14, 2010 and a decompression of the neuroma of the right second and third interspace on June 11, 2010.

Employee was evaluated by Dr. Gary Schmidt for purposes of an Independent Medical Evaluation on December 12, 2011. She reported that her bilateral feet were still painful, aching, and cold with numbness and sensitivity in her toes. After taking a history, reviewing medical records and performing a physical exam of her left foot and ankle, Dr. Schmidt diagnosed Employee as having subluxation of the left peroneal tendon. He opined that her work activities on March 16, 2010 were the prevailing factor in causing the diagnosis and he recommended an MRI. An MRI was performed and showed findings consistent with subluxation and dislocation of the peroneal tendons. He performed a peroneus longus brevis transfer on November 14, 2012 with a post-operative diagnosis of peroneus longus rupture. Dr. Schmidt released Employee at maximum medical improvement on January 28, 2013 to full duty. He assigned a rating of 4% disability at the 155 week level of the left ankle and noted that she healed with no evidence of swelling, no subluxation or instability.

Employee sought evaluation on her own with Dr. Jeffrey Appleman on December 10, 2014 for complaints of generalized left foot and ankle pain. She also complained of bilateral symptoms in her metatarsals and bilateral ankles as well as a recent development of heel pain. Dr. Appleman diagnosed plantar fasciitis, peripheral neuropathy and gave her a prescription for compression stockings to address the edema and he prescribed Neurontin.

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Employee: Janet K. Scott

Injury No. 10-020815

Employee did not return to work for SRG Global after her March 16, 2010 accident. She testified that she was terminated approximately six months after her March 16, 2010 accident.

**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 that she cannot tolerate the pressure of wearing socks and shoes on her left foot. She asked to remove her left shoe at the beginning of the Hearing and attended the duration of Hearing without a shoe or socks on the left foot. She testified that her left foot swells and stays cold. She wears "old ugly house shoes" to Walmart. Sometimes she goes to the store barefoot. She testified that the store employees understand she has an injury and they don't say anything about her lack of shoes. At home, she sits in a recliner and props her foot to keep the swelling down. She testified she cannot step backward on her left foot because it causes severe pain. Sometimes her left foot goes numb and causes her to fall. She testified to having problems with her knee and movement of her leg causes excruciating pain. She did not specify which knee or leg. She testified that she must pay attention because she cannot step with her left foot first and instead must first step with her right foot. She testified that she walks with a limp.

She also has problems with her right foot that began before she injured her left foot at work.

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.

She testified that she has not worked since her 2010 work accident. She now receives Social Security disability benefits. She cannot perform yard work and relies on her daughter and grandson to do it for her. Another daughter performs her household chores including dusting, sweeping, mopping, and laundry. Employee can no longer cook big meals because of problems with her feet, shoulder and back and instead she and her husband eat "tv dinners." Employee testified that if she had never injured her back and her left ankle was her only injury, she thought she could still work if allowed to prop her foot up and perform her job without a shoe.

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Employee: Janet K. Scott

Injury No. 10-020815

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.

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 accidents of July 15, 2009 and March 16, 2010. Dr. Palen opined that Employee was at maximum medical improvement and he provided permanent partial disability ratings of 25% of the left shoulder and 25% of the left ankle. He further opined that "the combination of Ms. Scott's disabilities creates a substantially greater disability than the simple sum or total of each separate injury and a loading factor should be added."

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:

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Employee: Janet K. Scott

Injury No. 10-020815

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.

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.

Regarding the accident of March 16, 2010, Dr. Cohen opined the accident was the prevailing factor in causing Employee's neuroma of the left second and third interspace that necessitated surgery as well as the peroneus longus rupture that necessitated a peroneus longus brevis transfer. He also opined the accident caused a probable post-traumatic arthritis of the left ankle. Employee related because of ongoing left foot and ankle pain, she cannot do a lot of walking and has to use a cart at Walmart. She reported she can stand long enough to wash 10-15 dishes in the sink before she must sit down because of her foot. She reported she can sit for 30 minutes to an hour before she must change positions. She described excruciating left foot and ankle pain along the outside of her foot/ankle. She avoids uneven surfaces and has difficulty with inclines and finding shoes to wear. She complained of ongoing swelling.

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. 1 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. He further opined

1 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. 10-020815

that the "pre-existing conditions or disabilities, including the 7-15-09 work-related injury, combine synergistically with the primary work-related injury of 3-16-10 to create a greater overall disability than their simple sum. Her pre-existing conditions or disabilities were a hindrance or obstacle to her employment or re-employment. Due to the combination of her pre-existing conditions or disabilities with the primary work related injury of 3-16-10, it is my opinion Ms. Scott is permanently and totally disabled and not capable of gainful employment in today's open labor market." He recommended restrictions referable to the left ankle of no climbing, jumping, excessive walking or pushing and to avoid ladder work. 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 was evaluated by Susan Shea on February 14, 2014 for purposes of a vocational assessment. After taking a history from Employee and reviewing Employee's medical records, she stated "it is my opinion that Ms. Scott is not capable of performing any work as typically performed in the open labor market." Her opinion was based on Employee's report of back pain, that she's been working with headaches since 2007, that she underwent shoulder surgery and was subsequently terminated from her job, that she had surgeries on her bilateral feet and afterward was no longer able to perform her job, that she cannot sit long enough to perform sedentary work due to pain and dysfunction, that she has pain and dysfunction in her left upper extremity that prevents her from performing a full range of work at any level, that she has no transferable skills, that her previous work was unskilled to semi-skilled, that she has a less than high school education, her prior 2007 left ankle injury, that she cannot wear regular shoes, and that she has been approved for Social Security disability. She further opined that "It is my opinion that this lack of ability to work is a result of a combination of the injuries of 2009 and of 2010 and the result of prior injuries."

Employee filed a Form WC-21 Claim for Compensation against Employer on March 24, 2010 alleging that on March 16, 2010 she injured her left ankle. She described her injury as follows, "The employee was packing parts in a elevated dunnage. She stepped back off the dunnage and felt her ankle twist. She continued to work that night and the next day she was dianeses [sic] with a broken ankle and torn tendons off of her ankle bones. The employer has denied that this is a work-related accident." Under "Section 10. ADDITIONAL STATEMENTS" Employee typed "Employee needs medical treatment." The Second Injury Fund was not named as a party on this claim.

Employee filed an Amended Form WC-21 on April 18, 2016 that was identical to the first claim except that "Employee needs medical treatment" was crossed out, the date stamp from the first claim was crossed out, the date listed on Box 17 was crossed out and a new date was added, and the employee filed a claim against the Second Injury Fund listing pre-existing disabilities including a 2007 spider bite, whiplash and concussion, 2007 heart condition, 2007 neuroma on right foot, 2009 left shoulder injury, and pre-existing nervous condition.

Page 10

MNKOI 0000423667

Employee: Janet K. Scott

Injury No. 10-020815

Requests for Pre-Hearings and Requests for Mediations filed with the Division of Workers' Compensation

Employee filed a Request for Pre-Hearing for Injury Number 10-020815 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 19, 2011.² 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 10-020815 dated February 15, 2013³, June 26, 2013⁴, April 25, 2014⁵, and July 7, 2014⁶. 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 10-020815 dated July 24, 2015⁷ and January 20, 2016⁸. 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

² 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.

³ 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.

⁴ 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.

⁵ 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.

⁶ 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

⁷ 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.

⁸ 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.

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Employee: Janet K. Scott

Injury No. 10-020815

to a number corresponding to the Division of Workers Compensation-Cape Girardeau office and the Missouri Attorney General-Cape Girardeau office.

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.

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.

Employee applied for Social Security disability benefits and a Hearing was held on November 19, 2010. Employee was awarded Social Security disability benefits on July 19, 2012. It was determined her alleged onset of disability was March 17, 2010.

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."

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Employee: Janet K. Scott

Injury No. 10-020815

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 March 16, 2010 and more than one year after her Form WC-21 Claim for Compensation was filed against 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). 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 her Amended Form WC-21 Claim for Compensation (Injury No. 10-020815) against the Second Injury Fund "deleted the request for medical treatment so it was significantly modified." I find that deleting the sentence "Employee needs medical treatment" from the original claim did not add to the original claim against Employer in any way 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.

Employee asserts three additional arguments in support of her position that her claim was filed within the time allowed by law. As I understand the 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 that the filing of Claimant's settlement stipulations with Employer did not constitute a claim that would restart time period for Claimant to file new claim against Second Injury Fund. Treasurer of the State of

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Employee: Janet K. Scott

Injury No. 10-020815

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 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 the 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, 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

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.

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Employee: Janet K. Scott

Injury No. 10-020815

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.

As I understand Employee's third argument, she argues that her Request for Pre-Hearing Conference filed with the Division of Workers' Compensation on December 20, 2011 as well as the various Requests for Mediation filed in this case, should be considered a claim 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 Employer's attorney are not claims against the Second Injury Fund because the employer has no standing to file a claim against the 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 or 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 issues 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 __________________________

Lawrence C. Kasten

Chief Administrative Law Judge

Division of Workers' Compensation

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