Court of Appeals of Missouri, Eastern District, Second Division
from the Labor and Industrial Relations Commission
M. HESS, PRESIDING JUDGE
Naeter ("Employee") filed an original claim for
compensation against her employer Buzzi Unicem
("Employer") for bilateral hearing loss under the
Workers' Compensation Law of the State of Missouri.
Employee filed this claim on October 17, 2006 regarding her
employment with Employer from June 20, 1984 to September 9,
2005. Employee filed her first amended claim adding Tinnitus
and Meniere's disease to her hearing loss claim against
the Employer. In her second amended claim, Employee
named the Second Injury Fund ("SIF") as a party to
the workers' compensation proceedings. Prior to a trial,
the claim against Employer was settled. The Administrative
Law Judge ("ALJ") denied the claim against the SIF
as time-barred by the statute of limitations under §
287.430. The Labor and Industrial Relations
Commission ("Commission") reviewed the case and
adopted the decision of the ALJ.
asserts one point on appeal. Employee claims the Commission
erred denying Employee's claim as time-barred because the
statute of limitations for filing the SIF claim should be
calculated from the date of Employee's second amended
claim or the date of the stipulation of compromise settlement
between Employee and Employer. The SIF statute of limitations
can be calculated from the date of "a claim"
against an employer. Employee argues the second amended claim
is "a claim" against Employer because: Employer was
a real party in interest, subject to liability arising out of
the claim; the Meniere's disease in the second amended
claim was both an occupational disease against the Employer
and pre-existing disability against the SIF; and the
SIF's liability for pre-existing disability and for
permanent total disability were added to the claim. Employee
also argues settlement stipulations like the one in this case
have been used as claims to calculate the SIF limitations
period in similar cases.
disagree with Employee. The second amended claim is not
"a claim" against Employer. The second amended
claim raised no new issue regarding Employer's liability.
The second amended claim only added the issue of the SIF
liability. The second amended claim does not relate back to
the original claim or the first amended claim so it is not a
valid, timely filed claim concerning the Employer.
Furthermore, settlement stipulations with an employer are not
"a claim" for calculating the SIF statute of
limitations unless no claim was filed before the settlement
and Procedural Background
October 17, 2006, Employee filed a claim against Employer for
occupational hearing loss/injury to ears caused by "long
term exposure to industrial noise beginning June 20, 1984
th[ro]ugh Sept. 9, 2005 while at work for [E]mployer".
On December 3, 2010, Employee filed a first amended claim
against Employer to include Tinnitus and Meniere's
disease under the "PART(S) OF BODY INJURED"
section. On December 16, 2011, Employee filed a second
amended claim adding the SIF. Employee added permanent total
disability regarding preexisting Meniere's disease to the
SIF claim portion of the form. No changes or additions were
made to the Employer portion of the claim. On October 23,
2012, Employer and Employee entered into a stipulation for
compromise settlement resolving the claim against Employer.
10, 2017, the ALJ held a hearing to resolve disputed issues
between Employee and the SIF including the "[s]tatute of
limitations regarding the Second Injury Fund". The ALJ
made specific findings of fact deciding the claim against the
SIF was time-barred by the statute of limitations under
§ 287.430. The ALJ specifically found: The first amended
claim supplemented the body parts affected so it was "a
claim" against Employer. The second amended claim did not
supplement or amend the first amended claim so it was not
"a claim" against Employer. The claim against the
SIF was filed on December 16, 2011, more than two years after
the date of injury (September 9, 2005) and more than one year
after the first amended claim was filed against Employer
(December 3, 2010).
October 30, 2017, Employee filed an application for review
with the Commission claiming the ALJ was "incorrect in
that he misapplied the statute of limitations…"
On November 17, 2017, the SIF filed an answer and a motion to
dismiss the application for review. On January 16, 2018, the
Commission declined to dismiss Employee's application for
review. On June 15, 2018, the Commission issued its final
award denying compensation from the SIF. The award and
decision of the ALJ was "attached and incorporated"
by reference of the Commission without modification.
timely appeal followed.
appeal from the Commission's award in a workers'
compensation case, we may modify, reverse, remand for
rehearing, or set aside the Commission's award ...