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Naeter v. Treasurer of Missouri As Custodian of Second Injury Fund

Court of Appeals of Missouri, Eastern District, Second Division

March 12, 2019

NANCY NAETER Appellant,
v.
TREASURER OF MISSOURI AS CUSTODIAN OF SECOND INJURY FUND, Respondent.

          Appeal from the Labor and Industrial Relations Commission

          PHILIP M. HESS, PRESIDING JUDGE

         Introduction

         Nancy 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.[1] 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[2]. The Labor and Industrial Relations Commission ("Commission") reviewed the case and adopted the decision of the ALJ.

         Employee asserts one point on appeal.[3] 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.

         We 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 stipulation.

         Factual and Procedural Background

         On 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.

         On July 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.[4] 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).

         On 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.

         This timely appeal followed.

         Discussion

         Standard of Review

         On 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 ...


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