In the
Missouri Court of Appeals
Western District
CLIFFORD AUSTIN, )
)
Appellant, ) WD82778
)
v. ) OPINION FILED: March 10, 2020
)
AM MECHANICAL SERVICES, )
)
Respondent, )
)
TREASURER OF THE STATE OF )
MISSOURI - CUSTODIAN OF THE )
SECOND INJURY FUND, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
and Gary D. Witt, Judge
Clifford Austin ("Austin") appeals from a final order entered by the Labor and
Industrial Relations Commission ("Commission") denying his workers' compensation
claim which sought temporary total and permanent partial disability benefits from AM
Mechanical Services ("Employer") and permanent total disability benefits from the Second
Injury Fund ("Fund"). The Commission concluded that Austin's workers' compensation
claim was barred because it was filed outside of the three-year statute of limitations
described in section 287.430.1 Because the Commission erroneously declared and applied
the law, we reverse and remand for further proceedings consistent with this opinion.
Factual and Procedural Background2
In November 2010, Austin began working for Employer as a sales and service
manager. Austin was offered and accepted the job with Employer in a telephone
conversation which occurred while Austin was at his home in Missouri. Austin worked,
however, at Employer's warehouse in Olathe, Kansas. On March 10, 2011, Austin was
injured while climbing a ladder to retrieve a part located on an upper shelf.
Employer's workers' compensation insurer, AMCO Insurance Company
("AMCO"), paid Austin temporary total disability benefits at the rate of $545 per week for
93 weeks from March 11, 2011 through December 21, 2012. This was the applicable
weekly wage rate for temporary total disability benefits in Kansas.
On February 28, 2013, a Kansas administrative law judge approved a settlement
agreement between Austin, Employer, and AMCO. The settlement agreement required
AMCO to pay Austin the lump sum of $49,315 for permanent partial disability benefits.
The settlement agreement purportedly provided that Austin was "closing out" all injuries
and all claims arising out of his March 10, 2011 workplace accident in all jurisdictions.
1
All statutory references are to RSMo 2000 as supplemented through the date of Austin's injury on
March 10, 2011, unless otherwise indicated.
2
"When reviewing the evidence on the record, we do not view the facts in the light most favorable to the
award, nor do we make all reasonable inferences in favor of the award. Rather, we view the facts neutrally."
Tombaugh v. SIF, 347 S.W.3d 670, 674 (Mo. App. W.D. 2011).
2
On September 23, 2015, Austin filed a workers' compensation claim with the
Missouri Division of Workers' Compensation ("Division") arising out of the March 10,
2011 workplace accident. Austin's claim sought additional compensation from Employer,
(who was also insured by AMCO in Missouri), in the amount of $11,314.38, representing
the difference between Missouri's weekly wage rate for temporary total disability benefits
of $666.67 and the weekly wage rate authorized in Kansas. Austin's claim also relied on
preexisting disabilities to request an award of permanent total disability benefits from the
Fund.3
Following a hearing, an administrative law judge ("ALJ") denied Austin's claim.
The ALJ found that Austin's claim against Employer was barred by the Kansas workers'
compensation settlement agreement, and by the three-year statute of limitations described
in section 287.430. The ALJ found that Austin's claim against the Fund was not barred by
the Kansas workers' compensation settlement agreement, but was barred by the three-year
statute of limitations described in section 287.430.
Austin appealed the ALJ's determination to the Commission. The Commission
entered its award ("Final Award") affirming the ALJ's determination to deny compensation
to Austin. However, the Commission did so with a supplemental opinion that relied solely
on the statute of limitations described in section 287.430. The Final Award noted that the
3
Section 287.220 establishes the Second Injury Fund. The General Assembly created the Second Injury
Fund in an effort "to encourage the employment of individuals who are already disabled from a preexisting injury,
regardless of the type or cause of that injury." Treasurer of State-Custodian of Second Injury Fund v. Witte, 414
S.W.3d 455, 460 (Mo. banc 2013) (quoting Pierson v. Treasurer of State, 126 S.W.3d 386, 389-90 (Mo. banc
2004)).
3
Commission did "not endorse the other analysis in the [ALJ's] decision as it is not necessary
for the resolution of this matter."
Austin timely appeals.
Standard of Review
Section 287.490.1 controls our review of the Final Award:
The court, on appeal, shall review only questions of law and may modify,
reverse, remand for rehearing, or set aside the award upon any of the
following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant
the making of the award.
We review the findings and award of the Commission rather than the ALJ, "to the extent
that [the Commission's ruling] departs from the ALJ's ruling." Small v. Red Simpson, 484
S.W.3d 341, 344 (Mo. App. W.D. 2015). "To the extent that the Commission affirms and
adopts the ALJ's findings and conclusions, we review the ALJ's findings and conclusions."
Id. While we defer to the Commission's factual findings, "'we review issues of law,
including the Commission's interpretation and application of the law, de novo.'" Nivens v.
Interstate Brands Corp., 585 S.W.3d 825, 831 (Mo. App. W.D. 2019) (quoting Lawrence
v. Treasurer of State-Custodian of Second Injury Fund, 470 S.W.3d 6, 12 (Mo. App. W.D.
2015)).
4
Analysis
The sole issue on appeal is whether the Commission erroneously concluded that
Austin's claims for Missouri workers' compensation benefits against Employer and the
Fund were time-barred pursuant to section 287.430.4
Section 287.110.2 provides that "[t]his chapter shall apply to all injuries received .
. . outside of this state under contract of employment made in this state, unless the contract
of employment in any case shall otherwise provide . . . ." 5 "'Where the applicant accepts
an employment offer over the telephone while he is in Missouri, the employment contract
is deemed to have been made in Missouri.'" Small, 484 S.W.3d at 346 (quoting Liberty v.
Treasurer for State--Custodian of Second Injury Fund, 218 S.W.3d 7, 10 (Mo. App. W.D.
2007)). The ALJ determined that Austin accepted employment with Employer in Missouri
over the telephone. Though the Commission's Final Award did not endorse the ALJ's
"analysis" of any issues beyond the statute of limitations, the Commission did not reject
any of the ALJ's factual findings, many of which were essential to discussion of the statute
4
Austin's Brief also argues that his Missouri workers' compensation claim against Employer and the Fund
could not be lawfully barred, settled, or compromised by the Kansas workers' compensation settlement agreement
because of section 287.390.1, which provides that no agreement to waive rights under Chapter 287, or to settle or
compromise any dispute or claim under Chapter 287, will be valid until approved by a Missouri ALJ or the
Commission. We do not address this issue. We are statutorily limited to review of the Commission's Final Award.
The Final Award did not deny Austin's workers' compensation claim based on the effect of the Kansas settlement
agreement and instead relied solely on the statute of limitations.
5
The ALJ rejected the Fund's argument that Austin was not permitted to file a claim against the Fund,
notwithstanding section 287.110.2, because section 287.220.12 (RSMo 2014) provides that: "No compensation shall
be payable from the second injury fund if the employee files a claim for compensation under the workers'
compensation law of another state with jurisdiction over the employee's injury or accident or occupational disease."
Subsection 12 was added to section 287.220 effective January 1, 2014, and thus after Austin's March 10, 2011
workplace injury. The Fund has not relied on section 287.220.12 on appeal presumably because it recognizes that
this amendment to section 287.220 could "change, redefine, or regulate rights in a manner" that is different from the
version in effect before January 1, 2014, and thus cannot be retroactively applied barring an expression of legislative
intent to the contrary. See, e.g., Eason v. Treasurer v. State, 371 S.W.3d 886, 889 (Mo. App. W.D. 2012).
5
of limitations issue. Accordingly, the Division, as well as the State of Kansas, have
jurisdiction over Austin's March 10, 2011 workplace injury.
Section 287.4306 requires a claim for workers' compensation benefits to be filed
with the Division within two years of the date of injury or the "last payment made under
this chapter on account of the injury[.]" However, the limitations period of two years is
extended to three years from the date of injury or "last payment made under this chapter
on account of the injury" when an employer fails to file a "report of the injury . . . as
required by section 287.380." Section 287.430. Section 287.380 requires an employer or
insurer to file a report with the Division within thirty days of any employee's injury.
Employer and AMCO failed to file a report with the Division within thirty days of
Austin's March 10, 2011 workplace injury. As a result, Austin was required to file his
claim with the Division by the later of three years after the date of his March 10, 2011
injury or the "last payment made under this chapter on account of the injury." Austin's
claim, which was filed on September 23, 2015, was not filed with the Division within three
years of his March 10, 2011 injury. The question, therefore, is whether Austin's claim was
filed within three years of the "last payment made under this chapter on account of
[Austin's] injury."
Austin contends that weekly temporary total disability benefits he was paid through
December 2012, and the lump sum settlement payment he received on February 28, 2013
6
" . . . [N]o proceedings for compensation under this chapter shall be maintained unless a claim is filed with
the division within two years after the date of injury . . ., or the last payment made under this chapter on account of
the injury . . ., except that if the report of the injury . . . is not filed by the employer as required by section 287.380,
the claim for compensation may be filed within three years after the date of injury . . . or last payment made under
this chapter on account of the injury[.]"
6
for permanent partial disability benefits, were payments made by Employer or AMCO
"under this chapter on account of [Austin's] injury." Employer and the Fund disagree.
Resolution of this dispute requires us to determine the meaning of "under this chapter."
This very issue was addressed in Small, where an employee filed a claim for
workers' compensation benefits in Missouri after receiving workers' compensation benefits
in Texas following a Texas workplace injury. 484 S.W.3d at 342-44. Small held that any
payment made by an employer or its insured to an injured employee to compensate for a
category of recovery for which the employer would be obligated under chapter 287 is a
payment "under this chapter" on account of the employee's injury regardless the reason for
the payment. Id. at 346-47.
Regardless whether Mr. Small received the payments gratuitously, . . . or
under the Texas workers' compensation law or a compromise settlement,
the payments his employer and its insurer made for his ongoing medical
problems directly stemming from the . . . workplace injury were payments
the employer was required to make under the Missouri Workers'
Compensation Law. Accordingly, the payments were made "under this
chapter."
Id. at 346.
The Commission acknowledged, but disregarded, the holding in Small. Employer
and the Fund argued, and the Commission agreed, that Small involved a 1995 workplace
injury that was subject to the pre-2005 version of chapter 287 which required liberal, and
not strict, construction. According to the Commission, the 2005 amendment of Chapter
287 to now require strict construction of chapter 287 necessitates interpreting the phrase
"under this chapter" more narrowly than we did in Small. See section 287.800.1 (RSMo
2005). We disagree.
7
The Commission improperly pigeon-holed Small as a "liberal construction" case,
and ignored Dungan v. Fuqua Homes, Inc., 437 S.W.3d 807 (Mo. App. W.D. 2014), which
was favorably cited by Small. 484 S.W.3d at 346-47. In Dungan, the employee's injury
occurred in 2008, and was thus subject to the version of Chapter 287 that requires "strict
construction." 437 S.W.3d at 808, 812. Dungan rejected the argument that strict
construction requires the phrase "under this chapter" to be interpreted differently than it
had been before the 2005 amendment to Chapter 287. Id. at 812 (holding that "the strict
construction mandate of section 287.800 does not affect the analysis" regarding the
meaning of "under this chapter"). Instead, Dungan reaffirmed that a payment made "under
this chapter" includes any "payments made by parties with an obligation to make payments
under Chapter 287." Dungan, 437 S.W.3d at 814 (citing with approval Brown v. Ozark
Christian Schools of Neosho, 847 S.W.2d 888, 896 (Mo. App. S.D. 1993) (holding that an
employer's gratuitous payment for burial expenses tolled section 287.430's statute of
limitation when the payment was made by an employer "required by the Workers'
Compensation Law to pay the reasonable expense of the employee's burial"); Bryan v.
Summit Travel, Inc., 984 S.W.2d 185, 188 (Mo. App. W.D. 1998) (finding that "payment
under this chapter" means any payment made by a party having an obligation under Chapter
287) overruled on other grounds by Hampton v. Big Boy Steel Erection, 984 S.W.2d 185
(Mo. banc 2003). The Commission erroneously applied "strict construction" to alter the
settled meaning of the phrase "under this chapter" as used in section 287.430.
This conclusion is reinforced by general principles of statutory construction. "The
primary rule of statutory construction is to ascertain the intent of the legislature from the
8
language used, to give effect to that intent if possible, and to consider the words used in
their plain and ordinary meaning." Dickemann v. Costco Wholesale Corp., 550 S.W.3d 65,
68 (Mo. banc 2018). "The provisions of a legislative act must be construed and considered
together and, if possible, all provisions must be harmonized and every clause given some
meaning." Id. "The legislature is presumed not to enact meaningless provisions." Id.
Here, the Commission's Final Award concluded that strict construction of "under
this chapter" requires "a Missouri payment;" that is, a "payment[] made to [an] employee
under [Missouri] law." This conclusion is not further explained, though the conclusion
was applied by the Commission to find that Kansas workers' compensation payments to
Austin were not "Missouri payments," even though they were payments of a nature the
Employer would have been obligated to make under Missouri workers' compensation law.
The Commission thus held that based on strict construction of "under this chapter,"
it is no longer enough for a payment to be of a nature otherwise obligated to be made under
Missouri workers' compensation law, and instead a payment must in fact have been made
pursuant, or subject to, the acknowledged authority of the Division. As the Fund admitted
during oral argument, the primary manner in which a payment would in fact be made
pursuant, or subject to, the acknowledged authority of the Division is after a claim or report
of injury has been filed by the employee or employer with the Division.
This interpretation of the phrase "under this chapter" would lead to absurd results.
Section 287.430 tolls the statute of limitations for filing a workers' compensation claim for
two or three years (depending on whether an employer has filed a report of injury), with
the tolling period commencing on the later of the date of injury or the last date of a payment
9
"under this chapter." There would be no reason to alternatively permit the tolling period
to file a claim to commence on the last date of a payment "under this chapter" if the only
payments eligible to toll the limitations period are those made pursuant, or subject to, a
claim or report of injury already filed with the Division.
The Employer also argued that an employer's voluntary payments to an injured
employee could be self-designated as "Missouri payments," even without a claim or report
of injury having been filed with the Division. But this interpretation would also lead to an
absurd result. It would effectively disqualify all dual jurisdiction workers' compensation
claims from eligibility for tolling based on payments made, even though the General
Assembly expressed no such intent in its 2005 amendments to the workers' compensation
law.7
We conclude, as we did in Smalls and in Dungan, that the plain and ordinary
meaning of "under this chapter" is any payment of a nature required by Missouri workers'
compensation law made by a person who would be obligated by Missouri workers'
compensation law to make such payments. This plain and ordinary meaning is not altered
by principles of liberal or strict construction. Rather, section 287.800.1 "has no impact on
the analysis of this case." Dickemann, 550 S.W.3d at 68 n. 5. "This Court is no more
entitled to ignore the plain and unambiguous meaning of a statute's words under 'strict
7
When the General Assembly intends its amendments to the workers' compensation law to impact the
ability to file dual jurisdiction workers' compensation claims, they do so expressly. See note 5, supra addressing the
2012 amendments to the workers' compensation law to prohibit the filing of certain dual jurisdiction claims against
the Fund.
10
construction' than it is under 'liberal construction' or in the absence of such an instruction."
Id.
Here, Employer and AMCO made payments on account of Austin's March 10, 2011
workplace injury of a nature that Employer and its insurer were obligated to pay Austin
under Chapter 287. Though the payments were not made pursuant to a pending Missouri
worker's compensation claim, the payments were nonetheless made "under [Chapter 287]."
The payments tolled section 287.430's limitations period. Because Austin filed his
Missouri workers' compensation claim against Employer and the Fund on September 23,
2015, within three years of the last of payments made by a party having an obligation to
him under Chapter 287, Austin's claim was timely filed.
The Commission committed legal error when it denied Austin's claim on the basis
that his claim was untimely filed with the Division pursuant to section 287.430.
Point One is granted.
Conclusion
We reverse the Commission's Final Award and remand this matter for further
proceedings consistent with this opinion.
__________________________________
Cynthia L. Martin, Judge
All concur
11