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Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund6/8/2004
Opinion Vote: AFFIRMED. All concur.
Opinion:
The Labor and Industrial Relations Commission awarded Lana C. Elrod compensation from the Second Injury Fund. The state Treasurer, as custodian of the Fund, appeals pointing to the statute of limitations, and a lack of sufficient competent evidence. Elrod cross-appeals for permanent-total-disability benefits. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Affirmed.
I.
Working as a cook, Elrod slipped, injuring her left knee. On May 30, 1995, she filed a "Claim for Compensation" with the Division of Workers' Compensation, but left blank the section "Claim Against the Second Injury Fund."
Elrod had knee surgery in November 1995. Later, the knee locked, causing a fall and further injury. She had a second surgery in November 1997. Elrod has been unemployed since then. Her employer provided treatment for the knee until at least April 23, 1998.
On November 3, 1998, Elrod filed another claim for compensation, checking the box "amended claim." This time, she completed the section "Second Injury Fund Claim." She supplemented the original facts with details of her treatment, and additional "parts of body injured." In her claim against the Fund, Elrod asserted that pre-existing injuries to her right ankle, right shin, and wrists--combined with the current injury to her left knee--caused permanent and total disability. In 1999 and 2000, she again supplemented her claim, eventually including pre-existing disabilities from morbid obesity and diabetes.
The Administrative Law Judge held that Elrod's claim against the Fund was not barred by the statute of limitations in section 287.430. The ALJ also found: (1) Elrod's pre-existing injury to her right ankle caused a 12.5% permanent-partial disability to the body as a whole; (2) the injury to her left knee had caused a 20% permanent-partial disability at the level of the knee; (3) the sum of these two disabilities was 159.5 weeks of compensation; (4) the combined condition of her right ankle, left knee, morbid obesity, and diabetes made her permanent-partial disability significantly higher than the sum of injuries to her ankle and knee; (5) the combined conditions caused 81.875% permanent-partial disability to the body as a whole or 327.5 weeks; and (6) the difference is 168 weeks of compensation. The ALJ ordered the Fund to pay for permanent-partial disability, plus temporary-total-disability benefits related to another job Elrod held at the time of her knee injury. Both parties sought review by the Labor and Industrial Relations Commission. The Commission entered the final award.
II.
The Fund argues that Elrod's claim is barred by the statute of limitations in section 287.430 (emphasis added):
Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death 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, death, or last payment made under this chapter on account of the injury or death. . . . A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later . . . . In all other respects the limitations sha
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