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Oberreiter v. Fullbright Trucking Co.9/23/2003
Opinion Vote: AFFIRMED.
Crandall Jr., and Mooney, JJ., concur.
Opinion:
This is the third appeal in this workers' compensation case. The Second Injury Fund ("Fund") now appeals from the decision of the Labor and Industrial Relations Commission ("Commission") reversing the award and decision of the Administrative Law Judge ("ALJ"), and awarding the widow of Orville Oberreiter and her children ("claimants") funeral expenses and weekly death benefits. Finding no error, we affirm.
Orville Oberreiter ("decedent") was killed in a tractor trailer accident on September 22, 1987. Claimants filed a wrongful death action in circuit court against Willard and Rose Mary Fullbright d/b/a Fullbright Trucking Company ("Fullbright Trucking") on March 4, 1989. Claimants' wrongful death petition alleged that decedent was an employee of Fullbright Trucking and that Fullbright Trucking had provided defective equipment to decedent that caused his demise.
On October 20, 1993, claimants filed a death claim for workers' compensation. At that time, claimants' wrongful death case was pending in circuit court. On October 7, 1997, after a hearing, the ALJ made findings of fact on the merits of the workers' compensation claim as well as concluded that the claim was barred by the statute of limitations. The Commission affirmed the ALJ's ruling that the claim was barred by the statute of limitations, but found that the ALJ lacked subject matter jurisdiction to make any findings as to the merits of the claim. On August 31, 1998, claimants appealed to this court, contending that the Commission erred in finding that their claim was barred by the statute of limitations, because the statute of limitations was tolled by section 287.440 RSMo 1986 while their wrongful death suit was pending against Fullbright Trucking.
In Oberreiter v. Fullbright Trucking , 991 S.W.2d 721, 723 (Mo. App. 1999) ("Oberreiter I") , this Court noted that in order to toll the statute of limitations in a workers' compensation claim, section 287.440 requires: "(1) an action at law for damages, (2) denial of recovery, and (3) that recovery is denied because the person is an employee and the defendant is an employer subject to the Workers' Compensation Act." We observed that there was an action at law for damages in a court of general jurisdiction, but that there had been no denial of recovery at that point in time, for any reason, and that the Commission had properly concluded that the claim was barred by the statute of limitations. Id . This Court also stated that "If and when these additional requirements are met, then the Commission may address the applicability of the tolling provision. Until then, the tolling provision cannot be applied." Id . We further found that we did not have jurisdiction to consider the Commission's denial of compensation because it was not a final award. Id.
The case returned to the Commission after the issuance of the mandate, and on July 14, 1999, the Commission issued an order of dismissal without prejudice. The Commission noted the decision of this Court and stated:
A wrongful death action is pending in the Circuit Court of Jefferson County. Unless the circuit court dismisses [claimants'] wrongful death suit for the specific reasons given in section 287.440 RSMo, the Commission does not have subject matter jurisdiction over the claim. We dismiss the claim without prejudice. The claim may properly be filed at a later time with the Division of Workers' Compensation pursuant to section 287.440 RSMo, if the requirements of that section are met.
Claimants appealed the Commission's order of dismissal without prejudice, asserting that
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