                  IN THE MIISSOUR
                                RI COURRT OF AP
                                              PPEALS
                                                   S
                          WESTER
                          W      RN DIST
                                       TRICT
CYNTH
    HIA KNIGH
            HT,                     )
                         Appellant, )
                                    )
v.                                  )               WD78 591
                                    )
CON-AG
     GRA FOOD DS, INC. and          )               FILED: Decemberr 8, 2015
TREASU
     URER OF THE
              T    STATE E OF       )
MISSOU
     URI - CUST
              TODIAN OF  F THE      )
SECOND
     D INJURY FUND,                 )
                      Resspondents. )

                 Appeal from thee Labor and
                                          d Industriall Relations C
                                                                  Commission
                                                                           n

  Beforee Division 4: Alok Ahujja, C.J., Tho
                                           omas H. Neewton, J., an
                                                                 nd David M. Byrn, Sp.JJ.

       On
       O August 21
                 1, 2013, Cyn
                            nthia Knight filed a Claim
                                                     m for Comppensation witth the

Department of Laborr and Industrrial Relation
                                            ns’ Division oof Workers’ Compensattion. Knightt’s

workers’ compensatiion claim rellated to an in
                                             njury she sufffered on Jannuary 13, 20009, during hher

employm
      ment with Reespondent Co
                             on-Agra Foo
                                       ods, Inc. Th e Labor andd Industrial R
                                                                            Relations

Commisssion dismissed Knight’s claim as unttimely on tw
                                                      wo grounds. Knight appeeals. Becauuse

she challenges only one
                    o of the tw
                              wo reasons fo
                                          or the Comm
                                                    mission’s advverse ruling,, we affirm.

                                        Factua
                                             al Backgrou
                                                       und

       Cynthia
       C       Knig
                  ght was emplloyed at Con
                                         n-Agra’s plaant in Marshaall. She wass injured at w
                                                                                           work

on January 13, 2009,, when she feell, hit her heead, and sufffered a conccussion. Kniight was treaated

at a hospital emergen
                    ncy room and
                               d released th
                                           he same day..
        Con-Agra filed a Report of Injury with the Division of Worker’s Compensation the

following day. Con-Agra and its workers’ compensation insurer authorized Knight’s emergency

room visit, and paid all medical bills associated with that visit. These are the only payments

made directly by Con-Agra or by its workers’ compensation insurer on account of the injury

Knight suffered on January 13, 2009.

        Knight claims that she continued to experience medical problems related to her January

2009 injury, and she requested that Con-Agra authorize additional medical treatment. Con-

Agra’s in-house nurses denied those requests, concluding that Knight’s later medical complaints

were not work-related. Knight sought treatment on her own. Payments to the health-care

providers Knight selected were made by her employer-provided health insurance, which was

administered by Blue Cross/Blue Shield.

        On August 21, 2013, Knight filed a Claim for Compensation with the Division of

Workers’ Compensation for her injuries arising out of the January 2009 incident. Con-Agra, its

insurer, and the Second Injury Fund all raised a statute of limitations defense. They asserted that

Knight’s claim was untimely under § 287.430,1 which provides in relevant part that a claim for

compensation must be filed “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.” Knight responded that her

Claim for Compensation was timely because the payments made by Blue Cross/Blue Shield for

her later medical treatment, including payments made within two years of the filing of her claim,

constituted payments “made under this chapter on account of the injury.” Knight argued that

these later payments tolled the running of the statute of limitations because her later medical

treatment was related to the January 2009 workplace injury, and because her health insurance

        1
               Statutory citations refer to the 2000 edition of the Revised Statutes of Missouri, as
supplemented through the 2008 Cumulative Supplement.


                                                     2
was fully self-funded by Con-Agra, meaning that the later payments were in reality made by

Con-Agra directly.

       Following an evidentiary hearing, an administrative law judge (“ALJ”) agreed with Con-

Agra that Knight’s claim was untimely. The ALJ’s decision explained:

       Claimant’s assertion that the Blue Cross/Blue Shield payments were made “under
       this chapter (Ch. 287) on account of the injury” fails on two counts. First, there is
       no medical evidence whatsoever that the medical treatment of November 14, 2011
       for which Blue Cross/Blue Shield made payments, was medical treatment
       rendered “on account of the injury” (i.e., an injury incurred by Claimant in the
       January 13, 2009 accident). Second, Dungan v. Fuqua Homes, Inc., 437 S.W.3d
       807 (Mo. App. W.D. 2014) held that payments made by a health insurance carrier
       do not constitute “payments made under this chapter”, and thus do not toll the
       running of the statute of limitations. Dungan is clearly on point and is dispositive
       of the issue.

       On review, the Labor and Industrial Relations Commission adopted the ALJ’s decision as

its own.2 Knight now appeals.

                                              Analysis

       Knight contends, for two reasons, that the Labor and Industrial Commission erred in

concluding that her workers’ compensation claim was untimely. First, she argues that “payments

made by [Knight]’s Employer-provided fully self-funded health insurance plan constituted

payments made under chapter 287 for the purposes of tolling the statute of limitations contained

in § 287.430.” Second, she claims that the Commission, following Dungan, erroneously “added

the requirement that ‘payments made under this chapter’ in that section be made by an obligation

of the employer when no such requirement is found in § 287.430.”

       In order for later payments to delay the running of the statute of limitations, those

payments must satisfy at least two requirements: the payments must be “[1] made under this



       2
                “When, as here, the Commission affirms or adopts the findings of the ALJ, we review the
decision and findings of the ALJ as adopted by the Commission.” Dungan, 437 S.W.3d at 809.


                                                  3
chapter [2] on account of the injury or death.” § 287.430. The Commission in this case found

that the payments on which Knight relied failed to satisfy either criteria: they were not payments

“made under this chapter” because those payments were made by Knight’s health insurer, not by

Con-Agra or its workers’ compensation insurer; and they were not payments “on account of the

injury” because there was no medical evidence that Knight’s November 2011 medical treatment

was related to her January 2009 injury. Yet, despite the fact that the Commission relied on two

separate and independent rationales to find Knight’s claim to be untimely, she challenges only

one of those rationales: both of Knight’s Points argue that Blue Cross/Blue Shield’s payments

for her November 2011 medical care constituted payments “made under this chapter.”

       Because Knight has failed to challenge each of the grounds on which the Commission

relied to find her claim untimely, we have no option but to affirm the Commission’s decision.

               While it may not be stated explicitly in Rule 84.04, the fundamental
       requirement for an appellate argument is that it demonstrate the erroneousness of
       the basis upon which a lower court or agency issued an adverse ruling. Unless an
       appellant challenges the grounds on which an adverse ruling depends, he has
       shown no entitlement to appellate relief.

Rainey v. SSPS, Inc., 259 S.W.3d 603, 606 (Mo. App. W.D. 2008). As a corollary to this

principle, if a trial court or administrative agency relies on multiple, independently sufficient

grounds in issuing an adverse ruling, the appellant must challenge each of those independent

grounds of decision. This Court addressed this precise situation in City of Peculiar v. Hunt

Martin Materials, LLC, 274 S.W.3d 588 (Mo. App. W.D. 2009):

                [Appellants’] points on appeal attack only two of the circuit court's five
       grounds for denying their petition for a declaratory judgment. . . . [Appellants’]
       points do not attack the circuit court’s three other grounds for denying their
       petition. To reverse the circuit court’s judgment, however, [Appellants] would
       necessarily have to establish that all of the reasons that the circuit court articulated
       in its judgment were wrong. This is because, even if we agreed with [Appellants]
       that the circuit court erred in making those two conclusions, we would have no
       choice but to presume, in the absence of arguments to the contrary, that the circuit
       court's other three reasons for denying their petitions were correct. Alleged errors


                                                  4
        by the trial court must be prejudicial and affect the merits of the action. Rule
        84.13(b). Thus, by failing to assert that all of the circuit court’s grounds were
        incorrect, [Appellants] have failed to carry their burden on appeal of establishing
        that the circuit court erred in denying their petition.

City of Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 590-91 (Mo. App. W.D.

2009); see also, e.g., STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219 (Mo. App. W.D. 2012);

Chastain v. Kansas City Mo. City Clerk, 337 S.W.3d 149, 155 (Mo. App. W.D. 2011).

        The reasoning of City of Peculiar is fully applicable here. Even if we were to agree with

Knight that the payments made by Blue Cross/Blue Shield were payments “made under this

chapter,” this would not alter the result: those payments would still not toll the running of the

statute of limitations, because of the Commission’s separate – and unchallenged – determination

that the payments were not made “on account of the [January 2009] injury.” We will not

separately address the Commission’s finding that the Blue Cross/Blue Shield payments were not

made “on account of the [January 2009] injury,” where Knight has made no argument

challenging that finding.3 Presuming that unchallenged finding to be correct, we have no option

but to affirm the Commission’s decision.




        3
                  At oral argument, Knight’s counsel argued that the question whether her November 2011
medical treatment related to her January 2009 injury should be remanded to the Commission, because that
issue was not fully litigated in the prior evidentiary hearing. Knight did not argue in her briefing,
however, that the Commission’s express finding that the payments were not made “on account of the
[January 2009] injury” was improper, because it addressed an issue that had not been fully litigated. We
will not consider an issue raised for the first time at argument. McGuire v. Kenoma, LLC, 375 S.W.3d
157, 182 n. 20 (Mo. App. W.D. 2012). In any event, Knight’s characterization of the scope of the prior
evidentiary hearing appears to be incorrect. At the outset of that hearing the ALJ stated his understanding
that “the issue to be decided by virtue of today’s hearing is whether the Claim for Compensation was filed
within the time allowed by the statute of limitations, Section 287.430,” and all counsel affirmatively
indicated their agreement with the ALJ’s statement. As explained in the text, one of the essential issues in
determining the application of § 287.430’s statute of limitations in this case is whether the payments
made for Knight’s November 2011 medical treatment were “on account of the [January 2009] injury.”
Because Knight had a full opportunity to address this issue in the Commission proceedings which have
already occurred, a remand to permit that issue to be re-litigated is unwarranted.


                                                     5
                                       Conclusion

       We
       W affirm thee Commissio
                             on’s Final Award
                                        A     Denyi ng Compenssation.




                                                Alokk Ahuja, Chhief Judge
All concu
        ur.




                                            6
