In this workers’ compensation case, employee, Shirley Weniger, appeals from the decision of the Labor and Industrial Relations Commission denying compensation. We affirm.
Employee worked for Pulitzer Publishing Company (employer), for twenty-three years as an advertising sales representative. In September, 1987, employee was diagnosed as having carpal tunnel syndrome. She had surgery on her left hand on September 28, 1987 and on her right hand on October 19, 1987. Employee filed a claim for workers’ compensation on August 30,1990. Following a hearing, the Administrative Law Judge (ALJ) entered an award denying compensation, finding the proceedings barred by the statute of limitations, § 287.430 RSMo 1986. On review, the Labor and Industrial Relations Commission (the Commission) affirmed the ALJ’s denial of compensation.
In the first of two points, employee asserts the Commission erred as a matter of law in finding her claim baiTed by the statute of limitations because “substantial and competent evidence ... showed that the employer had notice of the claimant’s injury, yet failed to timely file a report of injury, thereby giving the claimant three years from the date of injury or last treatment to file her claim instead of two years under the terms of section 287.430 RSMo.” In her second point, employee asserts that awards of the Commission which are “clearly the interpretation or application of the law,” such as the statute of limitations question here, as opposed to determination of facts, are not binding on the court of appeals and are subject to review and correction. Point two claims no error, but addresses our standard of review. We consider it in tandem with point one.
On appeal, we are bound to affirm the Commission’s award “if it is supported by competent and substantial evidence on the whole record.”
Mann v. Supreme Express,
A workers’ compensation claim must be filed within two years after the date of injury. § 287.430 RSMo 1986. The employer is required to notify the division “within ten days after knowledge of an accident resulting in personal injury to any employee” and file a report of injury within one month thereafter. § 287.380 RSMo 1986. If the employer fails to file the report of injury as required by § 287.380, the time to file a claim for compensation is extended to three years after the date of injury. § 287.430 RSMo. Carpal tunnel syndrome is a known occupational disease.
Elgersma v. DePaul Health Center,
Employee claims that the statute of limitations was extended from two to three years pursuant to § 287.430 due to employer’s alleged failure to timely file a report of injury as required by § 287.380. Employer did not file a report of injury until September 14, 1990, or fifteen days after employee filed her claim for compensation. The Commission rejected employee’s claim, finding it “punitive ... that an employer without notice is expected to file a Report of Injury.” The Commission further found the “statutory scheme clearly requires knowledge of the accident or occupational disease before the Report of Injury requirement keys in.”
Employee asserts the Commission “confused and misinterpreted” the issues of notice and statute of limitations. We disagree. Employee notes we recently held the notice requirement of § 287.420 does not apply to cases of occupational disease.
Elgersma,
Employee contends the application of the statute of limitations to the facts of this case is a “purely legal question.” Therefore, employee claims the Commission’s decision is not binding on this court, citing
Merriman v. Ben Gutman Truck Service, Inc.,
Here, the issue is whether the employer had knowledge of the occupational disease, thereby triggering a duty to file a report of injury. This is not “clearly an interpretation or application of Law”.
See West,
The only evidence concerning employer’s knowledge of the occupational disease was elicited during the cross-examination of employee. Employee’s testimony concerning her contact with employer’s health and accident department was equivocal. Employee first stated she “may have” talked to Ms. Reese of that department about having surgery in 1987. Then employee testified she did not remember going to Ms. Reese at all in 1987 and telling Ms. Reese she had carpel tunnel syndrome caused by working on a computer at work. Employee further testified in response to a question by the ALJ that she “didn’t go through Workers’ Comp, or see about it or file anything [in 1987].”
Other evidence presented at the hearing supports the Commission’s finding that employer did not have notice. Employee testified she saw doctors at Group Health Plan, (GHP), her “only insurer, through the Post.” The record on appeal includes copies of various GHP medical records, which indicated employee’s carpal tunnel syndrome was work-related. Nothing in the record, however, indicates that employer had any knowledge or information concerning these medical records or employee’s medical care and *362 treatment. Employee further relies on the stipulation of counsel that “employer had notice of injury.” The stipulation, though, includes no reference as to when employer obtained notice of injury. On this record, the Commission’s finding that employer had no notice or knowledge of the occupational disease at the time the statute of limitations began to ran is supported by competent and substantial evidence.
Since employer did not have knowledge of employee’s condition, the two-year statute of limitations under § 287.480 is applicable. The statute of limitations in eases of occupational disease begins to ran when it becomes reasonably discoverable that a com-pensable injury has been sustained. § 287.-063.3 RSMo. When an injury is reasonably apparent and discoverable is a question of fact to be determined by the Commission.
Thomas v. Becker Metals Corp.,
The two-year period expired September 28, 1989, or two years from the date of employee’s first surgery. Employee’s claim filed August 30, 1990 was untimely. The award of the Commission finding the proceedings barred by the statute of limitations, § 287.430, is supported by competent and substantial evidence on the whole record.
Judgment affirmed.