The
Perilous
Road
of Appeals
The Missouri Labor and Industrial Commission in 2018 issued several important decisions
providing guidance to parties who want to appeal decisions of an administrative
law judge.
The rules to appeal are set forth in the Code of State Regulations.
8
CSR 20-3.030 Review of Awards or Orders Issued by Administrative Law Judges
(4)(C) The brief of the party requesting the
application for review shall contain a fair and concise statement of facts
without argument. The respondent may supplement the statement of facts if
necessary. No jurisdictional statement
is necessary unless jurisdiction is at issue. (Parties are advised that recitations
of basic legal principles of workers compensation law are not necessary and are
discouraged. The commission is aware of
principles such as that the burden of proof is on the employee, the law is to be liberally interpreted in
favor of the employee, and that the commission may make its own
determination of the facts, and credibility of the witnesses including
experts.) The briefs shall identify the issues in dispute and address those
issues only. The briefs should state
concisely the factual or legal support for the party’s positions. Lengthy recitation of facts or cases without
identifying how they relate to the party’s position will not be considered.
Briefs of all parties should clearly outline and explain the issues in dispute
and contain a conclusion in detail as to the decision, award or action
requested from the Labor and Industrial Relations Commission. (emphasis added)
Section 287.800 provides:
1. Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.
2.
Administrative law judges, associate administrative law judges, legal advisors,
the labor and industrial relations commission, and the division of workers'
compensation shall weigh the evidence
impartially without giving the benefit of the doubt to any party when weighing
evidence and resolving factual conflicts.
(emphasis added)
The court of appeals has affirmed dismissals to the
Commission that fail to comply with the specific rules. Smith v. Smiley Container Corp., 997 S.W.2d 126, 128 (Mo. App.
1999), Wilkey v. Ozark Care Ctr.
Partners, L.L. C., 236 S.W.3d 101, 102 (Mo. App. 2007).
Despite 287.800 to “construe the provisions” strictly,
the Commission has allowed multiple recent cases to proceed on the merits when the parties
may not follow the basic tenets of the regulations to identify the reason for
the legal fight, the admonition against being a chatty Cathy, and to fight fair
and not argue during the statement of facts on the rationale that appeals are
remedial in nature and should be “construed liberally in favor of allowing
appeals to proceed.”
Identify the issues in dispute
The Commission noted the parties did not identify on
the record. The parties asked the ALJ to address “at least” two statutory
tests, the award did not address either, and addressed a third issue that was
not expressed at trial. On the appeal
the parties did not ask the Commission to address whether the party sustained
an accident, or an injury arising out of employment but the general issue of
medical causation which was not addressed at hearing.
Farris v ADS Waste Holding, 2018 MO WCLR
LEXIS 17 (ALJ Fowler)
The Commission noted
the parties disputed causation when the issue was not raised as a dispute. The Commission noted the parties incorrectly argued
whether the claimant had an “accident” arising out of in the course of the
employment when the correct standard was whether an “injury” arose of out employment.
The Commission further noted the phrase “scope”
was not defined the statute.
Hood v City of Kansas City, 2018 MO WCLR
Lexis 1 (ALJ Rebman)
Identify the error
A
2-1 majority allowed an appeal to proceed for partial disability for exposure
to fumes and dust despite a failure to identify the findings supported by the
evidence. Counsel in the case had
surrendered his license.
Judd v DaimlerChrysler, 2018 MO WCLR
LEXIS 198 (Jun 20, 2018) (ALJ Kohner)
Don’t
Argue
The
Commission allowed an appeal to proceed despite violations of the rule against presenting
argument in the statement of facts.
Barnett v Harley Davidson, 2018 MO WCLR
Lexis 189
Other issues
The Commission in a 2-1 decision dismissed an appeal based on a sua sponte review for lack of
jurisdiction whether an uninsured employer had enough employees to be subject to the Act. The uninsured employer did not file any responsive pleadings or participate.
The case had been previously remanded by the Commission to develop additional
evidence. Claimant failed to establish that her employer had enough
employees to be covered by the Act.
Mealer v Russ Jackson
Transportation, 2018 MO WCLR LEXIS
___ (Aug 1, 2018) (ALJ Carlisle)
The Commission in a 2-1 decision found an application of
review in which the party appeared to appeal multiple cases only identified the
injury number of one award on the application.
“We lack jurisdiction to address the issue… in the context of separate
awards not reference sin the employee’s application for review.” The dissent found the attorney substantially
complied with he rules and should not lose a right to appeal due to technical
formalities.
Mealer v Russ Jackson
Transportation, 2018 MO WCLR LEXIS ___ (Aug 1, 2018) (ALJ Carlisle).
