Kathleen Farmer, Appellant, v. Barlow Truck Lines, Inc., Employer Insurance of Wausau, and State Treasurer, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Kathleen Farmer, Appellant, v. Barlow Truck Lines, Inc., Employer Insurance of Wausau, and State Treasurer, Respondents. Case Number: 54153 Handdown Date: 07/28/1998 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Price Kellar Counsel for Respondent: Greg Carter and Cara Lee Harris Opinion Summary: Kathleen Farmer appeals the Labor and Industrial Relations Commission's decision that it did not have jurisdiction to consider her claim for workers' compensation filed on March 29, 1993, against her employer, Barlow Truck Lines, Inc., of Faucett. REVERSED AND REMANDED. Division Two holds: An administrative tribunal has authority to set aside a dismissal for failure to prosecute provided that it acts within the time set by law for appeal of the decision and provided that the set aside is not prohibited by law. Setting aside a dismissal for failure to prosecute does not constitute a review function as contemplated by the General Assembly in Section 287.610.2, RSMo 1994.

Farmer's application for review to the Commission was not timely filed pursuant to Section 287.480, RSMo 1994, thereby depriving the Commission of jurisdiction over her workers' compensation claim. The administrative law judge did not have authority to set aside his order dismissing Ms. Farmer's claim because Section 287.655, RSMo 1994, provides that dismissal awards are "subject to review and appeal in the same manner as provided for other awards" in Chapter 287,

and Section 287.610.2, RSMo 1994, prohibits administrative law judges from reviewing and reopening their awards. These statutes and Section 287.410, RSMo 1994, express the legislative intent that an administrative law judge's dismissal award be reviewed by or appealed to the Commission, and not the administrative law judge. The administrative law judge reviewed and reopened his award when he set aside his dismissal order, and he had no authority to do so. Review could only be conducted pursuant to Section 287.480, RSMo 1994, which requires that an application for review be made to the Commission within twenty days after the administrative law judge enters an award. Ms. Farmer failed to file her application for review within twenty days after May 10, 1994, the date the administrative law judge entered an order dismissing her claim. Therefore, the Commission lacked jurisdiction to review the dismissal award. Citation: Opinion Author: Paul M. Spinden, Judge Opinion Vote: REVERSED AND REMANDED. Lowenstein, J., concurs. Breckenridge, P.J., dissents in a separate opinion. Opinion: Kathleen Farmer appeals the Labor and Industrial Relations Commission's decision that it did not have jurisdiction to consider her claim for workers' compensation filed on March 29, 1993, against her employer, Barlow Truck Lines, Inc., of Faucett. We reverse and remand the case for consideration of Farmer's claim. The commission's administrative law judge, Nelson Allen, dismissed Farmer's claim "with prejudice" when neither party appeared for a hearing on April 22, 1994. On May 10, 1994, Administrative Law Judge Allen ordered that his dismissal of the case be set aside and that the case be "reset in docket in regular order." No explanation for Administrative Law Judge Allen's action appears in the record. On May 23, 1994, Administrative Law Judge Allen transferred the case from St. Joseph to Division of Workers' Compensation offices in Joplin. Later, apparently on December 6, 1996,(FN1) Administrative Law Judge Robert H. House entered an order dismissing the case again: It is my opinion that the Missouri Court of Appeals, Southern District, would find that I have no jurisdiction in this case. There was a dismissal of this case and the dismissal was set aside without any application for [review] having been filed with the Labor and [Industrial] Relations Commission. The Eastern District in State ex rel[.] Doe Run v. Brown, 918 S.W.2d 303 (Mo. App. 1996), and the Western

District in State ex rel[.] Famous Barr v. Labor and Industrial Relations Commission, [931 S.W.2d 892] (Mo. App. 1996), held that once a case is dismissed by the administrative law judge, the Division of Workers' Compensation does not retain jurisdiction to deal with that case in any manner absent a timely application for review to and the setting aside of the order of dismissal by the Labor and Industrial Relations Commission. I will not set this case again. I order that the file be closed. Farmer asked the commission, on December 23, 1996, to review Administrative Law Judge House's dismissal. Based on Sections 287.480 and 287.655, RSMo 1994, the commission concluded that it did not have jurisdiction to consider the matter because Farmer had not appealed Administrative Law Judge Allen's dismissal within 20 days. Based on Brown, 918 S.W.2d at 303, and State ex rel. Famous Barr, 931 S.W.2d at 892, the commission dismissed Farmer's request for the commission to review. For the reasons outlined in our earlier decision, Wilson v. 3-M, Case m 53943, slip op. (May 19, 1998), we reverse. Because that opinion was not final when we handed down this opinion, we repeat the basic rationale set out by The Honorable Laura Denvir Stith. Contrary to the holdings of Brown and State ex rel. Famous Barr, an administrative tribunal has authority to set aside a dismissal for failure to prosecute provided that it acts within the time set by law for appeal of the decision and provided that the set aside is not prohibited by law. Eleven Star, Inc. v. Director of Revenue, 764 S.W.2d 521, 522 (Mo. App. 1989). We rested our decision in Eleven Star on a case involving a claim for unemployment compensation, Webb v. Labor and Industrial Relations Commission of Missouri, Division of Employment Security, 674 S.W.2d 672 (Mo. App. 1984). Although Eleven Star was an Administrative Hearing Commission case, it is applicable to a workers' compensation case. Indeed, the Eleven Star court applied the principles enunciated in Webb, an unemployment compensation case. A cardinal principle of all administrative law cases is that an "administrative tribunal is a creature of statute and exercises only that authority invested by legislative enactment." Sheets v. Labor and Industrial Relations Commission, 622 S.W.2d 391, 393 (Mo. App. 1981). Barlow Truck Lines and the Treasurer contend on the basis of Sheets that once an administrative tribunal has issued its decision, it can do nothing more to that decision unless the General Assembly grants it authority. They argue that not only did Administrative Law Judge Allen not have authority to set aside his order to dismiss, Section 287.610.2, RSMo 1994, prohibited it. We disagree. Section 287.610.2 says, "The administrative law judges appointed by the division . . . shall have no jurisdiction

whatsoever upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award[.]" Barlow Truck Lines and the Treasurer argue, pursuant to Section 287.655, that allowing an administrative law judge to set aside his order dismissing a case constitutes reopening a prior award and is, therefore, prohibited by Section 287.610.2. Indeed, Section 287.655 says that an order of dismissal "shall be deemed an award and subject to review and appeal in the same manner as provided for other awards in this chapter." Section 287.610.2, however, does not prohibit an administrative law judge from setting aside an order within the 20 days in which the dismissal can be appealed; it prohibits the administrative hearing judge from exercising a reviewCeither by hearing an appeal of an original hearing or by reopening a prior award. This is consistent with the General Assembly's mandate in Section 287.410, RSMo 1994, that the commission not delegate its power to review awards. An administrative law judge's setting aside a dismissal for failure to prosecute within the time for appealing the order does not constitute a review function as contemplated by the General Assembly. This decision is in conflict with the Eastern District's decisions in Brown, 918 S.W.2d at 303, and Doneff v. Treasurer of State of Missouri, 965 S.W.2d 255 (1998).(FN2) These cases did not consider the principles set forth in Eleven Star and Webb, so we disagree with them and reach a contrary result. We, therefore, reverse the commission's dismissal of Farmer's claim. We remand for full consideration of her claim. Footnotes: FN1.Administrative Law Judge House did not date his order. Farmer says that the order was entered on December 6, 1996, and the other parties do not dispute that date. FN2.The parties also cited us to our decision in State ex rel. Famous Barr, 931 S.W.2d at 892, but in that case we decided only that the commission lacked jurisdiction of an administrative law judge's decision not appealed to the commission within the 20-day, statutory deadline. It did not address the issue of an administrative law judge's power to set aside its dismissal for failure to prosecute within the statutory time for appeal. We also feel compelled to stress that in Sheets, 622 S.W.2d at 391, we ruled that an administrative tribunal needed statutory authority to set aside a decision to reconsider the merits of a case. Reconsidering the merits of a case is a far cry from setting aside a dismissal for failure to prosecute. Separate Opinion:

to the Commission was not timely filed pursuant to Section 287.480, RSMo 1994,(FN1) thereby depriving the Commission

of jurisdiction over her claim for workers' compensation. To confer jurisdiction on the Commission, an application for review must be filed within twenty days after an award is entered by an administrative law judge. Section 287.480. It is my opinion that the award from which Ms. Farmer should have filed her application for review was Administrative Law Judge Allen's dismissal order of May 10, 1994, because his subsequent attempt to set aside the dismissal was beyond his authority and, therefore, void. Since she did not file her application for review within twenty days of May 10, 1994, the Commission correctly determined that it did not have jurisdiction and dismissed her application for review. The determination that Administrative Law Judge Allen did not have authority to set aside his dismissal order is compelled by the statutes governing his administrative agency, the Division of Workers' Compensation. "An administrative agency has no more authority than is granted by statute." AT&T v. Wallemann, 827 S.W.2d 217, 221 (Mo. App. 1992). Section 287.460.1 authorizes the Division, through an administrative law judge, to conduct a summary proceeding on the issues of the parties and to enter an award, including "findings of fact, rulings of law and any other matters pertinent to the question at issue." In this case, no hearing was held on the issues of Ms. Farmer's claim because Ms. Farmer failed to appear for her hearing. Administrative Law Judge Allen dismissed her claim for failure to prosecute, which he had authority to do under Section 287.655. That statute expressly confers upon an administrative law judge the power to dismiss a claim for failure to prosecute, and it provides how to dismiss the claim and the effect of a dismissal for review and appeal purposes: Any claim before the division may be dismissed for failure to prosecute in accordance with rules and regulations promulgated by the commission. . . . To dismiss a claim the administrative law judge shall enter an order of dismissal which shall be deemed an award and subject to review and appeal in the same manner as provided for other awards in this chapter. Section 287.655. When construing a statute, courts are to "ascertain the intent of the legislature from the language used and give effect to that intent, if possible, and to consider the words used in their plain and ordinary meaning." Butler v. Mitchell- Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995). "Courts look elsewhere for interpretation only when the meaning is ambiguous or would lead to an illogical result defeating the purpose of the legislature." State ex rel. Md. Heights, Etc. v. Campbell, 736 S.W.2d 383, 387 (Mo. banc 1987). To determine whether ambiguity exists in a statute, the test is "whether the statute's terms are plain and clear to one of ordinary intelligence." Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). Moreover, a statute that is plain and unambiguous cannot be made ambiguous by administrative interpretation. Id.

Considering the words of Section 287.655 in their plain and ordinary meaning, the authority of the administrative law judge under this statute is clear and unambiguous. An administrative law judge may dismiss a claim for failure to prosecute by entering an order of dismissal. Once this order of dismissal is entered, it is effectively an award. As an award, it is subject to be reviewed and appealed in the same way other awards are reviewed and appealed in Chapter 287, The Workers' Compensation Law. Because Section 287.655 is clear and unambiguous, strict compliance with its provision regarding review and appeal of dismissal awards is mandatory. Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 662 (Mo. App. 1994) ("Absent ambiguities in the statute, strict compliance with the requirements of the workers' compensation law relating to review and appeal are jurisdictional."); See also Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 342 (Mo. banc 1991). Thus, to seek review of a dismissal award, or to appeal a dismissal award, a party must follow the provisions for review and appeal of other awards as outlined in Chapter 287. In Chapter 287, Section 287.470 provides that the Commission may rehear an award at any time after it is made, upon the Commission's own motion or upon the application of a party in interest on the ground of a change in condition. On such review, the Commission can end, diminish or increase the compensation previously awarded. Section 287.470. Section 287.480 authorizes the Commission to consider applications for review of an award if the application is filed within twenty days of the entry of the award. Neither of these statutes authorizes an administrative law judge to review awards. In fact, Section 287.410 specifically prohibits an administrative law judge from exercising the power conferred under these two statutes which govern reviews of awards by providing that "the power and duty to review any award made under the workers' compensation law, as authorized by sections 287.470 and 287.480, may not be delegated, but such power and duty shall be exercised exclusively by the commission. . . ." None of the statutory provisions in Chapter 287 concerning review and appeal of awards authorizes an administrative law judge to review an administrative law judge's award. Furthermore, Section 287.610.2, which outlines the jurisdiction of administrative law judges, specifically denies them the power to review or reopen awards. Section 287.610.2, in pertinent part, provides that administrative law judges "shall only have jurisdiction to hear and determine claims upon original hearing and shall have no jurisdiction whatsoever upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award. . . ." Contrary to the majority's opinion, I would find that Administrative Law Judge Allen reviewed and reopened his prior award when he set aside his dismissal order. To "review" is to "re-examine judicially or administratively. A reconsideration; second view or examination; revision; consideration for purposes of correction." Black's Law Dictionary 1320 (6th ed. 1990). Administrative Law Judge Allen's

decision to set aside his dismissal order was a reconsideration of the dismissal award. Furthermore, to "reopen a case" means "to permit the introduction of new evidence and, practically to permit a new trial." Id. at 1298. In granting Ms. Farmer's request to set aside the dismissal order, Administrative Law Judge Allen necessarily permitted a new trial which will include the introduction of new evidence. The plain language of Section 287.610.2 prohibited him from doing so. The majority attempts to distinguish the reopening of a dismissal award for failure to prosecute from the reopening of any other award when it finds that "[a]n administrative law judge's setting aside a dismissal for failure to prosecute within the time for appealing the order does not constitute a review function as contemplated by the General Assembly." In so ruling, they ignore the plain meaning of Section 287.655. Section 287.655 authorizes dismissals for failure to prosecute and then goes on to state that "an order of dismissal . . . shall be deemed an award and [be] subject to review and appeal in the same manner as provided for other awards in this chapter." Clearly, the legislature intended that a dismissal for failure to prosecute be treated the same as any other award. While the equities of this case demonstrate that claimants might benefit from an administrative law judge's ability to set aside a dismissal for good cause, that grant of authority must come from the legislature, not the courts. I recognize that "administrative agencies have not only express power but also those powers necessarily implied from the language of a statute." State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 476 (Mo. banc 1992). "Implication of a power, however, is only proper if it necessarily follows from the language of the statute." Scheble v. Missouri Clean Water Com'n, 734 S.W.2d 541, 556 (Mo. App. 1987) (statute authorizing the Clean Water Commission to "issue and enter such final order . . . as it deems appropriate under the circumstances" to abate pollution of state waters grants the Commission the implied authority to issue a mandatory injunction). See also Jones, 823 S.W.2d at 476-77 (specific authority of Judicial Finance Committee to make factual determinations regarding the reasonableness of the circuit court's budget gives the Commission implied authority to delay the effective date of the new budget to avoid disruption of critical government services while making these factual determinations); AT&T, 827 S.W.2d at 224-25 (statute authorizing the Human Rights Commission to "seek to eliminate and prevent discrimination because of . . . handicap" gives the Commission the implied power to require a party to submit to an examination by a physician or other suitable examiner as a means for the Commission to determine if discrimination exists). Unlike the general statutes in these cases in which courts found implied powers, Section 287.655 is specific in its directive that dismissal awards are subject to be reviewed in the same way that other awards in Chapter 287 are reviewed, i.e., by the Commission. There is no necessary implication from this statute that dismissal awards can also be reviewed by an administrative law judge. In addition to cases which have found administrative agency powers implied from statutes, there are also cases

which have found that administrative agencies have inherent powers, including the inherent power to set aside a dismissal order. In Webb v. Labor and Indus Rel. Com'n, 674 S.W.2d 672, 673 (Mo. App. 1984), an unemployment benefits claimant appealed an adverse determination by a deputy to the appeals tribunal. After the claimant failed to appear at the hearing, the appeals referee dismissed the appeal. Id. This court reversed the dismissal, finding that the appeals tribunal had the inherent power to dismiss the appeal, and as a "necessary corollary" to this power, the appeals tribunal also had the inherent power to set aside the dismissal for good cause. Id. The case of Eleven Star, Inc. v. Director of Revenue, 764 S.W.2d 521, 522 (Mo. App. 1989), reaffirmed Webb's finding that an administrative agency has inherent authority to set aside a dismissal for good cause shown. Eleven Star involved a dismissal for failure to prosecute entered by the Administrative Hearing Commission. In light of the long-standing rule in Missouri that an administrative agency "does not have any jurisdiction or authority except that which the Legislature has conferred upon it," Soars v. Soars-Lovelace, Inc., 142 S.W.2d 866, 871 (Mo. 1940), I question whether an administrative agency has any "inherent" powers. However, this issue need not be decided, as these cases are distinguishable from the present case. Unlike in Webb and Eleven Star, the statutes governing this case, Sections 287.410, 287.610.2 and 287.655, expressly preclude an administrative law judge from exercising any "inherent" power to review an order of dismissal. An administrative law judge cannot have any inherent power to review a dismissal when there is language in the statutes conferring that power upon the Commission, and prohibiting the exercise of that power by administrative law judges. See Gee v. Labor & Indus. Rel. Com'n of Mo., 674 S.W.2d 69, 71 (Mo. App. 1991). The majority's ruling that Administrative Law Judge Allen had jurisdiction to set aside his order of dismissal, and the opinion from this court upon which the majority relies, Wilson v. 3-M, No. 53943, slip. op. (W.D. May 19, 1998), are in conflict with a well-reasoned opinion from the Eastern District. In the Eastern District's case of State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 305 (Mo. App. 1996), the administrative law judge dismissed the claimant's workers' compensation cases for failure to prosecute. Eight days later, the administrative law judge set aside the dismissal after claimant filed a motion to reinstate his claims. Id. On appeal, after a trial court denied the employer's motion for a permanent order prohibiting the administrative law judge from proceeding with the claimant's cases, the court reversed. Id. at 307. The Eastern District's opinion focused on an apparent conflict between the mandate of Section 287.610.2 that administrative law judges "shall have no jurisdiction whatsoever" to review by way of appeal or by reopening a prior award, and 8 C.S.R. 20-3.010(2)(c), a regulation in effect at the time of that case. Id. at 306. 8 C.S.R. 20-3.101(2)(c)

implied that administrative law judges have the power to change or modify awards within twenty days after their entry by providing that an administrative law judge "shall not have any authority to change or modify a final award issued by an Administrative Law Judge after the lapse of twenty (20) days from the date of issuance of an award. . . ." Id. The court held that the language in Section 287.610.2 was plain and unambiguous, and that 8 C.S.R. 20-3.010(2) (c) was invalid to the extent that it "is interpreted as granting an ALJ the authority to reinstate a dismissed workers' compensation claim within twenty days of a dismissal order," because it was in conflict with Section 287.610.2. Id. at 306-

1. The court also found that because a dismissal is an award under Section 287.655, the proper procedure for review of

a dismissal for failure to prosecute is to file an application for review with the Commission within 20 days after the entry of the award, pursuant to Section 287.480. Id. at 307. The Eastern District recently reaffirmed the holding of Doe Run in Doneff v. Treasurer of State of Missouri, No. 72436, slip op. at 2 (E.D. Feb. 10, 1998). This court cited Doe Run with approval in State ex. rel. Famous Barr v. Labor and Indus. Rel. Com'n, 931 S.W.2d 892, 893 (Mo. App. 1996), although Wilson indicates that Famous Barr should no longer be followed to the extent that it adopts Doe Run's rationale. Wilson, slip. op. at 15 n.6. In Famous Barr, an administrative law judge dismissed a workers' compensation claim after the claimant failed to appear for a hearing. Id. The claimant filed a "motion to set hearing to reinstate" the claim within twenty days after the dismissal order was entered; however, the administrative law judge did not consider the motion until two months after the entry of the dismissal order. Id. The administrative law judge decided that he no longer had jurisdiction over the claim. Id. The claimant then filed an application for review with the Commission. Id. After the Commission determined that the dismissal was void because it did not state a reason for the dismissal, the employer petitioned this court for a writ of prohibition. Id. This court found that the Commission did not have jurisdiction over the claim because the claimant's application for review to the Commission was filed 80 days after the entry of the dismissal order. Id. Finding that the administrative law judge lost jurisdiction over the matter after the dismissal pursuant to Section 287.610.2, this court stated: The correct procedure, appeal to the Commission, is clearly outlined in the statutes. [The claimant] chose not to appeal to the Commission, but instead pursued an order of reinstatement from the ALJ. Unfortunately, the procedures outlined in Chapter 287 do not authorize such an approach.

Id. All consistent statutes relating to the same subject are in pari materia and should be construed together and read in harmony. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991). By specifically stating in Section 287.655, within the paragraph authorizing dismissals for failure to prosecute, that dismissal awards are "subject to review and appeal in the same manner as provided for other awards" in Chapter 287, and by prohibiting administrative

law judges from reviewing and reopening their awards in Section 287.610.2, the legislature stated its intention that an administrative law judge's dismissal award be reviewed by or appealed to the Commission, and not the administrative law judge. Administrative Law Judge Allen reviewed and reopened his award when he set aside his dismissal order, and he had no authority to do so. In Section 287.410, the legislature granted only the Commission the authority to review awards, including dismissals, entered by the administrative law judge. That review is to be conducted pursuant to Section 287.480, so long as an application for review is made to the Commission within twenty days after the administrative law judge enters the dismissal award. Ms. Farmer failed to file her application for review within twenty days after May 10, 1994, the date the administrative law judge entered an order dismissing her claim. Therefore, I would find that the Commission was correct in determining that it lacked jurisdiction to review the dismissal award. I certify that the majority opinion is contrary to the previous decision of the Eastern District in State ex rel. Doe Run, 918 S.W.2d 303, and request transfer of this case to the Supreme Court, pursuant to Rule 83.01. Footnote: FN1.All statutory references are to Revised Statutes of Missouri 1994, unless otherwise indicated. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.