Ann Talbert v. AGCO Mfg. Group

1. In finding that there was good cause for dismissing the claimant's claim for failure to prosecute.
2. In denying the claimant's Motion to Set Aside the Order of Dismissal upon the claimant's timely filing of a motion to set aside stating the facts and circumstances surrounding the reason(s) claimant failed to appear at the hearing and the status of the prosecution of the claimant's claim.

The Motion to Set Aside the Order of Dismissal was not attached to or incorporated in the Application for Review.

On July 5, 2005, employer/insurer filed its suggestions in opposition to set aside of the Order of Dismissal. The parties have submitted legal briefs.

Employee's case was dismissed for failure to appear at the scheduled show cause hearing. In her Application for Review, employee alleges no reason for her failure to appear at the show cause hearing. Employee's allegations, if true, will not support a finding of good cause for employee's failure to appear at the scheduled good cause hearing. As such, employee's allegations in the Application for Review do not state prima facie good cause for employee's failure to appear at the scheduled good cause hearing.

As noted above, the Motion to Set Aside Default Judgments of Dismissal were not attached to the Application for Review. Nonetheless, we have reviewed the allegations therein to determine whether they state a prima facie good cause. Employee alleges in the Motion that her counsel missed the show cause hearing because the hearing did not get docketed due to a Dictaphone malfunction. This allegation does not state prima facie good cause for missing the hearing. The failure of office docketing procedures is not good cause for missing a hearing. Robinson v. Missouri Dep't of Corrections, Bd. of Probation \& Parole, 805 S.W.2d 688, 690 (Mo. App. 1991). Notably missing from employee's Motion are allegations regarding employee's failure to attend the hearing.

Because neither the Application for Review nor the Motion to Set Aside Default Judgments of Dismissal contain allegations stating prima facie good cause, no purpose would be served by remanding to determine the truth or falsity of the allegations. See Ross v. Safeway Stores, Inc., 738 S.W.2d 611, 616 (Mo. App. 1987).

Because employee states no good cause for missing the show cause hearing, we agree with the administrative law judge's assessment that employee has failed to seize the opportunity afforded her by the Commission to further prosecute this claim. We also agree with the administrative law judge's assessment that this $121 / 2$ year-old claim must be brought to a conclusion. However, rather than dismissing the claim, we believe the proper method for concluding this matter is to issue a final award on the evidence submitted at the trial of this matter almost three years ago.

Based upon the foregoing, we set aside the Order of Dismissal dated June 7, 2005, and reinstate the claim.

We affirm the award and decision of the administrative law judge dated July 10, 2003. The award and decision of Chief Administrative Law Judge Kenneth J. Cain, issued July 10, 2003, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of March 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Employee: Ann Talbert Injury No. 93-000804

Dependents: N/A

Employer: AGCO Company, Inc.

Insurer: Fireman's Fund Insurance Co.

Additional Party: N/A

Hearing Date: May 1, 2003

Final Brief Received June 1, 2003 Checked by: KJC/Ih

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: January 4, 1993.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of her employment, as a laborer for the AGCO Manufacturing Group sustained an injury when she slipped and fell on the ice in the employer's parking lot while walking to the entrance of the plant.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Head and back.
14. Nature and extent of any permanent disability: Aggravation of pre-existing spinal stenosis.

1. Compensation paid to-date for temporary disability: None.
2. Value necessary medical aid paid to date by employer/insurer? None.
3. Value necessary medical aid not furnished by employer/insurer? Undetermined.
4. Employee's average weekly wages: $\ 507.20.
5. Weekly compensation rate: $\$ 338.13 / \ 235.61.
6. Method wages computation: $\S 287.250$ and by agreement of the parties.

21.Amount of compensation payable: None.

Unpaid medical expenses: Undetermined.

None weeks of temporary total disability (or temporary partial disability)

None weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A for Claimant's lifetime

1. Second Injury Fund liability: N/A.

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL: Undetermined

1. Future requirements awarded: Undetermined

Said payments to begin as of the date of the award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: David Bony.

Employee: Ann Talbert Injury No: 93-184795

Dependents: N/A

Employer: AGCO Company, Inc.

Insurer: Fireman's Fund Insurance Co.

Additional Party: N/A

Checked by: KJC/lh

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1) the nature and extent of the disability sustained by the employee;

2) whether all the conditions complained of by the employee resulted from the accident; and

3) liability of the employer for additional medical benefits, past and future.

At the hearing, Ms. Ann Talbert (hereinafter referred to as Claimant) testified that she was born on July 16, 1933, in the state of Oklahoma. She stated that she graduated from high school in Oklahoma and moved to Kansas City, Missouri.

Claimant testified that she had worked on a number of jobs in the Kansas City area. She stated that her first job was floor girl at a suit and coat manufacturing plant. She also stated that she worked as a machine operator at the Lake City Ammunition plant, clean up person at Bendix and finally on the assembly line at AlisChalmers, which later became AGCO. She stated that she had worked at either Alis-Chalmers or AGCO since 1976 other than for a five-year lay off period during which she worked at Cook's Paint.

Claimant testified that her job at AGCO involved heavy manual labor. She stated that she sustained an injury at work on January 4, 1993, when she slipped and fell on ice while walking from the AGGO's guard shack to the door of the building to go to work. She indicated that during the incident her feet slipped out from under her and that her head, back and right hip landed on the ice and concrete.

Claimant testified that she received heat treatments and pain medications on the day of the accident. She stated that she missed the following day from work and that she could not recall wheth