David Trimmer v. Johnson Controls, Inc.

**Injury No.:** 03-147616

Because we otherwise agree with the administrative law judge's findings, conclusions, and award as to the underlying issues of occupational disease, nature and extent of permanent disability, and employer's liability for future medical care, we affirm the award of the administrative law judge.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Robert B. Miner, issued March 14, 2014, is attached and incorporated by this reference.

We approve and affirm 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 22nd day of August 2014.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**DISSENTING OPINION FILED**

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the Commission lacks statutory authority to enter an award of compensation in this case, because employee's claim for compensation constitutes nothing less than an impermissible attempt to reopen issues that were resolved in a final award.

On May 17, 2004, employee filed with the Division of Workers' Compensation (Division) a claim for compensation alleging that he suffered a left shoulder injury arising out of and in the course of his employment for employer on September 9, 2003. The Division designated the claim as Injury No. 03-142166. The claim proceeded to a hearing, where the parties stipulated that the administrative law judge would hear evidence upon and resolve the following issues:

[W]hether or not the [employee] sustained an accident or occupational disease arising out of and in the course of his employment ...

Transcript, page 238 (emphasis added).

During the course of the hearing, employee presented evidence suggesting his left shoulder injury was the result of a fall on September 9, 2003. The employer, meanwhile, advanced evidence to undermine employee's credibility regarding the alleged fall, as well as medical records suggesting employee's left shoulder complaints came on gradually, rather than as the product of an accidental injury. Notably, despite having stipulated that the administrative law judge would consider and determine the issue, employee failed to present evidence sufficient to meet his burden of proving that his left shoulder injury was the product of an occupational disease.

On September 15, 2005, the administrative law judge issued an award concluding, in part, as follows:

[Employee] failed to meet his burden of proof that established he sustained an injury by accident or occupation [sic] arising out of his employment. [Employee's] Claim for Compensation is denied.

Transcript, page 157.

Employee filed an appeal to the Commission, which on June 19, 2006, affirmed and adopted as its own the award of the administrative law judge. Employee did not appeal the claim to the Missouri Court of Appeals. As a result, the Commission's award, concluding that employee did not meet his burden of proving he suffered a compensable left shoulder injury by accident or occupational disease, is final.

In light of the above described background, how is it that we are now presented with a new claim asking us to once again consider the issue whether employee suffered a left shoulder injury by occupational disease culminating on September 9, 2003? The

answer begins with some unusual comments set forth in the administrative law judge's award of September 15, 2005, in Injury No. 03-142166, suggesting he believed that employee's claim might have been compensable if pled as an occupational disease, but that no benefits could be awarded, because employee had pled an accident:

This is a troublesome case because I suspect that the [employee's] injury to his left shoulder was the result of 30 years of hard physical labor performed for the employer. This should have been compensable. However, the [employee] has pled an alleged injury from a fall. ${ }^{1}$

Transcript, page 162.

Taking the hint, employee procured an expert medical opinion from Dr. Fernando Egea, who opined that employee suffered a left shoulder injury by occupational disease. Employee then filed another claim for compensation with the Division. The Division assigned employee's claim a new injury number, and remarkably, two different administrative law judges and now this Commission have concluded that they possess statutory authority to revisit the issue whether an occupational disease caused employee's left shoulder injury, despite the fact that that issue was finally disposed of in the proceedings in Injury No. 03-142166.

Again, the parties stipulated at the hearing in Injury No. 03-142166 that the administrative law judge would consider and resolve the issue whether employee's left shoulder injury was the product of an occupational disease. "Stipulations are controlling and conclusive, and the courts are bound to enforce them." Boyer v. Nat'l Express Co., 49 S.W.3d 700, 705 (Mo. App. 2001). Of course, "[a] stipulation should be interpreted in view of the result which the parties were attempting to accomplish." Id.

I acknowledge that employee's claim for compensation in Injury No. 03-142166 appears to allege an injury by accident. But at the hearing, the parties did not ask the administrative law judge to confine his determinations solely to the issue of accident, nor did employee's counsel make any indication on the record that employee wished to preserve the right to file, at a later date, a claim alleging the shoulder injury was caused by an occupational disease. Instead, she specifically agreed, when asked, that the administrative law judge had correctly recited the issues for trial. See Transcript, page 239.

It may have been that the administrative law judge simply made a mistake in reciting the issues; it may also have been that employee's counsel was simply not paying close enough attention to correct that mistake; and it may have been that the administrative law judge ultimately exceeded the scope of his authority in resolving the issue of occupational disease in his award. ${ }^{2}$ If so, employee's recourse was to file an appeal with the Commission; he did

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[^0]: ${ }^{1}$ I note that these comments suggest an apparent misapprehension of applicable law, in that the Missouri courts have never held that parties are bound by their "pleadings" in evidentiary proceedings under Chapter 287, and in fact have long held the opposite, see, e.g., Groce v. Pyle, 315 S.W.2d 482, 493 (Mo. App. 1958).

${ }^{2}$ Perhaps this case is best viewed as an example of the needless confusion and difficulty that results on appeal when (as often) parties and administrative law judges fail to make sure that the record at hearing includes a careful and precise statement of the disputed issues.

so, and the Commission adopted the administrative law judge's award as its own, so employee's recourse was then with the Missouri Court of Appeals. But employee did not pursue that avenue. Instead, under the guise of a new claim for compensation, he seeks to relitigate before the Division and the Commission issues that were indisputably ${ }^{3}$ raised and disposed of in the earlier proceedings in Injury No. 03-142166.

But the courts have made clear that where "the time for appeal of the award [has] expired ... the Commission is without authority to further delineate the award or expound on its meaning." Falk v. Barry, Inc., 158 S.W.3d 327, 328 (Mo. App. 2005). This is because "[a]n administrative tribunal is a creature of statute and exercises only that authority invested by legislative enactment." Winberry v. Treasurer of Mo. as Custodian of the Second Injury Fund, 258 S.W.3d 455 (Mo. App. 2008). Where an administrative agency acts without statutory authority to do so, the resulting "judgment" is void on its face. State ex rel. Ryan v. Ryan, 124 S.W.3d 512, 516 (Mo. Ct. App. 2004).

Stated simply, the majority's decision in this case stands for the proposition that workers' compensation litigants are entitled to a second bite of the apple in Missouri. An employee can file a claim, try his case, receive an award denying compensation but hinting at what evidence might have tipped the scales in his favor, go and procure that evidence, refile the claim, and receive a favorable award. I accept that in workers' compensation cases "[p]rocedural rights are considered as subsidiary and substantive rights are to be enforced at the sacrifice of procedural formality," Loyd v. Ozark Electric Coop., Inc., 4 S.W.3d 579, 586 (Mo. App. 1999), but I am not persuaded that general principles of informality or liberal construction can elevate employee's claim for compensation beyond anything more than an impermissible attempt to collaterally attack the Commission's final award in Injury No. 03-142166.

Anyway, the determinative issue is