Calvin Marshall v. Curators of the University of Missouri

(Modifying the Award of the Administrative Law Judge)

Injury No. 09-054072

Employee: Calvin Marshall

Alleged Employers/Insurers:

Job Finders Employment Service/Uninsured

Curators of the University of Missouri/Self-Insured

Optima Staffing, Inc./National Union Fire Insurance

ACEO, LLC/Guarantee Insurance Company

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

This workers' compensation case is pending before the Labor and Industrial Relations Commission (Commission) on an application for review filed by alleged employer, the Curators of the University of Missouri (MU). We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein.

Are we precluded from considering the liability of Ann Williams?

Ann Williams is the President of Job Finders Employment Services (Job Finders).

Employee never named Ms. Williams in a claim for compensation. Still, the administrative law judge found that "Ann Williams is personally liable for Calvin Marshall's workers' compensation benefits due to her complete domination of [Job Finders] and her failure to abide by their legal and statutory duty to purchase workers' compensation insurance." Ms. Williams filed an application for review challenging the administrative law judge's award of liability against her. Because Ms. Williams filed her application for review more than twenty days after the mailing of the award, we dismissed her application.

MU challenges our jurisdiction and/or authority to consider issues other than those raised by MU's application for review. In particular, MU challenges our authority to review the propriety of the administrative law judge's award of personal liability against Ann Williams. MU cites Stonecipher v. Poplar Bluff R1 School District for the proposition that 8 CSR 203.030(3)(A) prohibits us from considering any issue not included in a timely application for review. ${ }^{1}$ That is contrary to the Court's own understanding of its holding in Stonecipher:

In Stonecipher, the Commission specifically found it was not limited to review of the errors complained of by the moving party. 205 S.W.3d at 331. We did not render a decision on whether the applicable regulations limit the Commission's review to issues raised in the application for review, but instead found that even if the Commission could properly consider non-appealed matters "an issue we do not yet decide--the Commission exceeded its power in [considering non-appealed matters] without [first] affording appropriate notice and opportunity to be heard." Id. at 332. We reiterated this same conclusion in Nolan, and noted "[d]ue process, in

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[^0]: ${ }^{1} 205$ S.W. 3d 326, 332 (Mo. App. 2006).

Employee: Calvin Marshall

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Missouri workers' compensation cases and elsewhere, contemplates the opportunity to be heard at a meaningful time and in a meaningful manner." Nolan, 246 S.W.3d at 5.²

We do not read Stonecipher to prohibit this commission from considering issues not raised by a valid application for review, nor do we believe such an interpretation would survive a strict construction analysis. The court decided Stonecipher under the Missouri Workers' Compensation Law (Law) as it existed in 2000. The Stonecipher court did not rely upon any explicit provision of the Law. The 2005 amendments to the Law apply to the instant case. Section 287.800.1 RSMo mandates that we construe the provisions of the Law strictly.³ We decide this matter pursuant to § 287.480 RSMo, which reads, in relevant part:

If an application for review is made to the commission within twenty days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue, their representatives and witnesses and shall make an award and file it in like manner as specified in section 287.470.

We have reviewed § 287.480 and the whole of Chapter 287 and find no language setting forth mandatory content for applications for review. Nor do we find language restricting the extent of our review by the contents of an application for review.

Stonecipher does not preclude us from considering Ms. Williams' liability. We proceeded just as the Stonecipher court directed we must. We specifically put all parties on notice that we would consider the propriety of the award against Ms. Williams. Our May 6, 2014, Order stated:

Our conclusion that the application for review will not lie does not necessarily mean we conclude the award against Anne Williams is proper. The parties are put on notice that, as we do in every case, we will consider whether we have jurisdiction and/or statutory authority to address the subject matter of the award, including the piercing of the corporate veil of Job Finders. We will also consider whether we have personal jurisdiction over those against whom the administrative law judge awarded compensation, including Anne Williams. Any party wanting us to conclude that we have authority to award compensation against Anne Williams should devote a portion of their brief to establishing such authority.⁴

We provided the parties with the opportunity to be heard at a meaningful time and in a meaningful manner on the issue of Ms. Williams' liability.

Finally, as administrative tribunals, the administrative law judge and this commission are creatures of statute and exercise only that authority invested by legislative enactment.⁵

² Payne v. Treasurer of Mo., 417 S.W.3d 834, 846-847 (Mo. App. S.D. 2014), citing Stonecipher, supra, and Nolan v. Degussa Admixtures, Inc., 246 S.W.3d 1 (Mo. App. S.D. 2008).

³ Statutory references are to the Revised Statutes of Missouri 2008, unless otherwise indicated.

⁴ We apologize to Ms. Williams for misspelling her name as "Anne" in our order dated May 6, 2014. We picked up the spelling from the first page of her application for review.

⁵ Farmer v. Barlow Truck Lines, 979 S.W.2d 169, 170 (Mo. 1998).

Engardless of whether any party raises the issue of our authority to rule on a particular issue, we have an affirmative obligation to examine Chapter 287 to determine if we have such authority. ${ }^{6}$

The administrative law judge concluded that "Ann Williams is personally liable for Calvin Marshall's workers' compensation benefits due to her complete domination of [Job Finders] and her failure to abide by their legal and statutory duty to purchase workers' compensation insurance." We have doubts whether we or the administrative law judge have authority to pierce the corporate veil under a strict construction of the Workers' Compensation Law because we find no provision of the Law authorizing an award ordering that workers' compensation benefits be paid by a corporate officer or principal or any other person or entity not a party to the case and/or not found to be an employer or insurer therein.

The award against Ms. Williams is invalid for other reasons. Employee did not name Ms. Williams as a party to the claim and even opposed the effort by MU to add Ms. Williams as a party. Consequently, the Division never provided Ms. Williams with notice of the hearing as required by $\S 287.520$ RSMo. Such notice is jurisdictional and, as such, renders the award against Ms. Williams void. ${ }^{7}$ In addition, the Division never notified Ms. Williams that an award might be entered against her. Due process requires notice reasonably calculated to apprise interested persons of the pendency of the action and to afford them an opportunity to present their objections. ${ }^{8}$ The Division did not afford Ms. Williams due process in this matter.

Section 287.030.1 RSMo provides:

The word 'employer' as used in this chapter shall be construed to mean...every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay...

(Emphasis ours).

The evidence clearly establishes that MU used the service of employee for pay. At MU's direction, employee performed custodial work for MU. MU paid Job Finders for using employee's service. We affirm the administrative law judge's finding that MU was employee's employer for purposes of the Missouri Workers' Compensation Law.

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[^0]: ${ }^{6}$ Id. This obligation is analogous to the obligation of an appellate court to determine its jurisdiction to hear an appeal. See, for example, Eldrige v. Barnes, 189 S.W.3d 182, 183 (Mo. App. 2006).

${ }^{7}$ Woodruff v. Tourville Quarry, Inc., 381 S.W.2d 14, 18 (Mo. App. 1964)("[W]here notice is jurisdictional, and it is in the instant case, it must affirmatively appear of record, unless waived, or the proceedings are void.")

${ }^{8}$ Forms World v. Labor \& Indus. Rels. Comm'n, 935 S.W.2d 680, 684 (Mo. App. 1996)("Notice is 'an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality.' Division of Employment Sec. v. Smith, 615 S.W.2d 66, 68 (Mo. banc 1981) (citing Mullane v. Central Hanover Bank \& Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)). The notice must be 'reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.'" See also, Stonecipher, Payne, and Nolan, supra.

We agree with the administrative law judge's finding that employee was in the joint service of Job Finders and MU at the time of his injury and, as such, Job Finders and MU are jointly and severally liable for the compensation owed to employee.

We do not adopt the administrative law judge's conclusion that MU was employee's statutory employer. Having found MU was employee's direct employer with primary liability for employee's compensation, there is no need to consider whether MU was deemed an employer under § 287.040 RSMo.

Guarantee Insurance Company (GIC) filed a Motion to Submit Additional Evidence requesting leave to offer evidence concerning: 1) GIC's alleged lack of notice of the proceedings, 2) whether or not GIC carried workers' compensation coverage for ACEO, LLC, and 3) the employment relationship (presumably between ACEO, LLC and employee). Neither we nor the administrative law judge found ACEO, LLC to be an employer of employee. Neither we nor the administrative law judge awarded compensation from ACEO, LLC. GIC has no liability under this award. We deny GIC's Motion to Submit Additional Evidence as moot.

We reverse the administrative law judge's award of benefits against Ann Williams. We reverse the administrative law judge's conclusion that MU was employee's statutory employer. In all other respects, we affirm and adopt the administrative law judge's award.

We further 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.

We attach the award and decision of Administrative Law Judge Vicky Ruth, issued February 28, 2014, and we incorporate it to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of February 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest: