Timothy McDaniel v. Furniture 4 Less, LLC

The attached Motion to Submit Additional Evidence states, in its entirety, as follows:

1. On October 2, 2015, Claimant presented evidence in his claim against the Second Injury Fund for $2^{\text {nd }}$ job wage loss.
2. At the time the request for final hearing was made the only issue to be decided by agreement of the parties was " $2^{\text {nd }}$ job wage loss". (See attached Exhibit A)
3. Neither party requested that the statutory requirements to fulfill the definition of "employer" was an issue for final hearing.
4. In the Judge's award dated October 8, 2015, acknowledges [sic] in paragraph 6 that Claimant was employed by Pro Foods.
5. Claimant was not aware that the statutory requirements to fulfill the definition of "employer" was an issue in dispute, therefore, Claimant submitted no evidence on that issue.
6. Claimant wishes to submit additional evidence that employer has five (5) or more employees and can do so through affidavit of the Claimant and/or testimony.
7. Claimant will testify through affidavit and/or testimony that the employer has five (5) or more employees.

WHEREFORE Claimant respectfully requests the Labor and Industrial Relations Commission to allow additional evidence in this matter.

Employee's application refers the reader to the attached Motion to Submit Additional Evidence. As a result, we consider the Motion to Submit Additional Evidence as incorporated into the application for review by reference. The Motion to Submit Additional Evidence suggests the administrative law judge erred by reaching an issue the parties did not place in dispute.

Cases should be heard and decided on their merits. To that end, statutes and rules relating to appeals, being remedial, are to be construed liberally in favor of allowing appeals to proceed. Accordingly we review claimant's application for review in light of a liberal construction of 8 CSR 20$3.030(3)(\mathrm{A})$.

Isgriggs v. Pacer Indus., 869 S.W.2d 295, 296 (Mo. App. 1994).

Consistent with the foregoing judicial admonition, we liberally construe the language of 8 CSR 20-3.030(3)(A) in favor of allowing appeals to proceed on their merits. ${ }^{1}$ Although

[^0]

[^0]: ${ }^{1}$ We acknowledge the "strict construction" mandate that, in 2005, replaced the prior "liberal construction" rule of § 287.800.1 RSMo. However, § 287.800.1 applies, by its own terms, to the language of Chapter 287 itself, and not to the Commission's rules.

Employee's application for review and incorporated Motion to Submit Additional Evidence certainly could have more clearly identified employee's claim of error on the part of the administrative law judge, we conclude the application for review has minimally satisfied the requirements of 8 CSR 20-3.030(3)(A). Accordingly, the Second Injury Fund's Motion to Dismiss Employee's Application for Review is hereby denied.

Employee's motion to submit additional evidence is denied and the award is affirmed Our rule 8 CSR 20-3.030(2) pertaining to the submission of additional evidence provides, as follows:

(A) After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail--

1. The nature and substance of the newly discovered evidence;
2. Names of witnesses to be produced;
3. Nature of the exhibits to be introduced;
4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge;
5. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and
6. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

Employee desires to submit additional evidence to show that Pro Foods (the "second" alleged employer in this second job wage loss claim) had five employees and was thus an

"employer" for purposes of § 287.030.1 RSMo. As support for this request, employee suggests that he was surprised to face a dispute from the Second Injury Fund as to the issue whether Pro Foods was an "employer."

The record created at the hearing before the administrative law judge sets forth the parties' stipulations as well as the disputed issues the parties asked the administrative law judge to resolve:

Judge Fischer: It's my understanding that on or about February the $18^{\text {th }}$ of 2010, the Claimant, Timothy McDaniel, was in the employment of Furniture for Less, LLC. ${ }^{2}$ It's my understanding that Mr. McDaniel sustained an injury by accident and that the accident arose out of and in the course of his employment. It's also my understanding that all of the facts relevant to Mr. McDaniel's relationship with the employer/insurer are resolved in his favor in this pending claim against the Second Injury Fund. ... It's my understanding that the only issue to be resolved as a result of today's hearing is the liability of the Second Injury Fund for second job wage loss benefits. ... Mr. Lyskowski, ${ }^{3}$ do you concur with what I've indicated for the record?

Mr. Lyskowski: I do, Judge, with the addition that Mr. McDaniel was also of the employ of Pro Foods at the time of the injury.

Judge Fischer: Okay. And I'm assuming that there will be testimony taken with that?

Mr. Lyskowski: Correct, Judge.

Judge Fischer: Mr. Herman, do you agree?

Mr. Herman: ${ }^{4} \quad$ Yes, Judge.

Transcript, pages 4-6.

Viewed in the most generous light in the context of employee's Motion to Submit Additional Evidence, the foregoing is susceptible to a reading that employee's counsel attempted to add an additional stipulation: that employee was "in the employ" of Pro Foods. The record does reveal some ambiguity as to whether the administrative law judge considered this an additional stipulation or an additional disputed issue; it would appear that she understood the latter, because of her expectation that the parties would provide testimony on that issue.

[^0]

[^0]: ${ }^{2} The named, or "first" employer herein.

{ }^{3} Employee's counsel.

{ }^{4}$ The Second Injury Fund's counsel.

But even if we assume that the above exchange reflects a legitimate misunderstanding among the parties and the administrative law judge as to the scope of the stipulations and disputed issues, we are not persuaded that this circumstance warrants the taking of any additional evidence in this matter. This is because a stipulation that employee was "in the employ" of Pro Foods is not the same as a stipulation that Pro Foods was an "employer" for purposes of $\S 287.030 .1$, and when the parties placed at issue the question of "the liability of the Second Injury Fund for second job wage loss benefits," the issue whether Pro Foods was an "employer" unquestionably became a necessary element of employee's case.

This is made clear in the case of Davidson v. Mo. State Treasurer, 327 S.W.3d 583, 588 (Mo. App. 2010), where the court declared that proof the second entity is an "employer" for purposes of $\S 287.030 .1 is a "necessary element" of any claim under \S 287.220 .9$ RSMo for second job wage loss benefits. Following Davidson, employee's (alleged) lack of awareness that he needed to prove that Pro Foods was an "employer" is insufficient to convert any evidence so demonstrating into "newly discovered evidence" for purposes of Commission rule 8 CSR 20-3.030(2).

Employee's Motion to Submit Additional Evidence is hereby denied. Because the administrative law judge correctly applied the law consistent with the Davidson case, we defer to her findings and conclusions and hereby adopt them as our own.

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

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued October 8, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of February 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest: