Eugene Peacock v. North American Tie & Timber

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 10-114063

**Employee:** Eugene A. Peacock

**Employer:** North American Tie & Timber (settled)

**Insurer:** National American Insurance Company (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

On November 10, 2016, an administrative law judge (ALJ) issued an award with respect to the employee's claim against the Second Injury Fund (SIF) in Injury No. 10-114063. The employee settled his claim against the employer/insurer in this matter in a Stipulation for Compromise Settlement approved on December 22, 2014.¹

The parties asked the ALJ to determine the following issues:

- Occupational Disease

- Notice

- Statute of Limitations

- Medical Causation

- Liability of the SIF for permanent partial disability or permanent total disability.

The ALJ denied all compensation finding that the employee failed to satisfy his burden of proving by competent medical evidence a direct medical causal connection between any alleged repetitive occupational exposure and his bilateral carpal tunnel syndrome condition. Based on the ALJ's ruling on the issue of occupational disease and medical causation, he found the issues of notice, statute of limitations, and liability of the SIF moot.

Having reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record, we find the award of the administrative law judge supported by competent and substantial evidence and made in accordance with the

¹ Employee's Exhibit 17, Transcript, 734.

Injury No.: 10-114063

Employee: Eugene A. Peacock

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Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the ALJ's award and decision with this supplemental opinion.

**Discussion**

The employee separately filed two other claims against the employer/insurer: Injury No. 09-108576, alleged an injury on September 23, 2009, in which railroad ties crushed the employee's left leg; Injury No. 10-55756, alleged a neck injury sustained on June 28, 2010, while the employee was throwing a cable overhead. On December 22, 2014, the employee settled both claims with employer/insurer.²

On August 8, 2016, the ALJ conducted a consolidated hearing to take evidence relating to the employee's three remaining claims against the SIF. On November 10, 2016, the ALJ issued separate awards resolving the employee's claims against the SIF with respect to Injury No. 09-108576, Injury No. 10-055756, and Injury No. 10-114063. The ALJ combined his three separate awards in a single document titled "Final Award" issued November 10, 2016. We take administrative notice of Division records showing that the Division individually mailed three separate copies of the ALJ's November 10, 2016, Award to the parties, each accompanied by a cover letter that referenced only one of the three injury numbers. (See attached)

The employee's application for review, filed on November 18, 2016, references only Injury No. 10-114063 and Date of Injury 08-31-10. The application alleges the ALJ erred in finding that the employee is not permanently and totally disabled. However, the ALJ's award in Injury No. 10-114063 included no findings related to the nature and extent of the employee's disability. Rather, the ALJ specifically found in his award in Injury No. 10-114063 that the issue of the SIF's liability was moot.

We find, as a factual matter, that the employee failed to appeal the ALJ's award in either Injury No. 09-108576 or Injury No. 10-055756.³ Employee's attorney's brief and oral argument attempt to raise arguments relating to the nature and extent of the employee's disability that are not included in any findings in the award now before us for review.

**Conclusions of Law**

Section 287.480 RSMo states, in pertinent 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. . . and shall make an award and file it in like manner as specified in section 287.470 (emphasis added).

² Transcript, 727, 730.

³ We note the ALJ's awards in both Injury No. 09-108576 and Injury No. 10-055756 included an assessment of permanent partial disability against the SIF.

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Injury No.: 10-114063

A fundamental 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. *Farmer v. Barlow Truck Lines*, 979 S.W. 2d 169 (Mo. banc 1998).

Our authority extends only to issues decided by the award that is subject of the employee's application for review. By this award, we affirm the ALJ's award denying all compensation based on a lack of competent and substantial evidence on the issues of occupational disease and medical causation. We lack jurisdiction to address the issue of the SIF's liability for permanent disability in the context of separate awards not referenced in the employee's application for review.

We affirm the ALJ's award denying all compensation. We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued November 10, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 13th day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

Secretary

4 See *Stonecipher v. Poplar Bluff R1 Sch. Dist*, 205 S.W.3d 326 (Mo App. 2006).

Injury No.: 10-114063

Employee: Eugene A. Peacock

I have reviewed and considered all of the competent and substantial evidence on the whole records. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's denial of compensation in this case.

As noted in the majority's opinion, the employee filed three separate claims against the same employer/insurer, designated by the Division as Injury Nos. 09-108576, 10-055756, and 10-114063. On December 22, 2014, the employee settled all three claims with the employer/insurer.

The ALJ jointly heard the employee's remaining claims against the Second Injury Fund in a hearing held on August 8, 2016. At the inception of the August 8, 2016, hearing, the ALJ announced, "I will be issuing one award in the cases (emphasis added)." Transcript, 6. On November 10, 2016, the ALJ issued a single "Final Award."

The employee's application for review, filed November 18, 2016, cites injury number 10-114063 and lists 10-31-10 as the date of injury. It further includes the following statement as the basis for employee's appeal:

> The ALJ decision is incorrect for the reason that the Award states that the opinions of the vocational expert, Donna Abrams, and one of the treating physicians, Dr. Yingling, support the notion that the Employee is not permanently and totally disabled.

The above statement clearly demonstrates the employee's intent to appeal findings in the ALJ's November 10, 2016, Final Award relating to the nature and extent of the employee's permanent disability in connection with Injury Nos. 09-108576 and 10-055756. See *Donald Payne v. Treasurer of the Second Injury Fund*, 417 S.W.3d 834 (Mo. App. 2014).

The SIF made no objection to the form of employee's application for review. SIF's counsel addressed the ALJ's finding relating to Injury Nos. 09-108576 and 10-055756 both in her brief and at oral argument. SIF's counsel raised no issues relating to the Commission's jurisdiction or authority to review findings in the ALJ's Final Award relating to all three injury claims until after oral argument, and only then in response to the Commission's invitation to do so.

"Due process, in Missouri workers' compensation cases and elsewhere, contemplates the opportunity to be heard at a meaningful time and in a meaningful manner." *Id.* citing *Nolan v. Degussa Admixtures, Inc.*, 246 S.W.3d 1, 5 (Mo. App. 2008). The SIF clearly understood that the employee intended to raise the issue of the nature and extent of permanent disability sustained in Injury Nos. 09-108576 and 10-055756, in his application for review. The parties have fully briefed and argued this issue. The Commission's review of the issue on appeal violates no party's due process rights.

Injury No.: 10-114063

Employee: Eugene A. Peacock

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Our state's appellate courts have instructed:

In Workers' Compensation proceedings, substantial compliance with the provisions of the Compensation Act is ordinarily sufficient. 'Procedural rights are considered as subsidiary and substantial rights are to be enforced at the sacrifice of procedural formality. Thus the claim or application for hearing contemplated by the workers' compensation act does not have to contain the usual elements of a petition in the civil action.' *Loyd v. Ozark Elec. C-Op., Inc.*, 4 S.W.3d 579, 586 (Mo. App. 1999) citing *Groce v. Pyle*, 315 S.W.2d 482, 492 (Mo. App. 1958).

The employee complied with the provisions of § 287.480 that require an application for review to be made to the commission "within twenty days from the date of the award (emphasis added)." I respectfully disagree with the majority's refusal to review all findings included in the ALJ's November 10, 2016, Final Award relevant to the issue of whether the employee is permanently and totally disabled.

Curtis E. Chick, Jr., Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012 www.labor.mo.gov/DWC

NOVEMBER 10, 2016

09-108576

Scan Copy

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

**DIVISION OF WORKERS' COMPENSATION**

Please visit our website at www.labor.mo.gov/DWC

MC-142 (06-15) AMARD ON HEARING NLF Relay Missouri: 800-735-2966

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