Employee provided, on his claim for compensation, the following address for employer: 167 Indian Prairie Lane, Union, MO 63084. Employee's attorney, Nile Griffiths, explained that, in his experience, his clients often don't know the correct corporate entity for their employer or the correct address to use, so his practice is to call the Division of Workers' Compensation (Division) to verify an employer's address. If, as in this case, the Division is unable to identify the correct address for the employer, Mr. Griffiths conducts an internet search; that is how Mr. Griffiths found the Union, MO, address he provided on employee's claim for compensation.
It is undisputed that the Union, MO, address does not belong to employer. The Division's practice is to send a copy of a claim for compensation to the address supplied.
Injury No.: 11-111943
Employee: Charles Kinney
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in the claim;¹ this occurred here, and as a result, employer did not receive notice of the filing of the claim for compensation from the Division.
Instead, on December 15, 2015, Mr. Griffiths attempted to request information from employer in connection with employee's claim by sending a letter with a copy of the claim for compensation to 520 Kelly Lane, Louisiana, MO, 63353. The copy of the claim for compensation provided with this mailing was not signed or stamped as filed by the Division. Mr. Griffiths was unable to remember, specifically, how he found the Louisiana, MO, address, but he believes it may have turned up in additional internet research after employee informed him he had worked at a facility in Louisiana, MO. This correspondence resulted in a December 18, 2015, letter from James Klingelsmith, who was then serving as employer's workers' compensation claims manager. In his letter, Mr. Klingelsmith acknowledged receipt of the correspondence from Mr. Griffiths, but denied any knowledge of a work injury.
Thereafter, it is uncontested that employer did not contact the Division to inquire about the status of employee's claim or update its address (despite having a copy of a claim for compensation listing the incorrect Union, MO, address), did not file an answer, did not have an attorney enter an appearance on its behalf, did not further correspond with Mr. Griffiths, and ultimately took no action to defend this claim until late 2017.
After more than a year elapsed with no other response or action from employer in connection with the claim, Mr. Griffiths asked the Division to move forward with a default hearing, which was initially set for February 2, 2017. At that setting, Mr. Griffiths provided the Division with two alternate addresses for employer: the Louisiana, MO, address, and 500 Paul Clark Drive, Olean, NY 14760, which was the address listed in the correspondence from Mr. Klingelsmith. As a result, the Division reset the hearing for 60 days later, and on February 15, 2017, sent certified notice of the hearing to both of these addresses. Employer received both notices on February 21, 2017. Additionally, on March 1, 2017, Mr. Griffiths sent a copy of the notice of hearing via certified mail to the Louisiana, MO, address.
After receiving these notices of hearing, employer once again failed to answer or defend the claim. Employer argues this failure should be excused as the product of good faith mistake or confusion on the part of its personnel as to how to proceed. Specifically, employer presents testimony from Elaine Palmer, the workers' compensation claims manager that succeeded Mr. Klingelsmith after employer was sold to another company. On February 24, 2017, Ms. Palmer received the February 15, 2017, notice of hearing from the Division via email attachment from a human resources payroll manager with employer. Ms. Palmer forwarded this email to Nicholas Bruno, another employee with employer who Ms. Palmer typically relied upon to provide her with insurance information; Mr. Bruno responded that he had searched but couldn't find any claims for employee in his records. Ms. Palmer asked Mr. Bruno what she should do, and
¹ Pursuant to 8 CSR 50-2.010(8), "Upon receipt of a Claim for Compensation, the division shall forward a copy of the claim to the employer and its insurer[.]"
MNKOI 0000811697
Injury No.: 11-111943
Employee: Charles Kinney
- 3 -
Mr. Bruno responded that employer would need to contact its relevant insurer at the time of employee's claimed injury.
Ms. Palmer did not do this, and took no other action until receiving an email on March 9, 2017, from Jason Fulton, a health and safety manager with employer, referencing the copy of the notice of hearing Mr. Griffiths had sent to employer. In this communication, Mr. Fulton asked Ms. Palmer who would handle the response and representation in connection with employee's claim. Ms. Palmer believes she called Mr. Fulton after receiving this email, but she can't specifically remember what they discussed, and she admitted that she thereafter took no action to contact the appropriate insurer or request that legal counsel be assigned. Instead, Ms. Palmer assumed Mr. Bruno would contact the insurer and take the appropriate steps to respond to the notice; she vaguely suggested that, unlike Mr. Bruno, she didn't have "access" to the relevant insurer's "system," without elaborating further. *Transcript*, page 67. She also acknowledged, however, that she is the final person in employer's chain-of-command responsible for acting as the liaison with employer's insurance carriers for all workers' compensation matters. Ultimately, no one with employer took responsibility to contact the appropriate insurance carrier, ask an attorney to enter an appearance, contact the Division, ask for a continuance, or any other of the steps one might expect an employer to take after receiving notice of an imminent hearing before the Division. As a result, no one appeared at the hearing of April 3, 2017, to present a defense on behalf of the employer.
The administrative law judge issued the default award on July 12, 2017. Unfortunately, the Division sent the award to the incorrect Union, MO, address, instead of the Louisiana, MO, or Olean, NY, addresses, and did not attempt any alternate notice to employer when the United States Postal Service (USPS) returned this mailing as undeliverable. Nasreen Esmail, Chief Counsel and Deputy Director of the Division, testified it would have fallen to Division personnel with the St. Louis office to inform the Division's central Jefferson City office that the Division's records should be updated with the two additional addresses for employer, but that this clearly was not done. We find Ms. Esmail's testimony to be credible. We find that the relevant personnel with the Division's central Jefferson City office were not informed of the two alternate addresses for employer, and that for this reason, the Division only sent the award to the Union, MO, address.
On October 18, 2017, employee registered the July 12, 2017, award as a judgment in the Circuit Court of Pike County, Missouri, pursuant to § 287.500 RSMo.² On October 19, 2017, employee served a notice of entry of judgment on employer's registered agent in
2 Section 287.500 RSMo provides, in relevant part, as follows: "Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of a memorandum of agreement approved by the division or by the commission or of an order or decision of the division or the commission, or of an award of the division or of the commission from which an application for review or from which an appeal has not been taken, whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment were a final judgment which had been rendered in a suit duly heard and determined by said court."
MNKOI 0000614457
Injury No.: 11-111943
Employee: Charles Kinney
- 4 -
Missouri, CT Corporation; the next day, CT Corporation emailed the notice of entry of judgment to six employees of employer. The correspondence from CT Corporation incorrectly identified the notice as pertaining to a garnishment action; employer's witness Kristina Beyer, a human resources support person, explained (and we so find) that this error prompted a paralegal with employer to forward the mailing to payroll rather than its legal department, or workers' compensation insurer. The correspondence from CT Corporation did, however, include a copy of the notice of entry of judgment. This document stated that the judgment was in connection with a workers' compensation proceeding, and that the judgment was in the sum of 31,632.43 in past medical expenses, 95,436.25 in temporary total disability benefits, and $811.73 per week in lifetime permanent total disability benefits.
The mailing from CT Corporation to employer did not include a copy of the award itself, and the notice of entry of judgment did not identify the date the award was issued, or provide any other detail as to employee's claim or the administrative law judge's findings and conclusions. On November 30, 2017, employer first received a copy of the award as part of a packet of information sent to employer by Matthew Padberg, the attorney employee hired to collect the judgment. Employer thereafter filed its application for review with the Commission on December 20, 2017.
Conclusions of Law
Timeliness of employer's application for review
The first issue we must resolve is whether we are able to take jurisdiction of employer's application for review filed December 20, 2017, where the administrative law judge's award was issued on July 12, 2017, and where § 287.480.1 RSMo requires an application for review to be filed within 20 days of an administrative law judge's award. The Missouri courts have instructed that "[t]he timely filing of an application for review is jurisdictional and requires strict compliance." *Merritt v. Shoney's, Inc.*, 925 S.W.2d 494, 495 (Mo. App. 1996). "Failure to comply with the statutory time for appeal results in a lapse of juris