Gary M. Weibrecht v. Treasurer of Missouri as Custodian of Second Injury Fund

• Court: Supreme Court of Missouri
• Decided: January 10, 2023
• Docket: SC99493
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc GARY M. WEIBRECHT, ) Opinion issued January 10, 2023 ) Appellant, ) ) v. ) No. SC99493 ) TREASURER OF MISSOURI AS ) CUSTODIAN OF SECOND INJURY ) FUND, ) Respondent. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Gary Weibrecht appeals the Labor and Industrial Relations Commission’s

(“Commission”) decision affirming and adopting the administrative law judge’s (ALJ’s)

final award denying his claim for benefits from the Second Injury Fund (“Fund”). On

appeal, Weibrecht challenges the ALJ’s denial of his post-hearing motions to reopen the

record and submit additional evidence after this Court handed down its opinion in Cosby

v. Treasurer of Missouri, 579 S.W.3d 202 (Mo. banc 2019), interpreting section

287.220. 1 Because the Commission did not abuse its discretion in affirming the ALJ’s

1 All statutory references are to RSMo 2016. denial of Weibrecht’s post-hearing motions to reopen the record and submit additional

evidence, the Commission’s decision is affirmed.

Background

In 2013, the legislature amended section 287.220, which governs Fund liability,

“to limit the number of workers eligible for fund benefits because the Fund was

insolvent.” Treasurer of Mo. v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021). Section

287.220.2 retained the pre-amendment framework for Fund liability for compensable

work-related injuries that occurred before January 1, 2014. Id. Section 287.220.3, which

governs compensable work-related injuries that occurred after January 1, 2014,

eliminated Fund liability for permanent partial disability (“PPD”) claims and limited

Fund liability for permanent total disability (“PTD”) claims by requiring that the

claimant’s preexisting disabilities be medically documented, equal at least 50 weeks of

PPD, and meet one of the criteria listed in section 287.220.3(2)(a)a(i)-(iv). Id.

The primary injury giving rise to this case was a lower back injury Weibrecht

suffered in July 2016. After settling his workers’ compensation claim with his employer,

Weibrecht filed a claim against the Fund, alleging his preexisting injuries to his lower

back in 2005 and 2009 and right shoulder in 2014, combined with his primary injury,

rendered him permanently and totally disabled. He asserted the Fund was liable under

section 287.220.2 for PTD benefits or, in the alternative, PPD benefits. A hearing was

held before the ALJ in May 2019, after which the ALJ closed the record and ordered

proposed awards to be filed within 30 days.

2 Before the ALJ issued her final award, this Court handed down its opinion in

Cosby v. Treasurer of Missouri, 579 S.W.3d 202 (Mo. banc 2019). Prior to Cosby, the

court of appeals had held in Gattenby v. Treasurer of Missouri, 516 S.W.3d 859, 862

(Mo. App. 2017), that section 287.220.3 applied only when the preexisting and primary

injuries both occurred after January 1, 2014. But Cosby reached a different interpretation

of section 287.220.3. Under the statutory definition of “injury” and the plain and

ordinary language of section 287.220, Cosby found subsection 2 applies when all injuries

occurred prior to January 1, 2014, and subsection 3 applies when any injury occurred

after January 1, 2014. 579 S.W.3d at 206-08. Cosby further directed that, to the extent

Gattenby holds otherwise, it “should no longer be followed.” Id. at 208 n.5.

After conclusion of the hearing but before the ALJ’s final award, Weibrecht filed a

motion to reopen the record for a supplemental hearing, contending that Cosby changed

the law and that his claim was now governed by section 287.220.3 rather than section

287.220.2. Weibrecht averred he had prepared evidence only for a claim under section

287.220.2 based on the court of appeals’ decision in Gattenby. He argued that, under the

circumstances, the ALJ had the authority to reopen the record and hold a supplemental

hearing prior to issuing an award. The Fund posited that, while the ALJ has the authority

to reopen the record in certain situations, doing so was not warranted under the facts of

this case and Weibrecht should not be given a “second bite” at proving his claim under

section 287.220.3.

On July 2, 2019, the ALJ overruled Weibrecht’s motion , “The parties did not cite

statutory authority allowing the ALJ to reopen the record after the hearing was

3 concluded. After applying strict construction, [the] ALJ found no statutory basis

allowing her authority to reopen the record.”

Weibrecht filed a motion to reconsider, citing section 287.610.5 and 8 C.S.R.

50-2.010 as authority for the ALJ to take additional post-hearing evidence before

rendering a decision. He also requested an opportunity to make an offer of proof as to the

evidence he would submit at an additional hearing. The ALJ again overruled

Weibrecht’s motion, this time without explanation. Weibrecht then filed a third motion

again asking the ALJ to reopen the record for the purposes of making an offer of proof

and submitting additional evidence for the ALJ’s consideration. The ALJ once again

overruled his motion without explanation and issued her final award denying Weibrecht

compensation.

In her award, the ALJ determined that, because the primary injury in this case

occurred after January 1, 2014, section 287.220.3 applied. She concluded Weibrecht’s

PPD claim was not compensable and denied his PTD claim because he had not proven

any of his preexisting disabilities equaled at least 50 weeks of PPD or met any of the

criteria listed in section 287.220.3(2)(a)a(i)-(iv). Weibrecht appealed to the Commission,

challenging the ALJ’s rulings on his requests to reopen the record and the final award.

The Commission affirmed and adopted the ALJ’s final award with a supplemental

opinion, finding it was supported by competent and substantial evidence and was made in

accordance with the law. The Commission also affirmed the ALJ’s decisions not to

4 reopen the record “for reasons cited in [the ALJ’s] July 2, 2019, minute entry.”

Weibrecht now appeals the Commission’s decision. 2

Standard of Review

The Commission’s decision must be “supported by competent and substantial

evidence upon the whole record.” Mo. Const. art. V, sec. 18. On appeal, the

Commission’s factual findings shall be conclusive and binding in the absence of fraud,

and no additional evidence shall be heard. Section 287.495.1. This Court also defers to

the Commission’s determinations regarding the credibility of witnesses and the weight

given to conflicting evidence. Annayeva v. SAB of TSD of St. Louis, 597 S.W.3d 196,

198 (Mo. banc 2020). On appeal, this Court:

shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1(1)-(4).

2 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. 5 Analysis

The issue in this case is whether the Commission erroneously affirmed the ALJ’s

overruling of Weibrecht’s post-hearing motions to reopen the record and submit

additional evidence. Weibrecht argues the ALJ abused her discretion by overruling those

motions. He contends this Court’s decision in Cosby changed his burden of proof, which

he argues constituted “good cause” under 8 C.S.R. 50-2.010(11) 3 to reopen the record.

Without the opportunity to submit additional evidence, Weibrecht disputes he had a full

and complete hearing.

An ALJ’s evidentiary decisions affirmed by the Commission will not be

overturned absent an abuse of discretion. Otwell v. Treasurer of Mo., 634 S.W.3d 850,

857 (Mo. App. 2021). An abuse of discretion occurs when a decision “is clearly against

the logic of the circumstances and is so unreasonable as to indicate a lack of careful

consideration.” Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010) (internal

quotations omitted).

“Workers’ compensation law is entirely a creature of statute.” Templemire v. W &

M Welding, Inc., 433 S.W.3d 371, 381 (Mo. banc 2014). In interpreting it, this Court

3 8 C.S.R. 50-2.010 (11) provides:

(11) All parties shall be prepared to introduce all relevant evidence when the case is heard. Continuances to file additional evidence will only be granted for good cause shown, when the administrative law judge who has conducted the hearing decides that additional evidence is necessary for a full and complete hearing.

6 “must ascertain the intent of the legislature by considering the plain and ordinary

meaning of the terms.” Id. Sections 287.220.2 and 287.220.3, as amended in 2013, went

into effect January 1, 2014. Weibrecht’s contention that Cosby “changed his burden of

proof” is incorrect. Rather, section 287.220.3, by its plain language, has governed since

its January 1, 2014 effective date. While Gattenby previously interpreted sections

287.220.2 and 287.220.3, 4 prior to Weibrecht’s hearing, this Court had yet to address the

interpretation of sections 287.220.2 and 287.220.3. In fact, at the time of Weibrecht’s

hearing, Cosby was pending before this Court. 5 Because the issue continued to be

litigated in Cosby and other cases, nothing precluded Weibrecht from making alternative

arguments under both sections for Fund liability pursuant to the plain language of the

statute. Indeed, nothing prohibited Weibrecht from presenting evidence under both

sections 287.220.2 and 287.220.3 at his hearing. It was not clearly against the logic of

the circumstances and so unreasonable to indicate a lack of careful consideration for the

ALJ to conclude there was no good cause to reopen the record when this Court had not

previously interpreted sections 287.220.2 and 287.220.3 and nothing precluded

4 Generally, changes in decisional law apply retrospectively. Sumners v. Sumners, 701 S.W.2d 720, 723 (Mo. banc 1985). This Court, however, has authority to declare whether such decisions apply retrospectively or prospectively. Wainwright v. Stone, 414 U.S. 21, 23-24 (1973). Retrospective or prospective application need not be addressed, however, because Weibrecht never raised this issue before the ALJ, the Commission, or this Court. “Appellate courts are merely courts of review for trial errors, and there can be no review of a matter which has not been presented to or expressly decided by the trial court.” City of Aurora v. Spectra Comms. Grp., LLC, 592 S.W.3d 764, 789 (Mo. banc 2019). 5 This Court granted transfer in Cosby on July 2018; it was argued before this Court in October 2018 and handed down June 25, 2019. Weibrecht’s hearing was in May 2019. 7 Weibrecht, at the time of his hearing, from making alternative arguments under the plain

language of the statute. Accordingly, the ALJ did not abuse her discretion.

Weibrecht alternatively asserts the Commission erred in affirming the ALJ

overruling his motions to reopen the record and submit additional evidence because the

ALJ never reached the merits of his motions to consider whether there was good cause

but, rather, erroneously concluded she lacked any statutory authority to reopen the record.

Weibrecht is correct that, when the ALJ initially overruled his post-judgment

motion to reopen the record and submit additional evidence, the ALJ did not exercise her

discretion to sustain or overrule his motion but, rather, erroneously believed she lacked

authority to sustain the motion. In her ruling, she expressly stated the parties did not cite

authority allowing the ALJ to reopen the record and she found “no statutory basis

allowing her authority” to do so. Thereafter, Weibrecht filed two successive motions to

reconsider, requesting the ALJ reopen the record to allow him to make an offer of proof

and submit additional evidence and citing 8 C.S.R. 50-2.010(11). Throughout briefing

with respect to Weibrecht’s motions, the Fund agreed with Weibrecht that the ALJ had

such authority but argued Weibrecht failed to show a basis for exercising that authority in

this case. When the ALJ overruled Weibrecht’s subsequent motions, the ALJ did not

repeat that she lacked authority to reopen the record. There is no evidence the ALJ’s later

rulings were a product of an erroneous belief she lacked authority.

It is presumed the ALJ ultimately exercised her discretion to rule on Weibrecht’s

motion and simply determined he failed to establish good cause for reopening the record

under 8 C.S.R. 50-2.010(11). See Tate v. Dep’t of Soc. Servs., 18 S.W.3d 3, 6 (Mo. App.

8 2000) (“An administrative law judge’s decision is presumed correct and the burden in

challenging such a decision is heavy.”) As explained above, it would be reasonable for

the ALJ to conclude there was no good cause to reopen the record and submit additional

evidence. Weibrecht’s argument fails. The Commission correctly affirmed the ALJ’s

rulings.

Finally, Weibrecht asserts that, in affirming the overruling of Weibrecht’s post-

hearing motions to submit additional evidence, the Commission violated “basic principles

of fairness.” Weibrecht relies on Dietz v. Humphreys, 507 S.W.2d 389 (Mo. banc 1974),

and Tharp v. St. Luke’s Surgicenter-Lee Summit, LLC, 587 S.W.3d 647 (Mo. banc 2019).

Both cases, however, are distinguishable from the instant case.

In Dietz, the circuit court based its ruling on this Court’s two most recent cases

interpreting joint account statutes. 507 S.W.2d at 391-92. While Dietz was pending on

appeal, this Court decided a case holding the prior construction of the joint account

statutes—the construction applied by the circuit court—was erroneous. Id. at 391. Dietz

declined to finally dispose of the case, choosing instead to remand the case for further

proceedings. Id. at 392. This Court reasoned “it would be improper and unfair to the

parties, to decide this case on the record made when all the parties . . . were operating

pursuant to the rule announced in the [older] cases.” Id.

Unlike Dietz, here, Cosby did not overrule prior opinions from this Court. Rather,

prior to Cosby, the interpretation of sections 287.220.2 and 287.220.3 was not settled.

Dietz is not controlling.

9 In Tharp, this Court set forth the elements of a prima facie case for negligent

credentialing for the first time. 587 S.W.3d at 663. Because Tharp did not know what

evidence was required to make a submissible case for negligent credentialing prior to his

appeal, the case was remanded for a new trial. Id. at 662-63. In reaching its conclusion,

this Court applied a two-part test to determine if failing to remand would violate the

“basic principles of fairness.” Id. at 659. This test requires, first, “the plaintiff must

actually possess sufficient evidence to make a submissible case upon retrial.” Id.

“Second, the plaintiff must convince the appellate court he or she was justified in failing

to present the evidence during the trial.” Id.

Here, unlike in Tharp, Weibrecht should have been aware of what evidence was

required to make a submissible case for PTD. The plain language of sections 287.220.2

and 287.220.3 set forth the necessary evidence to make a submissible claim. Tharp is not

controlling. Weibrecht’s argument fails.

Conclusion

The Commission did not abuse its discretion in affirming the overruling of

Weibrecht’s post-hearing motions to reopen the record and submit additional evidence.

The Commission’s decision is affirmed.

______________________________ Mary R. Russell, Judge

Wilson, C.J., Powell, Fischer, Ransom and Draper, JJ., concur; Breckenridge, J., dissents in separate opinion filed.

10 SUPREME COURT OF MISSOURI en banc GARY M. WEIBRECHT, ) ) Appellant, ) ) v. ) No. SC99493 ) TREASURER OF MISSOURI AS ) CUSTODIAN OF SECOND ) INJURY FUND, ) ) Respondent. )

DISSENTING OPINION

I dissent from the principal opinion because I do not concur in its analysis and

conclusion. I agree with the principal opinion that the administrative law judge (ALJ) had

authority to sustain Gary Weibrecht’s motions to reopen the record so he could present

evidence to prove his claim against the Second Injury Fund under section 287.220.3. 1 In

contrast to the holding of the principal opinion, however, I would find the ALJ’s overruling

of Mr. Weibrecht’s motions was an abuse of the ALJ’s discretion because justice and

fairness necessitates a full and complete hearing on Mr. Weibrecht’s claim against the fund.

Accordingly, I do not concur in the principal opinion’s holding that the ALJ did not abuse

1 All statutory references are to Revised Statutes of Missouri 2016. her discretion by overruling Mr. Weibrecht’s motion to reopen the record and instead,

would vacate the Labor and Industrial Relations Commission’s decision and remand the

case to the commission with instructions for it to remand the case to the ALJ for the ALJ

to sustain Mr. Weibrecht’s motion and receive additional evidence regarding his claim.

Mr. Weibrecht presented his case before the ALJ in reliance on the only judicial

interpretation of subsections 2 and 3 of section 287.220 available at that time – Gattenby

v. Treasurer of Missouri, 516 S.W.3d 859 (Mo. App. 2017). Consistent with the court of

appeals’ interpretation of section 287.220 in Gattenby, Mr. Weibrecht presented his case

pursuant to subsection 2 of section 287.220. Before the ALJ issued her decision, however,

this Court handed down Cosby v. Treasurer of Missouri, 579 S.W.3d 202 (Mo. banc 2019).

In that decision, the Court overruled Gattenby and clarified cases like Mr. Weibrecht’s, in

which the primary work-related injury occurred after January 1, 2014, fall under subsection

3 of section 287.220. Id. at 207.

In light of Cosby, Mr. Weibrecht filed a motion to reopen the record and submit

additional evidence relevant to sustaining his burden of proof under subsection 3. The ALJ

overruled the motion in a July 2, 2019 minute entry that read: “The parties did not cite

statutory authority allowing the ALJ to reopen the record after the hearing was concluded.

After applying strict construction, ALJ found no statutory basis allowing her authority to

reopen the record.” In response to that ruling, Mr. Weibrecht filed a motion to reconsider

in which he asserted section 287.610.5 and 8 C.S.R. 50-20.010 provided authority for the

ALJ to receive and consider additional evidence before rendering a decision. Additionally,

he requested he be given the opportunity to make an offer of proof of the evidence he

2 intended to present if the record were reopened. The ALJ overruled the motion to

reconsider without stating a basis for the ruling. Mr. Weibrecht then filed a third motion,

requesting the ALJ reopen the record to allow him to make an offer of proof and to submit

additional evidence in support of his claim. The ALJ again overruled the motion without

stating a basis for the ruling.

Thereafter, the ALJ issued an award finding section 287.220.3 applied to

Mr. Weibrecht’s July 2016 injury and his evidence was insufficient to prove he was

permanently and totally disabled because he did not prove any of his preexisting injuries

equaled at least 50 weeks of permanent partial disability or met the criteria of section

287.220.3(2)(a)a(i)-(iv). Mr. Weibrecht appealed the ALJ’s decision to the commission,

which affirmed the ALJ’s decisions not to reopen the record for the reasons stated in the

ALJ’s July 2, 2019 minute entry. It also affirmed and adopted the ALJ’s final award, which

it found was supported by competent and substantial evidence.

Contrary to the decision of the commission, the ALJ had authority under 8 C.S.R.

50-2.010(11) to sustain Mr. Weibrecht’s motion so long as he showed “good cause” to file

additional evidence and the additional evidence is necessary for a full and complete

hearing. I would find the overruling of Gattenby – the only judicial interpretation of section

287.220.2-.3 at the time of Mr. Weibrecht’s hearing – is “good cause” for his failure to

present evidence that was irrelevant to his claim under Gattenby’s interpretation of the

statute. Evidence relating to subsection 3 of section 287.220 was not relevant when

Mr. Weibrecht’s claim was heard, and he acted in reliance on the only judicial

interpretation of section 287.220 available. Justice requires that Mr. Weibrecht be allowed

3 to present evidence to satisfy the governing legal standard as clarified after his case was

heard. Under the circumstances, a full and complete hearing regarding Mr. Weibrecht’s

entitlement to second injury fund benefits can be had only if Mr. Weibrecht is permitted to

file additional evidence relevant to that claim. I do not agree with the principal opinion

that this Court’s holdings in Dietz v. Humphreys, 507 S.W.2d 289 (Mo. banc 1974), and

Tharp v. St. Luke’s Surgicenter-Lee Summit, LLC, 587 S.W.3d 647 (Mo. banc 2019), can

properly be distinguished.

Because Mr. Weibrecht was not afforded a full and complete hearing, the Court

should vacate the commission’s decision and remand the case with instructions that the

commission, in turn, remand the case to the ALJ to sustain Mr. Weibrecht’s motion to

reopen the record under 8 C.S.R. 50-2.010(11).

___________________________________ PATRICIA BRECKENRIDGE, JUDGE