Hogue v. Minact, Inc.

892 S.W.2d 758, 1995 Mo. App. LEXIS 3, 1995 WL 1203
CourtMissouri Court of Appeals
DecidedJanuary 3, 1995
DocketNo. 65908
StatusPublished
Cited by2 cases

This text of 892 S.W.2d 758 (Hogue v. Minact, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogue v. Minact, Inc., 892 S.W.2d 758, 1995 Mo. App. LEXIS 3, 1995 WL 1203 (Mo. Ct. App. 1995).

Opinion

GARY M. GAERTNER, Judge.

The Treasurer of the State of Missouri, acting on behalf of the Second Injury Fund (“the Fund”), appeals from the award of the Labor and Industrial Relations Commission (“the Commission”) awarding respondent Melvena B. Hogue (“employee”) weekly permanent total disability benefits for the remainder of her life. We affirm.

On February 4, 1988, employee sustained an injury to her left wrist, arm and shoulder arising out of and in the course of her employment with Minact, Inc. (“employer”). Said injury eventually required carpal tunnel surgery. In May of 1989, employee’s treating physician released her to work, but with the restriction that she not lift anything weighing over ten pounds or use any vibrating tool. Employee could not get her job back, and filed a claim for .compensation against employer and the Fund for permanent disability.

A hearing was held before an administrative law judge (“ALJ”) on November 9,1992. At the hearing employee testified to numbness, shaking, and an inability to hold objects in her left hand. Employee and employer stipulated that employee sustained permanent partial disability of 25 per cent with reference to her left elbow, and that employer was liable to that extent.

Evidence was entered concerning various injuries and ailments suffered by employee prior to her February 4, 1988, accident. It was determined that employee seriously injured her neck, wrist, and collarbone in a ear accident; underwent lung surgery; had heart problems and high blood pressure; and sustained neck injuries from an assault.

On December 28, 1992, the ALJ issued findings of fact, conclusions of law, and an award of permanent total disability. The ALJ found employee’s earlier injuries and medical problems amounted to a preexisting industrial disability. The ALJ also found the combination of employee’s primary February 4,1988, injury, her preexisting industrial disability, and her advanced age (66 years old at the time of the hearing), caused her to be permanently and totally disabled.

Pursuant to this finding of permanent total disability, the ALJ ordered employer and the Fund to pay employee permanent partial disability benefits. Employer was found liable for $161.89 per week for 52 and one half weeks, beginning May 8, 1989, the date permanent partial benefits began accruing. The Fund was found liable for $27.17 per week for 52 and five sevenths weeks, also beginning May 8, 1989. The ALJ further ordered the Fund to pay employee permanent total disability benefits of $189.06 per week for the duration of employee’s life, beginning May 12,1990. This award was subject to a lien of 25 per cent in favor of employee’s attorney for legal services rendered.

The Fund appealed to the Commission. On March 17,1994, the Commission affirmed, incorporating the ALJ’s award by reference.1 The main opinion, signed by Commissioner Philip M. Barry, affirmed the ALJ’s finding of liability on the Fund and the award of permanent and total disability benefits.

In a separate opinion, Commission Chairperson Henry A. Panthiere concurred with Mr. Barry in finding employee permanently and totally disabled. However, Mr. Panthi-ere also dissented in part, stating, “I adamantly disagree ... that the Second Injury Fund has any liability in this case ... the [760]*760overwhelming weight of the evidence supports a finding that the claimant’s preexisting conditions were not industrially disabling.”

In another separate opinion, Commissioner Robert Thane Johnson also concurred in part and dissented in part. Mr. Johnson agreed with Mr. Barry that employee’s injuries were permanent. He also agreed with that portion of the award finding liability on the part of the Fund, finding “no credible evidence” that employee “should recover solely from the employer/insurer.” However, Mr. Johnson further asserted the following:

I concur in the decision because I believe the employee is deserving of some permanent partial disability and I agree that if the claimant was permanently and totally disabled, the Second Injury Fund bears some liability due to preexisting industrial liabilities. I do not believe, however, that she is permanently and totally disabled and I dissent from that portion of the award. (Emphasis in original.)

In sum, two members of the Commission (Barry and Panthiere) agreed employee was permanently and totally disabled, and two members (Barry and Johnson) believed employee suffered from preexisting industrial disabilities,-warranting liability on the Fund’s part. This appeal ensued.

The Fund argues one point on appeal.2 The Fund contends the Commission’s award of permanent total disability benefits was outside and/or in excess of the Commission’s powers and void on its face, because the award was signed by only one member of the Commission and the concurring opinions of the other two members fail to support the award. In other words, the Fund asserts that a quorum of the Commission’s members failed to agree to the award. Therefore, according to the Fund, the Commission’s award must be vacated.

On appeal, we examine the record in the light most favorable to the Commission’s award. Young v. Handy Andy, 831 S.W.2d 947, 948 (Mo.App.E.D.1992). This Court may modify, reverse, remand for rehearing, or set aside workers’ compensation awards only if the Commission acted without or in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. RSMo § 287.495.1 (1993); George v. Shop ’N Save Warehouse Foods, 855 S.W.2d 460, 462 (Mo.App.E.D.1993).

The Commission consists of three members, any two of which constitute a quorum. RSMo § 286.010 (1993); Terrell v. Bd. of Educ. of St. Louis, 871 S.W.2d 20, 22 (Mo.App.E.D.1993). An award with the valid signature of only one commissioner does not constitute the quorum needed to render a decision. Williams v. Marcus, 652 S.W.2d 893, 894 (Mo.App.E.D.1983); Grassmuck v. Autorama Auto Equipment, 659 S.W.2d 264, 266 (Mo.App.E.D.1983).

Few decisions have addressed this quorum requirement, and none provide guidance on the precise question raised by the Fund. The Fund cites Graphenreed v. Ford Motor Co., 482 S.W.2d 68, 70 (Mo.App.St.L.D.1972), as support for its argument. However, the facts and conclusion in that ease are easily distinguishable from those in the immediate case. In Graphenreed, the St. Louis District affirmed both the Commission’s award affirming the ALJ and its subsequent order denying a motion to vacate this award. The award was signed by two Commissioners, with the third Commissioner dissenting. The order was signed by two Commissioners — one of whom had originally dissented from the award — with another Commissioner dissenting.

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Bluebook (online)
892 S.W.2d 758, 1995 Mo. App. LEXIS 3, 1995 WL 1203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogue-v-minact-inc-moctapp-1995.