Jones v. LICO STEEL

280 S.W.3d 713, 2009 Mo. App. LEXIS 156, 2009 WL 305973

• Court: Missouri Court of Appeals
• Decided: February 10, 2009
• Docket: WD 69637
• Status: Published

Opinions

HAROLD L. LOWENSTEIN, Judge.

Paul Jones, an employee of Lico Steel, was injured as a result of an accident in the workplace. His claim for workers’ compensation was heard before an administrative law judge of the Division of Workers’ Compensation (“the Division”). The Division found that Jones was permanently and totally disabled solely as a result of the March 10, 2004 accident and awarded Jones past and future medical benefits, disability benefits, and costs. Lico timely filed an application for review with the Labor and Industrial Relations Commission (“the Commission”). Lico asserted the ALJ’s decision was erroneous because:

1. The evidence does not support a finding of an award of permanent total disability against the Employer and the Insurer based on the last accident alone. The finding of the Administrative Law Judge is contrary to the weight of the medical and expert opinions in evidence.

2. The evidence does not support an award of future medical as the Claimant is not entitled to future medical based on the expert and medical evidence.

3. The evidence does not support an award for past medical of $9,575.46.

4. The evidence and the law do not support an award of interest on past medical as found by the Administrative Law Judge.

Jones moved to strike the application for review asserting the application was not in compliance with Mo Code Regs. Ann. tit. 8, § 20-3.030(3)(A) (2003). The Commission, without explication, granted the motion to strike the application for failure to comply with the Rule. This appeal followed.

This court reviews the decisions of the Commission that are “clearly interpretations or applications of the law for correctness without deference to the Commission’s judgment.” Taluc v. Trans World Airlines, 34 S.W.3d 831, 833 (Mo.App.2000) (internal quotations omitted). “Where evidentiary facts are not disputed, the Commission’s award becomes a question of law.” Id. (internal notation omitted.)

In the sole issue on appeal, Lico asserts that that Commission misapplied the law in dismissing the appeal in that the assignments of error in the application for review complied with the Rule. The Rule states:

An applicant for review of any final award, order or decision of the administrative law judge shall state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. It shall not be sufficient merely to state that the decision of the administrative law judge on any particular issue is not supported by competent and sufficient evidence.

Mo Code Regs. Ann. tit. 8, § 20-3.030(3)(A) (2003)

In his motion to strike the application, Jones relied on Taluc v. Trans World Airlines, 34 S.W.3d 831 (Mo.App.2000), in which the southern district of this court found an employer’s assignments of error in the application that simply asserted, “[t]he Administrative Law Judge erred in his conclusion” was insufficient under the Rule. Id. at 833. Specifically, the court found that “[tjhere are no specific allegations as to how the findings or conclusions of the administrative law judge on any of the controlling issues are not properly supported.” Id.

Lico would distinguish its allegations from those in Taluc by asserting that its assignments of error stated the reasons for each error. Lico likens its assignments of error to those in Isgriggs v. Pacer Industries, 869 S.W.2d 295 (Mo.App.1994). In Isgriggs, the claimant asserted two points of error:

1. That the Administrative Law Judge failed to find pre-existing industrial disability where competent and substantial evidence of disability was presented.

2. That the award of the Administrative Law Judge finding only permanent partial disability is against the weight of the evidence. Competent medical testimony indicated that the employee was permanently and totally disabled ...

Id. at 296. The Commission dismissed the appeal for violations of the Rule. On appeal, the eastern district found that the first assignment of error lacked the required specificity, but the second assignment of error, “while not an exemplar of specificity, sufficiently stated the reason claimant believed the Administrative Law Judge’s findings and conclusions on the controlling issues were not properly supported.” Id.

Under either Taluc or Isgriggs, Lico’s third and fourth assignments of error are clearly insufficient. Under the plain language of the Rule, merely asserting that the evidence and the law do not support the decision, without more, does not provide the required specificity. The question, then, becomes whether the allegations that a decision is “contrary to the weight of the medical and expert opinions in evidence” and “the evidence does not support an award ... based on the expert and medical evidence” provides the required specificity.

This court first notes that the bulk of the evidence in this case was expert and medical evidence. In addition to medical bills and his own deposition, the claimant’s evidence consisted of medical records, a rating report from a medical doctor, the deposition of two doctors, and the report of a vocational rehabilitation consultant. The employer presented the deposition testimony of three doctors. Asserting that a decision is not supported by or is against the weight of medical and expert testimony, in such a case, does little more than assert that the decision was not supported by sufficient and competent evidence.

Treating the second allegation of error in Isgriggs, which the court found was “not an exemplar of specificity,” as a reasonable approximation of the minimum specificity required, this court finds Lico’s assignments of error more akin to those of Taluc than the second allegation in Isgriggs. Lico’s application did little more than assert that the decision of the ALJ was against the weight of the evidence or not supported by the evidence, patently insufficient under the Rule.

The Commission did not err in dismissing Lico’s application for review for failure to comply with Mo Code Regs. Ann. tit. 8, § 20-3.030(3)(A) (2003). Judgment affirmed.

Judge DANDURAND concurs in the majority.

Judge SMART concurs in separate concurring opinion.