State ex rel. Jim Walter Plastics v. Sihnhold

Missouri Court of Appeals

State ex rel. Jim Walter Plastics v. Sihnhold

629 S.W.2d 668, 1982 Mo. App. LEXIS 3823

CourtMissouri Court of Appeals

DecidedFebruary 23, 1982

DocketNo. 44467

StatusPublished

Cited by2 cases

This text of 629 S.W.2d 668 (State ex rel. Jim Walter Plastics v. Sihnhold) 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

State ex rel. Jim Walter Plastics v. Sihnhold, 629 S.W.2d 668, 1982 Mo. App. LEXIS 3823 (Mo. Ct. App. 1982).

Pincite

Opinion

CRIST, Judge.

Preliminary writ of prohibition issued by a circuit judge and then quashed by the same circuit judge. We affirm.

Donald Fowler (claimant) filed a Worker’s Compensation Claim on November 20, 1978 alleging work related injury “about January, 1969.” Employer and insurer assert the claim was barred by claimant’s failure to comply with § 287.420, RSMo. 1969 (notice of injury to employer by employee) and § 287.430, RSMo. 1969 (one year statute of limitations with provision for filing claim one year after the employer files a report of injury).

The Worker’s Compensation Claim was set for hearing on March 20, 1980. On March 11, 1980, our Supreme Court handed down DeRousse v. PPG Industries, Inc., 598 S.W.2d 106 (Mo.banc 1980). DeRousse said mere failure or neglect of employer to file a report of injury required by § 287.380, [669]*669RSMo. 1978 did not toll the statute of limitations.

On March 18, 1980, claimant filed a motion for continuance of the March 20, 1980 hearing date and moved the respondent (administrative law judge) to require employer to file a report of injury. On June 6, 1980, administrative law judge ordered appellants (employer/insurer) to file a report of injury or suffer the penalty of having their pleading stricken. Employer/insurer filed a petition for writ of prohibition in the circuit court to restrain administrative law judge from enforcing the order requiring the filing of the report of injury. The trial court issued its preliminary writ and then quashed its preliminary order. Employer/insurer appealed.

Prohibition is not a remedy for all difficulties. It cannot be used as a substitute for appeal. State ex rel. Speer v. Grimm, 599 S.W.2d 67, 69 (Mo.App.1980). It is to be used only in extreme cases when there is no other adequate remedy. It is not to be used to adjudicate grievances which may be adequately redressed in an ordinary course of judicial proceedings. The filing of a report of injury cannot be prejudicial to employer/insurer. If error, the error can still be preserved and presented on an appeal from the final judgment in the regular course of litigating the Worker’s Compensation Claim. State ex rel. Leverage Inv. Enterprises v. Yeaman, 581 S.W.2d 53, 56 (Mo.App.1979) and Boyer v. Anderson, 621 S.W.2d 72, 75 (Mo.App.1981). If we were to rule the order of the administrative law judge was improper, said ruling would not end the Worker’s Compensation proceeding. Claimant, in either event, has the same burden of proof. The mere filing of a report of injury pursuant to the order of the administrative law judge, upon objection, will not avoid the import of De-Rousse.

The order of the circuit judge quashing the preliminary writ of prohibition is affirmed.

REINHARD, P. J., and SNYDER, J., concur.

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CRIST, Judge.

Preliminary writ of prohibition issued by a circuit judge and then quashed by the same circuit judge. We affirm.

Donald Fowler (claimant) filed a Worker’s Compensation Claim on November 20, 1978 alleging work related injury “about January, 1969.” Employer and insurer assert the claim was barred by claimant’s failure to comply with § 287.420, RSMo. 1969 (notice of injury to employer by employee) and § 287.430, RSMo. 1969 (one year statute of limitations with provision for filing claim one year after the employer files a report of injury).

The Worker’s Compensation Claim was set for hearing on March 20, 1980. On March 11, 1980, our Supreme Court handed down DeRousse v. PPG Industries, Inc., 598 S.W.2d 106 (Mo.banc 1980). DeRousse said mere failure or neglect of employer to file a report of injury required by § 287.380, [669]*669RSMo. 1978 did not toll the statute of limitations.

On March 18, 1980, claimant filed a motion for continuance of the March 20, 1980 hearing date and moved the respondent (administrative law judge) to require employer to file a report of injury. On June 6, 1980, administrative law judge ordered appellants (employer/insurer) to file a report of injury or suffer the penalty of having their pleading stricken. Employer/insurer filed a petition for writ of prohibition in the circuit court to restrain administrative law judge from enforcing the order requiring the filing of the report of injury. The trial court issued its preliminary writ and then quashed its preliminary order. Employer/insurer appealed.

Prohibition is not a remedy for all difficulties. It cannot be used as a substitute for appeal. State ex rel. Speer v. Grimm, 599 S.W.2d 67, 69 (Mo.App.1980). It is to be used only in extreme cases when there is no other adequate remedy. It is not to be used to adjudicate grievances which may be adequately redressed in an ordinary course of judicial proceedings. The filing of a report of injury cannot be prejudicial to employer/insurer. If error, the error can still be preserved and presented on an appeal from the final judgment in the regular course of litigating the Worker’s Compensation Claim. State ex rel. Leverage Inv. Enterprises v. Yeaman, 581 S.W.2d 53, 56 (Mo.App.1979) and Boyer v. Anderson, 621 S.W.2d 72, 75 (Mo.App.1981). If we were to rule the order of the administrative law judge was improper, said ruling would not end the Worker’s Compensation proceeding. Claimant, in either event, has the same burden of proof. The mere filing of a report of injury pursuant to the order of the administrative law judge, upon objection, will not avoid the import of De-Rousse.

The order of the circuit judge quashing the preliminary writ of prohibition is affirmed.

REINHARD, P. J., and SNYDER, J., concur.

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Bluebook (online)

629 S.W.2d 668, 1982 Mo. App. LEXIS 3823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jim-walter-plastics-v-sihnhold-moctapp-1982.

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