Warren v. Signal Delivery Service

939 S.W.2d 3, 1997 Mo. App. LEXIS 54, 1997 WL 18225
CourtMissouri Court of Appeals
DecidedJanuary 16, 1997
DocketNo. 21032
StatusPublished
Cited by2 cases

This text of 939 S.W.2d 3 (Warren v. Signal Delivery Service) 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
Warren v. Signal Delivery Service, 939 S.W.2d 3, 1997 Mo. App. LEXIS 54, 1997 WL 18225 (Mo. Ct. App. 1997).

Opinion

CROW, Presiding Judge.

Appellant, an employer, brings this appeal from a “Final Award Allowing Compensation” under The Workers’ Compensation Law1 issued by The Labor and Industrial Relations Commission (“Commission”). The award grants Respondent, an employee of Appellant, compensation for permanent total disability.

The sole point relied on in Appellant’s brief is:

“The ... Commission ... was wrong to uphold the award of total disability benefits because there was not sufficient, competent and substantial evidence in the record to warrant the making of the award - or- the evidence against the finding of total disability clearly overwhelms that which supports it. This Court should diminish the award because the . record only supports a finding of partial disability.”

Rule 84.042 applies to appeals arising under The Workers’ Compensation Law. Kerr v. Ehinger, Inc., 515 S.W.2d 763, 764[1] (Mo.App.1974). Rule 84.04(d) reads:

“The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous....
Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.”

The purpose of Rule 84.04(d) and the necessity of obeying it are explained in the oft-cited case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo.banc 1978). Anyone drafting a point relied on can find guidance there.

Appellant’s point relied on makes only a conclusions! allegation that there was insufficient competent and .substantial evidence to warrant the award. The point yields no clue as to wherein the evidence was deficient. The point likewise makes only an unadorned assertion that the evidence against the finding of total disability overwhelms the evidence supporting that finding. The point supplies no hint as to why that is so. The point also provides no inkling as to wherein or why the record supports only a finding of partial disability.

In Porter v. Emerson Electric Co., 895 S.W.2d 155 (Mo.App.S.D.1995), both sides appealed from a decision of the Commission in a workers’ compensation ease. The two points relied on by the employer in Porter were:

“I. The Labor and Industrial Relations Commission erred in entering a final award awarding compensation to employee because the award was procured by the fraud of employee.
II. The Labor and Industrial Relations Commission erred in entering a final award awarding compensation to employee because such findings are not supported by substantial and competent evidence and are- clearly contrary to the overwhelming [5]*5weight of the evidence on the record as a whole.”

Mat 160.

Applying Thummel, 570 S.W.2d at 684-88, and other authorities, this court held in Porter that neither point presented anything for review. 895 S.W.2d at 160-61.

Stroup v. Facet Automotive Filter Co., 919 S.W.2d 273 (Mo.App.S.D.1996), like Porter and the instant case, was an appeal from a decision of the Commission in a workers’ compensation case. There, as here, the issue was whether the injured employee was permanently and totally disabled. Id. at 275. The appellant’s brief there presented three points relied on, all of which were held insufficient to present anything for review. Id. at 275-78.

The first point in Stroup proclaimed the appellant proved he was permanently and totally disabled. Id. at 275-76. However, as pointed out by this court, the point did not reveal wherein the evidence established that fact. Id. at 276. The adversary party in Stroup, evidently familiar with Rule 84.04(d) and Thummel, 570 S.W.2d at 684-88, correctly claimed that all of the points relied on were deficient. Stroup, 919 S.W.2d at 276. The appellant, in his reply brief, ignored the attack on his points and did not request plain error review. Id. at 278. This court dismissed the appeal.3 Id.

Here, unlike Stroup, Respondent overlooks Appellant’s violation of Rule 84.04(d). Consequently, we shall not dismiss the appeal. Instead, we shall, ex gratia, look to the argument following Appellant’s point relied on to determine whether there is plain error justifying relief under Rule 84.13(e). Smith v. Fabricated Metal Products, 888 S.W.2d 537, 539[4] (Mo.App.E.D.1994). That rule authorizes an appellate court to grant relief for plain error if the error results in manifest injustice or a miscarriage of justice. Id. See also: Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo.App. S.D.1995).

Respondent was injured October 3, 1990, in an accident arising out of and in the course of his employment by Appellant. Respondent’s deposition was taken March 31, 1993. Respondent’s claim was heard October 26, 1995, by an administrative law judge (“AL J”) of the Division of Workers’ Compensation.

At the hearing, Respondent presented evidence including the deposition testimony of a medical doctor. The doctor avowed Respondent “is totally and permanently disabled.” Respondent also presented deposition testimony by a vocational rehabilitation expert. The expert avowed Respondent “is totally vocationally disabled.”

We deduce from the nineteen pages of argument following Appellant’s point relied on that its attack on the evidence is based on the premise that Respondent gave false information to the doctor and the vocational rehabilitation expert about the extent of his impairment resulting from the injury.4 According to Appellant, the doctor and the vocational rehabilitation expert relied on the false information in arriving at- their respective evaluations.

AppeEant maintains Respondent’s deposition confirms he gave the duo false information. AppeEant cites us to segments of Respondent’s deposition where he avows he is unable to stoop, crouch, or lift anything heavier than his shaving case. That testimony, says AppeEant, was proven false by physical activities engaged in by Respondent during surveiEance by an investigator retained by AppeEant’s workers’ compensation insurance carrier.

The surveiEance began June 28, 1995, and ended July 1, 1995. At the hearing before the ALJ, an hour-long videotape made by the [6]*6investigator June 30, 1995, was received in evidence. It shows Respondent in the front yard of his residence. Dining the surveillance, Respondent walked, bent, squatted, carried toolboxes, picked up a “toddler” estimated by the investigator to weigh 25 pounds, and removed the “bagger” from a lawn mower (the mower was operated by a boy, not Respondent). According to the investigator, Respondent exhibited no indicia of pain in any of those activities.

Appellant proclaims:

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939 S.W.2d 3, 1997 Mo. App. LEXIS 54, 1997 WL 18225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-signal-delivery-service-moctapp-1997.