Atwell v. Fitzsimmons

• Decision Date: 21 October 2014
• Docket Number: WD 77100
• Citation: 452 S.W.3d 670
• Court: Missouri Court of Appeals
• Parties: Mariann Atwell, et al., Respondents, v. James Fitzsimmons, Appellant.

452 S.W.3d 670

Mariann Atwell, et al., Respondents

v.James Fitzsimmons, Appellant.

WD 77100

Missouri Court of Appeals, Western District.

OPINION FILED: October 21, 2014

Motion for Rehearing and/or Transfer to Supreme Court Denied November 25, 2014

Application for Transfer Denied February 3, 2015

Caroline M. Coulter, Heather L. McCreery, and Matthew B. Briesacher, Jefferson City, MO, Attorneys for Respondents.

Ryan J. McDaniels, Jefferson City, MO, Attorney for Appellant.

Before Division I: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges

Opinion

Mark D. Pfeiffer, Presiding Judge

This appeal reveals the problem with the Administrative Hearing Commission—in the context of administrative proceedings conducted outside the purview of the Labor and Industrial Relations Commission's authority under Chapter 287, RSMo—usurping the exclusive statutory authority of the administrative tribunals of the Labor and Industrial Relations Commission to determine whether an employee's injury shall be deemed to have arisen out of and in the course of employment with the employer and, if so, to what relief the injured employee is entitled.

Mariann Atwell (“Atwell”), the Director and Appointing Authority¹ of the Division of Offender Rehabilitation Services within the Missouri Department of Corrections (collectively “MDOC”), dismissed James D. Fitzsimmons (“Fitzsimmons”) from his merit system position. Fitzsimmons appealed his dismissal to the Administrative Hearing Commission (“AHC”), which found that Atwell did not have cause to dismiss Fitzsimmons and ordered the MDOC to accommodate Fitzsimmons's injuries during recuperation and to reinstate Fitzsimmons to an alternative duty assignment during recuperation. Atwell and the MDOC petitioned the Circuit Court of Cole County, Missouri, to review the AHC's decision. The circuit court reversed the AHC's decision, and Fitzsimmons appealed.²

Atwell and the MDOC raise multiple points on appeal, arguing in the alternative that the AHC's decision that Fitzsimmons should be reinstated was not supported by competent and substantial evidence upon the whole record, was arbitrary and unreasonable, was in excess of statutory authority, and was a misapplication of the law. Because the AHC erroneously usurped the exclusive role and function of the Labor and Industrial Relations Commission, we conclude that the AHC's decision is unauthorized by law and unsupported by competent and substantial evidence; thus, we affirm the circuit court's judgment reversing and remanding the AHC's decision.

Factual and Procedural Background³

Fitzsimmons was employed on October 20, 2008, as a tractor trailer truck driver by the MDOC. By all accounts, Fitzsimmons was an exceptionally good employee.

On February 16, 2011, Fitzsimmons was assigned to make a round trip from Jefferson City, Missouri, to Cameron, Missouri. He stopped at a truck stop in Macon, Missouri, to go to the bathroom, throw away trash, and get a cup of coffee. As Fitzsimmons was getting out of his truck, he slipped on an icy lower step, landed hard on his foot as he slipped and fell on the ground twice, and fractured his ankle

in four places.

Fitzsimmons's ankle swelled immediately, but he finished his route and continued to work until he started feeling pain in his ankle four to six weeks later and went to a doctor. The last day he physically worked as a truck driver for the MDOC was March 25, 2011.

Fitzsimmons asserted a claim for workers' compensation benefits with the Risk Management Section of the State Office of Administration as a result of his February 16, 2011 injury. The Central Accident Reporting Office (“CARO”)⁴ reviews workers' compensation claims on behalf of state agency employers and represents the interests of state agency employers in disputed claims of compensation under Missouri's Workers' Compensation Act codified in Chapter 287 of the Missouri Revised Statutes. CARO denied that Fitzsimmons's injury arose out of and in the course of his employment with the MDOC. Fitzsimmons filed a formal workers' compensation claim with the Division of Workers' Compensation, and that claim is still pending.

The MDOC operates under one set of policies when an employee's injury arises out of and in the course of employment and another when the injury does not so arise. Under the former, the policy—titled “Employee Injury/Workers' Compensation” and expressly incorporating “Chapter 287 RSMo” (“the MDOC Work Comp Policy”)—attempts to accommodate injured employees by finding temporary alternative duties matching the doctor-prescribed physical limitations while the employee is recuperating from injury. Under the latter, an employee may exercise his right to paid leave, rights guaranteed under the Family and Medical Leave Act (“FMLA”), and to seek leave without pay. However, at such time as an employee fails to report to work for three consecutive work days without employer authorization, the employee is subject to discipline. Here, Fitzsimmons and the MDOC operated under the authorized/unauthorized absence policy.

All of Fitzsimmons's paid leave was exhausted on June 1, 2011, and his FMLA leave expired on June 17, 2011. Fitzsimmons requested an extension of medical leave without pay until his doctor released him to return to work. Atwell, as the Appointing Authority, approved Fitzsimmons's request for leave without pay through July 31, 2011. Atwell later extended the date to August 5, 2011. She requested that Fitzsimmons have his physician review the Essential Functions of a Tractor Trailer Driver and complete the Intent to Return and Fitness for Duty/Medical Release FMLA form so that she could better assess the possibility of Fitzsimmons returning to work. The relevant physical portions of the essential functions of a tractor trailer driver were:

• The need to be able to lift, move and stack heavy objects daily.

• The need to be able to climb in and out of the truck and/or trailer multiple times every day. This requires climbing up and down three steep steps.

• Due to the nature of the job, sitting in the truck or standing on concrete for an extended amount of time could be required.

On July 12, 2011, Fitzsimmons's physician opined that Fitzsimmons was unable to perform the essential functions of his position as a tractor trailer driver. Addressing Fitzsimmons's performance limitations, his physician noted that Fitzsimmons “is currently non-weight-bearing and using a roll-about to aide in ambulation. He is unable to walk, run, stoop, climb, or bend. He is being re-evaluated about every two weeks with xrays to check healing progress. Patient may be able to return to his position in Oct.” Thereafter, in August 2011, Fitzsimmons's physician modified the restrictions, but of note, the restrictions were not such that Fitzsimmons could get in and out of a tractor trailer truck and drive the truck to delivery locations.

Fitzsimmons did not return to work after August 5, 2011, and his absences were then considered unauthorized. Approximately one month later, Fitzsimmons was notified that, effective September 15, 2011, he was dismissed from his employment without prejudice.⁵ In pertinent part, Fitzsimmons was dismissed due to excessive unauthorized absences.

Fitzsimmons appealed his dismissal to the AHC.

After a hearing, the AHC concluded that Fitzsimmons's injuries were work related as contemplated by the MDOC Work Comp Policy, that the policies applied by Atwell were only applicable for injuries that were not work related, and that the MDOC should adhere to the MDOC Work Comp Policy. The AHC ordered the MDOC to reinstate Fitzsimmons to a temporary alternative duty position until he recuperated from his injuries and was able to perform the full duties of a tractor trailer truck driver.

Atwell and the MDOC petitioned the circuit court for judicial review of the AHC's decision. The circuit court reversed and remanded the matter, finding that the AHC's decision was arbitrary, unlawful, unreasonable, and was not supported by substantial and competent evidence on the record as a whole.

Fitzsimmons timely appealed.

Standard of Review

“On an appeal from the trial court's review of an AHC decision, we review the decision of the AHC, not the judgment of the trial court.” Dep't of Soc. Servs. v. Peace of Mind Adult Day Care Ctr., 377 S.W.3d 631, 637 (Mo.App.W.D.2012). “ ‘The AHC's decision will be upheld unless it is not supported by competent and substantial evidence upon the whole record; it is arbitrary, capricious, or unreasonable; it is an abuse of discretion; or it is otherwise unauthorized by law or in violation of constitutional provisions.’ ” Id . (quoting Beverly Enters.-Mo. Inc. v. Dep't of Soc. Servs., 349 S.W.3d 337, 351 (Mo. App. W.D.2009) ). “We review the AHC's conclusions on the interpretation and application of the law[, however,] de novo .” Id .

Analysis

Because the points relied upon by Atwell and the MDOC are interrelated, we discuss them together.

“The AHC is a creature of statute and has only such ... authority as may be granted by the legislature.” Mo. Dep't of Soc. Servs., Div. of Med. Servs. v. NME Hosp., Inc., 11 S.W.3d 776, 779 (Mo.App.W.D.1999) (internal quotation omitted). When reviewing the dismissal of an employee with merit status, the AHC may make any one of the following appropriate orders:

(1) Order the reinstatement of the employee to the employee's former position;⁶

(2) Sustain the dismissal of such employee;

(3) Except as provided in subdivisions (1) and (2) of this subsection, the administrative hearing commission may sustain the dismissal, but may order the director of personnel to recognize reemployment rights for the dismissed employee pursuant to section 36.240, in an appropriate class or classes, or may take steps to effect the transfer of such employee to an appropriate position in the same or another division of service.

§ 621.075.2.⁷ Here, the AHC did none of the above, choosing instead to craft an order that...