Barker v. Secretary of State's Office of Missouri

• Decision Date: 31 May 1988
• Docket Number: No. WD,WD
• Citation: 752 S.W.2d 437
• Parties: Randa K. BARKER, Plaintiff-Appellant, v. SECRETARY OF STATE'S OFFICE OF MISSOURI, Defendant-Respondent. 39683.
• Court: Missouri Court of Appeals

Page 437

752 S.W.2d 437

Randa K. BARKER, Plaintiff-Appellant, v. SECRETARY OF STATE'S OFFICE OF MISSOURI, Defendant-Respondent.

No. WD 39683.

Missouri Court of Appeals,

Western District.

May 31, 1988.

Harvey M. Tettlebaum, Jefferson City, for plaintiff-appellant.

William L. Webster, Atty. Gen., Terry A. Allen, Deputy Asst. Atty. Gen., Jefferson City, for defendant-respondent.

Before NUGENT, P.J., and SHANGLER and BERREY, JJ.

BERREY, Judge.

Randa K. Barker appeals from a final award denying worker's compensation by the Labor and Industrial Relations Commission for a back injury allegedly occurring during her employment with the office of the Secretary of State. Two points are raised on appeal: (1) that the Labor and Industrial Relations Commission acted without and in excess of its power in that one of its members, Hannelore Fischer, had previously served as counsel for the employer and insurer in this specific case; and (2) that there was insufficient competent evidence to support the commission's decision denying Barker's compensation.

Randa K. Barker was employed by the Secretary of State's office for eighteen years. One of her duties as Administrative Assistant to the Corporation Counsel was to assist in the mailing out of annual report forms required to be sent to the Corporate Division from all corporations doing business in Missouri. The pre-addressed reports had to be moved from the computer room on the second floor to the mailing room on the main floor. The boxes weighed thirty-three pounds apiece and were approximately 2 to 2 1/2 feet by 2 feet. Barker and her fellow employees lifted the boxes on to dollies and wheeled them to the elevator for transport to the mailroom where they then unloaded the boxes.

On April 28, 1981, the second day of loading and unloading boxes, Barker experienced back pain. She testified that at some time during that morning she had a back ache and she thought that she had sprained her back. Although she did tell two co-workers that her back hurt, she returned to work on April 29. The pain subsided within two weeks, but around the first of July she woke up with numbness and pain in her leg. She continued to work and the pain got worse. On July 29, she went to her family doctor, Dr. Weiss. He ordered bedrest. On August 10, she returned to work but felt no better. She entered St. Mary's Health Center on August 17, and was examined by Dr. Krautmann and Dr. Cox, who ran various tests, including a CAT-Scan and a myelogram. On August 25, the doctors performed surgery on a ruptured disc that was pinching a nerve in her leg. Barker returned to work on November 2.

On October 17, 1984, while she was at work, Barker was unable to get up from her chair. She was then assisted to Dr. Krautmann who advised bedrest. A few days later she returned to work, but on October 24, she was hospitalized, and put in traction, while undergoing a series of tests indicating that the disc had again ruptured.

Barker had told her supervisor in July 1981, of her injury. She attempted to file a claim in August, but was told that because she had not done so within twenty-four hours she could not. She did file a claim with the state health insurance plan; however, she indicated that the injury was not work related because she did not connect the pain in her leg with her back at that time.

On November 3, 1981, Randa K. Barker filed a claim for compensation with the Division of Worker's Compensation alleging an injury to her back on April 28, 1981, while "lifting and carrying boxes of annual registration reports" for the Corporate Division of the Secretary of State, her employer. A hearing on the matter was held on January 31, 1985, before an Administrative Law Judge (hereinafter ALJ). Hannelore Fischer, an assistant attorney general, appeared as counsel for the employer and the insurer, Central Accident Reporting Office, a self-insurer. The ALJ, in a decision rendered on June 6, 1985, found against Barker on the grounds that she failed "to prove a causal relationship between the occurrence on April 28, 1981, and the disability she now complains of." Thus, compensation was denied. On June 26, 1985, Barker applied to the Labor and Industrial Relations Commission for review of the ALJ's decision. During the interval between the decision by the ALJ and the date of the review, Hannelore Fischer was appointed to the Labor and Industrial Relations Commission.

The Labor and Industrial Relations Commission consisted of three members, Lester Watkins, Robert L. Fowler and Hannelore Fischer, chairman. A review of the ALJ's decision was undertaken by the Commission. A majority of members, Lester Watkins and Hannelore Fischer, found against Barker ruling that the ALJ's decision was supported by substantial and competent evidence. Member Watkins signed the final award denying compensation.

Member Robert L. Fowler disagreed with the majority. In a separate opinion he outlined his dissent, the basis of which was testimony given by Dr. Garth S. Russell. Dr. Russell opined that Barker's back injury was a result of trauma suffered when she lifted boxes in April 1981. Member Fowler also considered the case of Crites v. Missouri Dry Dock and Repair Company, 348 S.W.2d 621 (Mo.App.1961), where a back injury was found to be compensable although fifteen months had elapsed between the time of the injury and medical attention. Member Fowler found that the "overwhelming weight of the evidences [sic] supports a finding that Mrs. Barker suffered a compensable injury while employed by the Secretary of State."

Chairman Fischer concurred in the denial of compensation in a separate opinion. She pointed out her previous involvement in the case as attorney for the employer and the insurer but noted that there had been no motion to disqualify filed. Fischer outlined the circumstances surrounding her involvement stating that she took no part in the case until a stalemate was reached. After reviewing the case she joined with member Watkins. In support of her participation in the decision she relied on the Rule of Necessity which allows an interested judge to perform his duty in a cause where there is no mechanism for replacement and where failure to preside would foreclose all adjudication or review in that cause. United States v. Will, 449 U.S. 200, 213-215, 101 S.Ct. 471, 480-481, 66 L.Ed.2d 392 (1980).

One of the fundamental precepts which govern the sound administration of justice is that, not only must justice be done, an appearance of justice must be maintained. To maintain this appearance of justice, it is important to consider the maxim which states that a man should refrain from being a judge in his own cause. The earliest Missouri pronouncement on the subject is found in State ex rel. Sansone v. Wofford, 111 Mo. 526, 20 S.W. 236 (1892):

It is a maxim of common law, the wisdom and propriety of which will not be questioned, that "no one should be a judge in his own cause." Provision has always been made, in case of the disqualification of a judge to sit in any case, by reason of his interest therein, to supply a substitute to hear and determine the case. This interest which disqualifies a judge is always made to include that which an attorney had in a case in which he has professionally acted.

State ex rel. Sansone v. Wofford, supra, at 236.

Fischer served as counsel for the insurer in the original claim made by Barker. The only path open to her in defending her part in the proceedings is that ancient exception to the requirement of recusal--The Rule of Necessity.

Quite simply, the Rule of Necessity allows a person to be a judge in a case in which that person has an interest, provided that no arrangement is made for a substitute judge. The Rule was born within the structure of English Common Law, first appearing in 1430 when it was held that the Chancellor of Oxford could act in a case to which he was a party as there was no substitute to hear the case. See United States v. Will, supra, at 213.

The doctrine operates on the principle that a biased judge is better than no judge at all. Disqualification can not be allowed to bar the doors to justice or to destroy the only tribunal vested with the power to act.

The Supreme Court of the United States has recognized and accepted the doctrine. The earlier cases dealt with the Compensation Clause and only vaguely addressed the Rule. O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289 (1939); O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Evans v. Gore, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887 (1920). The court in Evans gives the clearest statement concerning the Rule without directly mentioning it:

Because of the individual relation of the members of this court to the question, thus broadly stated, we cannot but regret that its solution falls to us.... But jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to invoke our decision on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other appellate tribunal to which under the law he could go.

Evans v. Gore, supra, 253 U.S. at 247-248, 40 S.Ct. at 551.

Both state ¹ and federal ² courts have reviewed the rule from time to time. There is a paucity of law on the subject in Missouri. What is to be found suggests a careful measured approach in applying the Rule.

Missouri recognized the Rule of Necessity in Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570 (Mo.1965). In Rose a physician appealed a decision by the state board revoking his license to practice. He asserted a denial of due process as the charge against him originated with and was heard and determined by the state board. The Rose court found that this attempt to disqualify the entire board on due process grounds was unfounded. No board member had a personal interest in the...