Braswell v. Missouri State Highway Patrol

• Decision Date: 14 April 2008
• Docket Number: No. 28465.,28465.
• Citation: 249 S.W.3d 293
• Parties: Caren BRASWELL, Plaintiff-Respondent, v. MISSOURI STATE HIGHWAY PATROL, Defendant-Appellant, and Treasurer of the State of Missouri, as Custodian for the Second Injury Fund, Defendant-Respondent.
• Court: Missouri Court of Appeals

249 S.W.3d 293

Caren BRASWELL, Plaintiff-Respondent, v. MISSOURI STATE HIGHWAY PATROL, Defendant-Appellant, and Treasurer of the State of Missouri, as Custodian for the Second Injury Fund, Defendant-Respondent.

No. 28465.

Missouri Court of Appeals, Southern District, Division Two.

April 14, 2008.

Mary O. Thompson, Springfield, for Appellant.

William W. Francis, Jr., Ryan E. Murphy, Springfield, for Respondent.

NANCY STEFFEN RAHMEYER, Judge.

The Missouri State Highway Patrol ("Employer") appeals the grant of temporary benefits to Caren Braswell ("Employee"), as a result of injury incurred while Employee was on duty as a trooper for Employer. Employer makes two claims of error, first:

The Commission erred in allowing Employee to escape the requirements of § 287.120.8 RSMo (1992) on appeal from the ALJ's ruling, because in so doing, the Commission allowed Employee to mislead and surprise Employer by pleading one theory of compensability and recovering under another, in that the theory of compensability Employee advanced in the Claim for Compensation and at the Hardship Hearing was based on extraordinary and unusual stress under § 287.120.8 RSMo (1992).[¹]

Employer's second point of error contends:

The Commission erred in reversing the ALJ's ruling because the finding that Employee's mental injury was caused by the tasing incident on February 1, 2004, is against the overwhelming weight of the evidence, in that the evidence, taken as a whole, does not support this finding of causation.

Mindful that this is an appeal from a temporary award, we find that neither of Employer's points state a claim of error which this Court can review; thus, we dismiss the appeal.

Employer's first claim of error takes issue with the process followed by the Labor and Industrial Relations Commission ("the Commission") in reviewing the ruling of the Administrative Law Judge ("ALJ"). Specifically, Employer argues that the pleading's, Employee's Claim for Compensation's, "original and exclusive theory of recovery at the Hardship Hearing was under the statute governing work stress claims — § 287.120.8 RSMo (1992)." Employer states that Employee's trial brief used "specific terms of art taken directly from § 287.120.8"; Employer supports its complaint with cites to trial testimony concerning the "unusual," "extraordinary," and "stressful" events which led to the claim for workers' compensation benefits. Employer claims "surprise" by Employee's abandonment of its theory on appeal to the Commission. Employer further states that Employee changed her theory of compensability, "in effect attempting to amend the Claim after the close of the evidence" and further complains that the Commission "chose not to address this issue." Employer misunderstands our standard of review.²

With few exceptions, our review is of the final award of the Commission, and not that of the ALJ. Section 287.495.1; Muller v. St. Louis Housing Authority, 175 S.W.3d 191, 194 (Mo.App. E.D.2005). The only record reviewed by this Court is that which is certified by the Commission as containing all documents and papers in its file concerning the claim being reviewed. Miller v. Penmac Personnel Services, Inc., 68 S.W.3d 574, 578 (Mo.App. S.D. 2002).³ If, as here, the award of the Commission attaches and incorporates an award and decision of the ALJ, we may consider the findings, but only so far as they are consistent with the decision of the Commission. Booth v. Trailiner Corp., 21 S.W.3d 869, 871 (Mo.App. S.D.2000). Appellate review of a final award of the Commission is directed to questions of law. Section 287.495.1.⁴ An award of the Commission must be affirmed if the evidentiary record contains sufficient competent evidence to support the award. Id. The whole record is considered to determine if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). Furthermore, "[w]e accord the [C]ommission the same deference that is due to the court's judgment in a non-jury trial and are obliged to affirm if there is basis in the record for the decision." Parker v. Springfield Ry. Services/Anheuser-Busch, Inc., 897 S.W.2d 103, 108 (Mo.App. S.D. 1995).

In addition to our limited standard of review, we have further restraints on our ability to review decisions of the Commission. As noted, this is a review of an award from a hardship hearing. In a workers' compensation case, this Court has no appellate jurisdiction except as expressly conferred by statute. Id.

Section 287.495 authorizes an appeal from the "final award of the [C]ommission" to the appellate court. "A `final award' is one which disposes of the entire controversy between the parties." Hillenburg v. Lester E. Cox Medical Center, 879 S.W.2d 652, 655 (Mo.App. S.D.1994).[] "An order lacks finality where it remains tentative, provisional, contingent, subject to recall, revision or reconsideration by the issuing agency." Id. at 655 (citing Lewis v. Container Port Group, 872 S.W.2d 134, 136 (Mo. App. E.D.1994); Blanford v. Robinett's Motor & Truck Serv., Inc., 865 S.W.2d 874, 876 (Mo.App. E.D.1993)). "No appeal lies from a temporary or partial award" made pursuant to section 287.510. Hillenburg, 879 S.W.2d at 655-56.

Alcorn v. McAninch Corp., 236 S.W.3d 111, 114 (Mo.App. S.D.2007). Without jurisdiction, an appeal must be dismissed. Muller, 175 S.W.3d at 193. We have a duty to determine sua sponte whether we have jurisdiction to hear an appeal. Id.

As we further noted in Alcorn, there are two exceptions to the rule that temporary awards are unreviewable:

First, where an award designated "temporary and partial" is not entered pursuant to section 287.510 but is an award of permanent total disability pursuant to section 287.200.2. Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 343 (Mo. banc 1991); Smith v. Ozark Lead Co., 741 S.W.2d 802, 808-10 (Mo.App. S.D. 1987).

Alcorn, 236 S.W.3d at 114-15. That exception is not at issue in this case. The second judicially-created exception allows for a limited review where an employer claims it is not liable for paying any compensation and is disputing all liability. See e.g., Woodburn v. May Distrib. Co., 815 S.W.2d 477, 480 (Mo.App. S.D. 1991); Hillenburg, 879 S.W.2d at 656; Stufflebean v. Crete Carrier Corp., 895 S.W.2d 115, 116 (Mo.App. W.D. 1995). Thus, it has been stated, "a court can review the issues on which liability turns, such as notice or whether an employee's injuries are work-related." See generally Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 398 (Mo.App. E.D. 1996) (internal citations omitted); Hillenburg, 879 S.W.2d at 656; Eubanks v. Poindexter Mechanical Plumbing & Heating, 901 S.W.2d 246, 247 (Mo.App. S.D. 1995).

Id. at 115.

In support of its first point, Employer cites a case in which the appellate court affirmed an award in favor of an injured worker for permanent total disability and nursing services. See Groce v. Pyle, 315 S.W.2d 482 (Mo.App.K.C.1958). Employer cites Groce for the general proposition that "[a] sense of fairness and understanding requires that not only an employer but also the Commission be advised of the nature of the employee's claim." Id. at 492-93. First, the quote from Groce does not assist Employer. Before us is an appeal from a hardship hearing, not the final award as in Groce. Second, Employer does not contend that the Commission was misled; it complains that the ALJ was confused by Employee's pleadings. Groce is not on point.

In this case, the Commission specifically noted: "The [ALJ] denied benefits by applying the provisions of section 287.120.8 RSMo, to conclude that [E]mployee did not sustain an injury due to an accident arising out of and in the course of her employment." The Commission then analyzed section 287.120.8 and stated that it did not apply in a case involving a mental injury arising from a traumatic event and that Employee's claim was based upon an incident that occurred on February 1, 2004. Thus, the Commission determined that "[i]f [E]mployee's claim of mental injury can be proven to be based upon the traumatic [event], and not from work[-]related stress, the compensability of [E]mployee's claim must be determined under section 287.120.1." Thus, the Commission determined that the ALJ was wrong in its legal analysis on an issue raised by Employee in her petition for review and on Employee's original claim. Employer is not challenging any liability for benefits in its first point; it is challenging the administrative process the Commission used to reach its conclusions of law. Such a claim of error in this award for temporary benefits is unreviewable by this Court and we have no jurisdiction to review the claim. Point I is dismissed.

Likewise, Employer's second point is unreviewable. Employer contends that the finding that Employee's mental injury was caused by an incident on February 1, 2004, is against the overwhelming weight of the evidence in that the evidence, taken as a whole, does not support a finding of causation. The point violates Rule 84.04(d)(2)(C) because it fails to "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." When briefs are not in conformity with the applicable rules, they do not sufficiently advise the courts of the meritorious issues presented. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). This Court is then forced to decide a case based on inadequate briefing and is asked to take on an advocacy role by "undertaking additional research and briefing to supply the deficiency." Id. This is a role this Court will not assume.

While Employer may raise the issue that it is denying all liability, thus providing jurisdiction for review, "`[a]rguments raised in the points relied on which are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate...