Cagle v. Regal Plastics Co.

• Decision Date: 31 March 1975
• Docket Number: No. KCD,KCD
• Citation: 522 S.W.2d 7
• Parties: Doris E. CAGLE, Appellant, v. REGAL PLASTICS COMPANY, and Fireman's Fund Insurance Company, Respondents. 27273.
• Court: Missouri Court of Appeals

Page 7

522 S.W.2d 7

Doris E. CAGLE, Appellant, v. REGAL PLASTICS COMPANY, and Fireman's Fund Insurance Company, Respondents.

No. KCD 27273.

Missouri Court of Appeals, Kansas City District.

March 31, 1975.

Patrick M. Keating, Kansas City, for appellant.

Kenneth O. Smith, Knipmeyer, McCann, Fish & Smith, Kansas City, for respondents.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

SWOFFORD, Presiding Judge.

This is a workmen's compensation case wherein the employee-claimant was awarded compensation for an injury to her right leg for six weeks temporary total disability at $70.00 per week, and an allowance of $150.00 for disfigurement, or a total award of $570.00 by the Referee, Division of Workmen's Compensation. Upon review before the Industrial Commission, this award was affirmed. Upon appeal to the circuit court, the award was again affirmed and this appeal followed. Throughout this proceeding there was only one issue involving the merits, that being the nature and extent of appellant's injury and disability.

However, the respondents filed in the circuit court their motion to dismiss the appeal upon the ground that the court had no jurisdiction for the reason that the claimant-appellant had not appealed the judgment of the Industrial Commission affirming the referee's award within 30 days of the date thereof, as required by Section 287.490 RSMo 1969, V.A.M.S. The circuit court overruled this motion to dismiss. Respondents filed their motion to dismiss this appeal upon the same ground, and it was taken with the case.

Appellant, Doris Cagle, was injured on October 28, 1971. Her Claim for Compensation was filed on February 14, 1972, which document shows her then address to be 405 So. Colorado, Kansas City, Missouri. On November 29, 1972, at the hearing before the Referee of the Division of Workmen's Compensation, she testified that she then lived at 3531 East 6th Street, Kansas City, Missouri. The Referee's award was made on December 19, 1972 and a timely Application for Review thereof was filed before the Industrial Commission of Missouri on January 4, 1973. On June 13, 1973, the review was heard before the full commission and its final award affirming the award of the Referee was entered September 10, 1973.

The record shows that on September 10, 1973, a certified letter, with return receipt requested, was mailed from Jefferson City, Missouri, postage prepaid, to 'Doris E. Cagle, 405 South Colorado, Kansas City, Missouri' which contained the commission's final award. This communication was not delivered to the claimant but was returned to the commission 'unclaimed'. There is no claim made that the appellant ever received notice of this final award or knowledge that it had been entered until November, 1973, under circumstances hereinafter noted. Nevertheless, respondents strongly assert that the 30-day period of limitation for appeal to the circuit court as provided by Section 287.490 RSMo 1969, V.A.M.S., commenced to run on September 10, 1973, and that since the appellant did not take her appeal within that period, the commission's award became final and conclusive and the circuit court and this court lack jurisdiction over the appeals. It is true that the courts of Missouri have frequently held that the procedural requirements of the Workmen's Compensation law relating to review and appeal are jurisdictional and require strict compliance from the parties. Graves v. O. F. Elliott, Inc., 355 Mo. 751, 197 S.W.2d 977, 979 (banc 1946); Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311, 313(2) (Mo.App.1972); Luketich v. Krey Packing Company, 413 S.W.2d 29, 31(1, 2) (Mo.App.1967).

It should be equally imperative that any administrative body, in this case the Industrial Commission, strictly comply with the procedural requirements imposed upon it under the law. Section 287.470 RSMo 1969, V.A.M.S., provides that after review, the commission 'shall immediately send to the parties and the employer's insurer a copy' of its award.

Section 287.520 RSMo 1969, V.A.M.S., provides:

'Notice--manner of serving.

Any notice required under this chapter shall be deemed to have been properly given and served when sent by registered or certified mail properly stamped and addressed to the person to whom given, at his last known address in time to reach him in due time to act thereon. * * *' (emphasis supplied)

The statutory obligation imposed upon the commission by these two statutes is unambiguous and clear. A copy of its final award was required to be 'immediately' mailed to appellant by registered postpaid mail 'at her last known address' in time for her to perfect her appeal to the circuit court within the 30 days as provided by Section 287.490.

The term 'last known address' has been given judicial interpretation in the case of Brumbaugh v. Travelers Indemnity Company, 396 S.W.2d 740, 743(7) (Mo.App.1965) where a policy of insurance provided for the mailing of cancellation notice to insured's last known address. The court there said (l.c. 743):

'The plaintiff's 'last known address' was that place where mail was most likely to reach her, and that would be her residence. * * *'

Courts of other jurisdictions have also adopted this practical and common sense definition of such statutory terms. See: Glenn v. Holub, 36 F.Supp. 941 (Dist.Iowa 1941) (non resident motorist statute); MacKenzie v. D.C. Unemployment Compensation Board, 129 U.S.App.D.C. 258, 393 F.2d 659, 660(1) (1968) (unemployment compensation law); Hendershot v. Ferkel, 74 Ohio App. 106, 57 N.E.2d 819, 821(3) (1943) (non resident motorist statute); State ex rel. Cronkhite v. Belden, 193 Wis. 145, 211 N.W. 916, 920(8), 57 A.L.R. 1218 (1927) (non resident motorist statute).

While at the time the appellant filed her notice of appeal to the circuit court, she was living at 301 Benton Boulevard, Kansas City, Missouri, there is nothing in the record to show when she moved to that address. She had testified under oath at the hearing before the Referee on November 29, 1972 that she lived at and her residence then was 3531 East 6th Street, Kansas City, Missouri and that certified record was before the commission when the final award was mailed to 405 South Colorado on September 10, 1973. So far as the commission's record of her claim was concerned, her 'last known address' was the 6th Street residence given in her sworn testimony. So far as this record is concerned, she may have still resided at the 6th Street address when the award was mailed or have left adequate forwarding information with the postal authorities.

The conclusion is inescapable that the underlying principle inherent in the terms of Sections 287.470 and 287.520 RSMo 1969, V.A.M.S., that the notice of the final award be reasonably calculated to reach her 'in due time to act thereon' would be destroyed if the procedures followed by the commission is this case were held to be within the contemplation of those statutory mandates. Those procedures were not in compliance with the statutes and the respondents' motion to dismiss in the circuit court was properly overruled and their motion to dismiss this appeal is hereby overruled.

The appellant's first point on this appeal is that the referee, commission, and the circuit court erred in not ruling upon her Motion to Suppress the deposition of Dr. J. A. Nigro. The relevant facts decisive of this point may be briefly stated. The employer and insurer took the deposition of Dr. J. A. Nigro before the initial hearing. The doctor had suffered a heart attack before the hearing and was unable to appear and testify. On the day of the hearing the claimant filed her motion to suppress that deposition and the referee deferred any ruling on the motion until such deposition was offered in evidence. The...