Conners v. Missouri Division of Family Services, 40175

• Decision Date: 09 January 1979
• Docket Number: No. 40175,40175
• Citation: 576 S.W.2d 568
• Parties: Mary Ann CONNERS, Appellant, v. MISSOURI DIVISION OF FAMILY SERVICES, Respondent.
• Court: Missouri Court of Appeals

Page 568

576 S.W.2d 568

Mary Ann CONNERS, Appellant, v. MISSOURI DIVISION OF FAMILY SERVICES, Respondent.

No. 40175.

Missouri Court of Appeals, Eastern District, Division Four.

Jan. 9, 1979.

Kim C. Brown, Legal Aid Society of City of St. Louis & County of St. Louis, St. Louis, for appellant.

Paul T. Keller, Mo. Div. of Family Services, Jefferson City, for respondent.

CRIST, Judge.

Administrative proceeding. Respondent's Medical Review Team (hereinafter "M.R.T.") denied claimant's application for general relief and Medicaid. After an appeal hearing, respondent's director found that claimant was neither unemployable nor disabled, the respective criteria for the two assistance programs. This appeal from the director's decision followed.

The scope of our review is governed by V.A.M.S. § 208.100(5), directing us to inquire into "whether or not a fair hearing has been granted the applicant," and by V.A.M.S.Const. Art. V, § 22, requiring a determination of whether the director's decision is "supported by competent and substantial evidence upon the whole record," Hill v. State Dept. of Public Health & Welfare, 503 S.W.2d 6, 11 (Mo. banc 1973). This latter provision requires a determination of whether, considering all the evidence adduced on both sides of a disputed issue, the administrative body could reasonably have reached the challenged decision. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975).

Claimant's first contention is that she was denied a fair hearing due to the "bias" of the hearing officer. This "bias" is allegedly revealed by the hearing officer's comment on the record that she lacked the power to recommend a final decision to the director. Such conduct does not constitute denial of a fair hearing. See Cummins v. State Dept. of Public Health & Welfare, 481 S.W.2d 639, 642 (Mo.App.1972).

Claimant also contends that she was denied a fair hearing in that the physician member of the M.R.T. was not present for cross-examination purposes, even though the M.R.T. decision was admitted into evidence. Claimant's failure to subpoena the physician as provided for in 13 C.S.R. 40-2.160(3)(C) precludes her from now complaining of a deprivation of the right to cross-examine the doctor. Richardson v. Perales, 402 U.S. 389, 404-5, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Claimant also complains that the M.R.T. decision was erroneously admitted into evidence in that it was hearsay. The admission of hearsay evidence does not automatically demonstrate that a fair hearing was not granted, Garrard v. State Dept. of Public Health & Welfare, 375 S.W.2d 582, 587 (Mo.App.1964). The M.R.T. decision itself consists of a one-page, pre-printed form containing the bare conclusion...