Cummins v. State Dept. of Public Health and Welfare
Decision Date | 24 May 1972 |
Docket Number | No. 9087,9087 |
Citation | 481 S.W.2d 639 |
Parties | Mrs. Birdie CUMMINS, Claimant-Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Respondent. |
Court | Missouri Court of Appeals |
Jerry D. Mee, Springfield, for claimant-appellant.
Elmore G. Crowe, Edward D. Summers, Jefferson City, for defendant-respondent.
This is an appeal by Mrs. Birdie Cummins (hereinafter called claimant) from the judgment of the Circuit Court of Greene County affirming a decision and order of the Director of the State Department of Public Health any Welfare on January 28, 1970, denying her application for permanent and total disability aid under § 208.051. 1 After we declined to undertake appellate review of a collection of papers certified by the circuit clerk (Cummins v. Public Health and Welfare, Mo.App., 468 S.W.2d 663--see Stacy v. Department of Public Health and Welfare, Mo.App., 468 S.W.2d 651), a transcript on appeal conforming to the requirements of the applicable Supreme Court Rules of Civil Procedure was filed and the cause has been briefed, argued and submitted.
From the decision of the division of welfare on October 27, 1969, denying claimant's application on the stated ground that she was medically ineligible for permanent and total disability aid, she appealed to the Director of the State Department of Public Health and Welfare (§ 208.080, subsec. 1); and on January 6, 1970, a hearing on that appeal was had before Referee C. J. Quimby, who stated at the outset that 'I am a referee appointed by the Director with the duty to conduct a fair hearing so that all competent evidence on the subject of the disability of Birdie Cummins is received, recorded and delivered to the Director.' § 208.080, subsec. 3.
Claimant's case was carefully developed at that hearing by the same attorney who appears on her behalf here. Claimant and her physician, Dr. Earl D. Russell, appeared in person and were interrogated in detail. Herschel Cummins, claimant's husband, made a fleeting appearance on the witness stand to verify the fact that he had been present while his wife deposed and to stamp her testimony as true in its entirety by an affirmative response to her counsel's interrogative invitation, 'if you were testifying yourself, would your testimony be truthful and substantially the same thing as she has testified to?' The only witness appearing on behalf of the division of welfare was caseworker Velma Foster, whose brief examination related to the four offered exhibits.
At the time of hearing, Mrs. Cummins, then 39 years of age, resided with her husband and five of their six children ranging in age from a daughter 19 to a son 6 on a rural route about eight miles west of Springfield. The oldest daughter was married and resided in Springfield. Without objection or hindrance, claimant testified at length concerning her physical condition and medical history from her first year in school to the time of hearing. We eschew a tedious and needless review of her testimony and that of her attending pnysician, Dr. Russell, since her counsel advises us, in his statement of facts here, that 'the main issue presented to the Director by the record . . . concerned evaluation of division (of welfare) Exhibit B,' a signed medical report from Dr. Robert E. Stufflebam, to whom the division had referred claimant pursuant to statutory authority and requirement. § 208.075. However, we note in passing that for some two years prior to the hearing (that being the period during which Dr. Russell had attended her) claimant had been 'on heart medication * * * both digitalis and quinidine on occasion,' and that her counsel produced at the hearing 'nine bottles of pills' obtained on prescriptions filled at 'City Hospital' and then taken by claimant for various stated purposes.
Exhibit B, Dr. Stufflebam's report, which was four typewritten pages in length with attached photostatic copy of an electrocardiogram, reflected a careful and comprehensive examination. It closed with the doctor's impression: and his comment: (All emphasis herein is ours.) In important particulars, this report was contradictory of or inharmonious with the testimony of Dr. Russell.
Only two questions were, or properly could have been, presented to the circuit court, i.e., whether a fair hearing was granted to claimant and whether the Director's decision was arbitrary and unreasonable. § 208.100(5); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 585(1); Powers v. State Dept. of Public Health & Welfare, Mo.App., 359 S.W.2d 23, 25(1). In her first two points relied on, claimant here complains that she was not granted a fair hearing (a) because the referee examined caseworker Foster, 'offered the exhibits into evidence, which he announced in advance that he was going to admit, cross-examined claimant . . ., and raised objections to evidence from Dr. Russell,' and (b) because the Director's decision and order did not satisfy claimant's review rights' under § 208.080, subsec. 3. As for prong (a) of this complaint, the transcript does not support the accusation that the referee 'offered the exhibits into evidence, which he announced in advance that he was going to admit.' On the contrary, when each of the division of welfare's four exhibits (Exhibits A to D, inclusive) was identified and offered, the referee stated the exhibit was 'about to be admitted' and informed claimant's attorney that was the appropriate time for him to interpose objections, if any; and, as a result of objections thus lodged, Exhibits A and D were not received in evidence. With respect to the other segments of prong (a), the record discloses (1) that the brief examination of caseworker Foster related solely to identification of exhibits, (2) that claimant's direct examination, recorded on twenty-six pages of the transcript, was uninterrupted by a single objection, and her cross-examination by the referee, covering only two pages, pertained to no controverted matter and motivated no objection by claimant's counsel, and (3) that the only 'objection' interposed by the referee during the sixteen-page direct examination of claimant's physician, Dr. Russell, was nothing more than a simple comment that a question as to why the witness would not recommend a certain test for claimant was 'repetitious' (as indeed it was), which comment nevertheless was followed without objection by the conclusionary statement of claimant's counsel concerning the same matter and Dr. Russell's elaborate confirmation thereof.
No error is assigned here as to any ruling by the referee; and our searching review of the transcript discloses no indication that claimant was in any respect limited or hindered in the presentation of evidence or that the referee in any wise intimidated, disparaged or discredited witnesses or manifested any hostility, animosity, bias or prejudice against claimant. Contrast Jones v. State Dept. of Public Health & Welfare, Mo.App., 354 S.W.2d 37. In these circumstances, the mere fact that the referee appointed by the Director to conduct the hearing also was charged with developing evidence and protecting the record on behalf of the division of welfare did not deprive claimant of a fair hearing. § 208.100(5); Wigand v. State Dept. of Public Health & Welfare, Mo.App., 454 S.W.2d 951, 957(12).
Prong (b) of claimant's complaint that she was not granted a fair hearing (i.e., that the Director's decision and order did not satisfy claimant's 'review rights' under Section 208.080, subsec. 3), as elaborated in her second point relied on, charges that 'the Director is to determine all questions presented by the appeal' and the evidence 'raises questions that were not answered in (his) decision and order.' However, since no authorities are cited under this point and there...
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