Davis v. General Elec. Co.

• Decision Date: 27 April 1999
• Docket Number: No. 21518,21518
• Citation: 991 S.W.2d 699
• Parties: Warda L. DAVIS, Respondent, v. GENERAL ELECTRIC COMPANY and Electric Mutual, Appellants.
• Court: Missouri Court of Appeals

Page 699

991 S.W.2d 699

Warda L. DAVIS, Respondent, v. GENERAL ELECTRIC COMPANY and Electric Mutual, Appellants.

No. 21518.

Missouri Court of Appeals,

Southern District,

Division One.

April 27, 1999.

Raymond E. Whiteaker, Whiteaker & Wilson, P.C., Springfield, for Appellant.

William D. Powell, Daniel, Clampett, Powell & Cunningham, L.L.C., Springfield, for Respondents.

Before PREWITT, P.J., CROW, J., and GARRISON, C.J.

PER CURIAM.

General Electric Company ("Employer") and Electric Mutual ("Insurer") appeal from a judgment of the Circuit Court of Greene County affirming a "Final Award Allowing Compensation" issued by the Labor and Industrial Relations Commission ("Commission"). The award granted benefits to Warda L. Davis ("Employee") under The Workers' Compensation Law, chapter 287, RSMo 1969, as amended. ¹

Employer and Insurer, henceforth referred to collectively as "Appellants," present two assignments of error.

Appellants' second point, which this court addresses first, avers that Commission and the circuit court erred in "finding Employee's claim was not barred by the statute of limitations in effect at the time of Employee's injury."

As noted earlier, ² Employee was injured February 14, 1973. At that time, § 287.430, RSMo 1969, was in force. It read, in pertinent part:

"No proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed ... within one year after the injury ..., or in case payments have been made on account of the injury ..., within one year from the date of the last payment...."

For convenience, this opinion henceforth refers to the above statute as "the 1969 statute of limitation." ³

Discussion of Appellants' second point requires an account of the procedural history of this case.

February 25, 1983 (ten years and eleven days after the injury). Employee files claim.

May 18, 1990. An administrative law judge ("ALJ") of the Division of Workers' Compensation holds an evidentiary hearing.

September 18, 1990. ALJ denies claim on ground that it "is barred by the statute of limitations." ALJ rejects Employee's contention that payments made by Employer's "group health insurance carrier" (a different insurance company than Insurer) were payments "made on account of the injury" and hence extended the deadline for filing the claim. ⁴

October 9, 1990. Employee files application for review with Commission. Sole claim of error is that ALJ wrongly held the claim was barred by the 1969 statute of limitation. Employee maintains ALJ should have ruled that the payments by Employer's "group medical insurance carrier" within the "period of limitation" extended the deadline, and the claim was filed within the enlarged "period of limitation."

January 10, 1992. Commission (in a two-to-one decision) affirms ALJ's decision and awards no compensation. ⁵

February 6, 1992. Employee files notice of appeal to Circuit Court of Greene County. ⁶

May 28, 1993. Circuit court enters judgment reversing Commission's denial of benefits. Circuit court holds 1969 statute of limitation "was tolled by the payment of medical bills by the employer through the fringe benefit health insurance plan provided by the employer." Consequently, declares circuit court: "[T]he claim is not barred by the Statute of Limitation." Circuit court remands claim to Division of Workers' Compensation for further proceedings.

June 29, 1993. Appellants file notice of appeal to this court from circuit court's judgment. Appeal is assigned number 18909.

July 29, 1993. This court issues order for Appellants to show cause why appeal 18909 should not be dismissed. The order notes, in pertinent part, "that the order entered by the Circuit Court of Greene County ... from which appellants ... seek to appeal, may not be appealable in that the action below was remanded ... for further proceedings" before the Division of Workers' Compensation. The order cites Labor and Industrial Relations Commission v. Hoffman, 825 S.W.2d 874 (Mo.App. W.D.1992), which dismissed an appeal from a circuit court order remanding to the Commission for additional proceedings in an employment security case.

August 16, 1993. Appellants voluntarily dismiss appeal 18909 without making response to the issue of appealability raised in the order of July 29, 1993.

January 22, 1996. Commission unanimously issues award granting Employee compensation for injury.

February 21, 1996. Appellants file notice of appeal from Commission's award to Circuit Court of Greene County.

January 7, 1997. Circuit court enters judgment affirming Commission's award.

February 14, 1997. Appellants file notice of appeal to this court from circuit court's judgment. This opinion addresses that appeal.

As reported earlier, Appellants' second point proclaims that Commission and the circuit court erred in concluding that Employee's claim was not barred by the 1969 statute of limitation. Employee responds to Appellants' second point by arguing that the medical payments by Employer's group health insurance carrier extended the one-year period of limitation and the claim was filed within the extended period.

This court, sua sponte, observed that inasmuch as Appellants voluntarily dismissed appeal 18909, thereby allowing the circuit court's judgment of May 28, 1993, to stand unchallenged, said judgment may have become the law of the case--a doctrine discussed infra--thereby barring Appellants from asserting in the instant appeal that Employee's claim is barred by the 1969 statute of limitation. This court invited further briefing and argument by the parties regarding that issue. The parties, in supplemental briefs and argument, addressed it.

Having considered the parties' briefs and arguments on that issue, this court, for the reasons set forth below, holds Appellants' second point is barred by the doctrine of the law of the case; hence this court does not reach the merits of the second point.

The doctrine of the law of the case is that an adjudication in an earlier appeal in the case is the law of the case as to all questions directly raised and passed upon, and is also the law of the case as to matters which arose prior to the first appeal and might have been raised thereon but were not. Steen v. Colombo, 799 S.W.2d 169, 174 (Mo.App. S.D.1990), citing Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, 319 (1951). The doctrine does not apply when the former ruling was palpably wrong, when there is a substantial difference in the evidence and facts upon the two trials, or where injustice would be done by adhering to the earlier adjudication. Steen, 799 S.W.2d at 174, citing Norris, 236 S.W.2d at 319, and Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650, 655 (banc 1911).

Whether Employee's claim was barred by the 1969 statute of limitation was the first issue decided in this case. As we have seen, the ALJ decided that issue adversely to Employee on September 18, 1990. Commission affirmed the ALJ's decision on that issue January 10, 1992.

On appeal by Employee from Commission's decision, the circuit court reversed Commission on May 28, 1993. The circuit court (1) squarely held Employee's claim was not barred, and (2) remanded the claim to the Division of Workers' Compensation for further proceedings.

Appellants undertook to challenge the circuit court's ruling by appeal to this court (appeal 18909), but dismissed the appeal August 16, 1993. That left the circuit court's judgment of May 28, 1993, intact.

As this court comprehends the record, when this case was remanded to Commission following Appellants' dismissal of appeal 18909, Commission did not send the case back to the Division of Workers' Compensation. Instead, Commission permitted "rebriefing by the parties," then issued its award granting compensation based on a "review of the hearing record" (evidently the transcript of the testimony and the exhibits presented to the ALJ at the hearing May 18, 1990). Consequently, no new evidence was presented on the statute of limitation issue after Appellants dismissed appeal 18909 on August 16, 1993.

Commission's award of January 22, 1996, granting Employee compensation for the injury, demonstrates that Commission believed the statute of limitation issue had been finally resolved favorably to Employee and adversely to Appellants when Appellants dismissed appeal 18909 on August 16, 1993. Commission's award of January 22, 1996, reads, inter alia:

"Following resolution of the issues set forth on appeal,[ ⁷] we find the following issues remain to be decided; causation, additional TTD owed, liability of past medical expenses and necessity of future medical care. Claimant does not seek permanent partial or permanent total disability benefits."

Commission's assumption that the statute of limitation issue was finally resolved when Appellants dismissed appeal 18909 on August 16, 1993, was correct.

Employee's appeal to the circuit court on February 6, 1992, was the first appeal in this case. As recounted earlier, the circuit court, on May 28, 1993, held Employee's claim was not barred by the 1969 statute of limitation. Although Appellants brought appeal 18909 to this court from the circuit court's judgment, Appellants permitted the circuit court's judgment to stand when they dismissed appeal 18909 on August 16, 1993. Under the doctrine of the law of the case, the circuit court's judgment of May 28, 1993, became the law of this case from and after August 16, 1993, unless one of the exceptions to that doctrine applies.

As noted earlier, no new evidence was presented to Commission on the statute of limitation issue--or any other, for that matter--after the 1993 remand. Thus, the exception to the doctrine based on new or different evidence could have no application.

The only exception argued by Appellants is that to deny review on the merits of the statute of limitation issue works an injustice on them. Largely, Appellants claim an unjust result by arguing that the present...