Ellis v. State Dept. of Public Health and Welfare, 7310

• Decision Date: 24 February 1955
• Docket Number: No. 7310,7310
• Citation: 277 S.W.2d 331
• Parties: John R. ELLIS, Plaintiff-Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 331

277 S.W.2d 331

John R. ELLIS, Plaintiff-Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Appellant.

No. 7310.

Springfield Court of Appeals, Missouri.

Feb. 24, 1955.

John M. Dalton, Atty. Gen., Paul McGhee, Asst. Atty. Gen., for defendant-appellant.

David C. Black, Robert A. McIllrath, Flat River, C. M. Buford, Ellington, for plaintiff-respondent.

STONE, Judge.

John R. Ellis (hereinafter referred to as claimant), who had been receiving aid to dependent children (hereafter referred to as ADC) under Section 208.040 ¹ 'was removed from the rolls in September, 1952,' by the Division of Welfare (hereinafter referred to as the Division) because, as the county director said, 'physical examination revealed that the children are no longer deprived of parental support due to physical incapacity of the father.' Claimant duly appealed to the Director of the Department of Public Health and Welfare (hereinafter referred to as the Director), a hearing thereafter was conducted by a referee, and upon the record then made the Director 'found that claimant is not incapacitated as contemplated by the statute' and affirmed the order removing claimant from the ADC roll. Section 208.080. On subsequent appeal, the circuit court found that claimant 'did not have a fair hearing * * * nor a fair determination on the record' and remanded the proceeding for redetermination of the issues by the Director. Section 208.100(5). The Department of Public Health and Welfare (hereinafter called the Department) appeals from that judgment.

Claimant, 57 years of age at the time of hearing in January, 1953, lived in Reynolds County with his wife, seven of their eight children ranging in age from 5 years to 18 years, and a stepson 21 years of age Claimant said that he had worked 'at part near everything under the sun' in his 'younger days' but that he had had no 'regular employment since 1943.' According to claimant, he had 'what they call * broken down nerves,' impaired hearing, continual pain in his neck which 'sometimes * hurts so bad it makes my head hurt,' 'weak bad spells,' neuritis and rheumatism. He had lost his right index finger and two joints of his right middle finger in a saw mill accident four or five years before the hearing. Dr. J. R. Pyrtle of Centerville, Missouri, testified that, in his opinion, claimant was not 'physically able to hold down a regular job of work that would require manual labor.' In short, claimant's evidence substantially supported his contention that he was physically incapacitated for manual labor--the only character or work he was fitted to do.

Three exhibits, all on printed forms, were 'made a part of the record' by the referee. One was a 'medical report' from Dr. R. C. Engelhardt of Poplar Bluff, to whom claimant had been sent by the county director for re-examination. The doctor concluded that claimant had 'no disability.' Another exhibit was a form 'certification' from Dr. Engelhardt that 'this person does not have a physical or mental disability which renders him incapacitated to work in the usual manner at any occupation for which his age, training, experience, or education would fit him.' Both the 'medical report' and the 'certification' were dated July 19, 1952. The third exhibit, dated August 1, 1952, was described as a 'report of the medical review team' in Jefferson City and is hereinafter referred to as 'the medical review team report.' The County director, who was the only witness for the Division, testified that he had forwarded the 'medical report' of Dr. Engelhardt (together with 'some previous medical reports' not in evidence) to the medical review team, which 'is made up of two people, a doctor and a welfare worker, who observe and review the medical information submitted to them and * make a decision on whether sufficient physical incapacity exists to justify public assistance.' The medical review team report was captioned 'Social Information Summary' and consisted of three sections, i. e., '(A) Identifying Information,' '(B) Social Information,' and '(C) Certification of Medical Review Team,' in precisely the same language as that of Dr. Engelhardt's 'certification', that claimant was not physically or mentally incapacitated.

In cases of this character, the circuit court reviews the record to determine whether 'a fair hearing and determination of the applicant's eligibility and rights under this law' has been granted by the Director and whether 'his decision was arbitrary and unreasonable'. Section 208.100(5); Campbell v. State Social Security Commission, 239 Mo.App. 380, 191 S.W.2d 1015, 1017(1); Chapman v. State Social Security Commission, 235 Mo.App. 698, 147 S.W.2d 157, 159(3). But, since judicial review in such cases is of final decisions and findings which are quasijudicial and affect private rights [Howlett v. State Social Security Commission, 347 Mo. 784, 149 S.W.2d 806, 809(3)] and is in cases in which a hearing by the administrative officer is required by law [Section 208.080(3)], the self-enforcing provisions of the Constitution of Missouri, Article V, Section 22, 2 V.A.M.S., require that such judicial review 'shall include the determination whether the same are authorized by law, and * * * are supported by competent and substantial evidence upon the whole record.' Consult Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149, 150(2); State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209(3).

If claimant has been accorded 'a fair hearing and determination' [Section 208.100(5)] and if the findings and decision of the Director are 'supported by competent and substantial evidence upon the whole record' [Const. of Missouri, Art. V, Sec. 22] and are not 'arbitrary and unreasonable' [Section 208.100(5)], the Director's decision must be affirmed; otherwise, the cause should be remanded for redetermination of the issues by the Director. Collins v. Division of Welfare, Mo., 270 S.W.2d 817, 819(2), and cases there cited. In determining whether the Director's decision is supported by substantial evidence, we may consider only the competent evidence favorable thereto, [Bollinger v. State Department of Public Health & Welfare, Mo.App., 254 S.W.2d 257, 259(3); Linton v. State Department of Public Health & Welfare, Mo.App., 252 S.W.2d 841, 843(4)], and we may not say that the Director's decision was arbitrary and unreasonable merely because we might have reached a contrary conclusion on the same evidence, [Brattin v. State Social Security Commission, Mo.App., 194 S.W.2d 536, 538-539(2); Hardy v. State Social Security Commission, Mo.App., 187 S.W.2d 520, 523(7)].

Careful consideration of the record, which we must take as it comes to us, [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2)], demonstrates that, in removing claimant from the ADC roll, the Division acted on the medical review team report which, in turn, was based on the medical report and certification of Dr. Engelhardt. The referee, who also served as counsel for the Director at the hearing, stated that 'as I understand it, this case was closed on September 4, 1952, because from a physical examination it was found that you (claimant) were not incapacitated.' When claimant's attorney subsequently asked whether 'this (medical review team) report is based on the examination of Dr. Engelhardt,' the referee answered 'yes'; and, an inquiry to the county director whether 'based upon the report of the medical review team, you closed Mr. Ellis' case' elicited the unequivocal reply 'yes, sir.' At the conclusion of the hearing, the referee said that 'under the law we designate the doctor and go by his statement.'

It is now suggested on appeal that, aside from the medical review team report and the medical report and certification of Dr. Engelhardt (hereinafter collectively referred to as the exhibits), 'there is substantial evidence to support the finding of the Director.' It is true that the county director testified that claimant had 'owned a truck and a small saw mill until after the case was closed'; that he had 'sold wood to the charcoal plant,' 'fire wood around Centerville' and 'ties to the Moss Tie Company at Glover'; and, that the records of the charcoal plant and the tie company (none of which were produced at the hearing) showed that, during a period of six months ending in June, 1952, claimant had sold 'an average of one load of ties and one load of cord wood' each week and had earned about $35 per week. The reception of evidence in such hearings should be governed by the same rules as are followed in the courts [Burley v. State Social Security Commission, 236 Mo.App. 930, 163 S.W.2d 95, 96(5)], particularly so in view of the fact that Rule 30 of the Division filed in the office of the Secretary of State of January 26, 1951 [Section 536.020(1)] provides that 'the rules of evidence as applied to civil cases in the State of Missouri shall be applied.' But, there having been no objection to the hearsay and conclusion evidence (other than the three exhibits) offered by the Division in the instant case, such evidence was properly before the Director in the first instance and the reviewing court on appeal, [Burley v. State Social Security Commission, supra], for relevant evidence received without objection may be considered although it would have been excluded upon appropriate objection, [Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539(4); Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 340(7), 172 A.L.R. 344; DeMoulin v. Roetheli, 354 Mo. 425, 189 S.W.2d 562, 565(3); Doyle v. St. Louis Merchants' Bridge Terminal R. Co., 326 Mo. 425, 31 S.W.2d 1010, 1012(4), certiorari denied 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1435].

However, the Division's evidence in the instant case (other than the three exhibits) bearing upon claimant's physical incapacity [Section 208.040(2)] was 'vague and indefinite and very poorly presented and developed', [Brattin v. State Social Security Comm...