Henson v. Henson, 27479.

Citation195 S.W.3d 479
Decision Date07 July 2006
Docket NumberNo. 27479.,27479.
PartiesRichard HENSON, Claimant-Appellant, v. Richard HENSON d/b/a Richard Henson Construction, Liberty Mutual Insurance Company, Employer/Insurer-Respondents, and Treasurer of Missouri as Custodian of the Second Injury Fund, Additional Party-Respondent.
CourtCourt of Appeal of Missouri (US)

Lawrence E. Ray, St. Robert, for Appellant.

Edward M. Vokoun, Richard E. Salmi, St. Louis, for Respondents Richard Henson Construction and Liberty Mutual Insurance Company.

Cara Lee Harris, Springfield, for Respondent Treasurer of the State of Missouri, as Custodian for the Second Injury Fund.

Before RAHMEYER, P.J., PARRISH, J., and LYNCH, J.

PER CURIAM.

This case arises out of a claim for workers' compensation benefits filed by Richard Henson ("Appellant") claiming entitlement to workers' compensation benefits from Henson Construction Company ("Employer"), Liberty Mutual Group ("Respondent") and from the Second Injury Fund, based on an injury sustained in the course of employment on October 9, 1995. Appellant, a sole proprietor of Richard Henson Construction Company, claimed he applied for workers' compensation insurance from a Shelter Insurance agent, who could not provide the requested insurance. The Shelter agent was allowed to submit an application for insurance to the National Council on Compensation Insurance ("NCCI") to acquire an assigned risk pool policy for the insurance and did so. Appellant received workers' compensation insurance through Respondent and was subsequently injured on the job.

A hearing was conducted in which the issues were (1) whether Employer was a covered employer, (2) whether Appellant was a covered employee, (3) the nature and extent of disability, and (4) the liability of the Second Injury Fund. The administrative law judge ("ALJ") rendered a decision on June 3, 2005, finding that Appellant, as a sole proprietor, did not elect coverage as required under section 287.035.11 and, therefore, was not a covered employee entitled to benefits under Chapter 287.

Appellant filed an Application for Review on June 16, 2005, and the Labor and Industrial Relations Commission ("the Commission"), with two members sitting, issued a Final Award Denying Compensation on December 23, 2005, which affirmed the decision of the ALJ and denied compensation. Appellant then filed a Notice of Appeal to this Court on January 13, 2006.

Appellant addresses four points on appeal; however, because of fatal deficiencies in Appellant's brief, the appeal is dismissed without considering the merits of Appellant's argument.2 Rule 84.043 controls the basic rules for writing and filing appellate briefs. Eddington v. Cova, 118 S.W.3d 678, 680 (Mo.App. S.D.2003). Rule 84.04(d)(2) states:

Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:

(A) identify the administrative ruling or action the appellant challenges;

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: `The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].'

Rule 84.04(d)(2). When a party appeals from an administrative decision, the point must identify the administrative ruling the appellant is challenging, concisely state the legal reasons for the appellant's claim of reversible error, and explain why the legal reasons support the claim of reversible error. Nicholson v. Transamerica Occidental Life Ins. Co., 144 S.W.3d 302, 306 (Mo.App. W.D.2004); Rule 84.04(d)(2). "The requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts." Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). "[T]he purpose of this rule is to give notice to the opposing party as to the precise matters that must be contended with and to inform the court of the issues presented for review." Eddington, 118 S.W.3d at 681. The compliance with the Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and arguments that have not been asserted. Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 562 (Mo.App. W.D.2001).

Appellant commits the same or similar errors in each of his points, thus, in an effort to avoid repetition, we will first set forth all four of his Points.

Point I:

The workers' compensation commission erred when they heard oral arguments and decided the issues in the case with only two commissioners presiding after announcing at oral argument that the session was being recorded so that all three commissioners could participate when one was not physically present [at the oral argument].

Point II:

The workers' compensation commission erred in denying [Appellant] benefits by failing to follow and enforce the state regulations regarding the assigned risk insurance system.

Point III:

The workers' compensation commission failed to hold [Respondent] and the [NCCI] responsible for failing to follow state rules or regulations on implementing [Appellant's] insurance coverage as agent for the insurance carrier [Respondent].

Point IV:

The Second Injury Fund should be liable for preexisting disability that hinders employment.

Point I, arguably, complains that the Commission erred in hearing oral arguments and deciding the issues, but the failure to state the legal reason for the error makes the complaint of the ruling meaningless. As noted, Point I fails to provide any insight into the legal reason for claimed error. It is not clear whether Appellant is claiming there is legal error in holding oral arguments with two commissioners or if the legal error was the announcement that the argument would be recorded for the benefit of the third commissioner. Only Point II claims a broad category of error in denying benefits, however, the failure to state a valid legal reason for error in denying benefits creates a decisive flaw in the point. Point II portends to find fault with the Commission's failure to award benefits but adds by "failing to follow and enforce the state regulations regarding the assigned risk insurance system" to the claim of error. If "failing to follow state regulations" is supposed to be the legal reason for error, the point fails to give the precise administrative ruling on which state regulation the Commission is accused of failing to follow.

Likewise, Point III posits error for failing to hold Respondent and a non-party responsible for failing to follow state rules or regulations, but does not state the legal reason for its claim of reversible error. There is no claim of a legal reason for error in Point IV at all. It is not sufficient to merely set out what the alleged errors are without stating why the ruling is erroneous. Murphy v. Aetna Cas. & Sur. Co., 955 S.W.2d 949, 950 (Mo.App. S.D.1997). Points III and IV fail to state any administrative ruling that is challenged.

Significantly, none of the four points "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(2)(C). We are provided almost no insight into the facts of this case which support a claim of an error in administrative agency ruling or action. This Court "must be informed wherein the testimony or evidence gives rise to the ruling for which [A]ppellant contends." Murphy, 955 S.W.2d at 950 (quoting Thummel, 570 S.W.2d at 685).

Additionally, Rule 84.04(e)4 requires that the argument section of the brief include a concise statement of the applicable standard of...

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    ..."becoming an advocate for Plaintiff `by speculating on facts and arguments that have not been asserted.'" Id. (quoting Henson v. Henson, 195 S.W.3d 479, 482 (Mo.App. S.D.2006)). "The policy of the appellate courts in this State is to decide a case on the merits rather than technical deficie......
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    ...1980). The failure to state a legal reason for a claimed error is a fatal and decisive flaw in a point relied on. Henson v. Henson, 195 S.W.3d 479, 481-82 (Mo.App. 2006). "To speculate as to [aPage 18 legal reason] would force us to don the cap of advocacy, contrary to our proper appellate ......
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