Kramer v. Bill's Marine, Ltd.

• Decision Date: 02 May 1995
• Docket Number: No. 66853,66853
• Citation: 897 S.W.2d 213
• Parties: Donald KRAMER, Petitioner/Appellant, v. BILL'S MARINE, LTD. and Fireman's Fund Insurance Company, Respondents/Respondents.
• Court: Missouri Court of Appeals

Page 213

897 S.W.2d 213

Donald KRAMER, Petitioner/Appellant, v. BILL'S MARINE, LTD. and Fireman's Fund Insurance Company Respondents/Respondents.

No. 66853.

Missouri Court of Appeals,

Eastern District,

Division One.

May 2, 1995.

W.W. Sleater, Kirkwood, for appellant.

William E. Paasch, Kleinschmidt, Przybek & Frayne, St. Louis, for respondents.

REINHARD, Presiding Judge.

Employee appeals from an order of the circuit court sustaining the decision of the Labor and Industrial Relations Commission (Commission) denying his second motion to change its award due to a change of employee's condition. We reverse and remand.

On February 20, 1980, employee filed a claim for compensation due to a work related injury to his back occurring on April 2, 1979. His claim described the nature of his injury as "[h]erniated or ruptured disc, traumatic arthritis of the back." A hearing was held before an administrative law judge (ALJ). The parties stipulated that employee was suffering from a 35% permanent partial disability but litigated other issues. On March 7, 1985, the ALJ ordered an award to employee for a 35% permanent partial disability to his low back. Employer was ordered to pay $361.43 for three and one-half weeks of temporary total disability and $90 per week for one-hundred-forty weeks for the permanent partial disability. Employer was further ordered to pay $8,550.90 in medical expenses or incidence to medical care incurred by employee. The order made no provisions for future medical expenses related to employee's injury.

Employer applied for a review of the ALJ's award with the Commission pursuant to § 287.480, RSMo 1994, ¹ on March 18, 1985. On March 26th, employee filed a motion to re-open his claim due to a change in his condition. In this motion, he alleged that, since the hearing, he "has been subject to excruciating back and leg pain requiring him to take Percodan and other pain killers regularly...." A hearing was held on the employee's motion. The Commission concluded that employee was not suffering from a change in his condition and denied his motion. ² On the review of the ALJ's award requested by employer, the Commission affirmed and adopted the ALJ's findings and conclusions. ³

Employee appealed the Commission's award and rulings to the circuit court which upheld the Commission. Employee further appealed, and the case was brought before us. Kramer v. Labor & Indus. Rel. Com'n, 799 S.W.2d 142 (Mo.App.1990). We held that the Commission's denial of employee's motion to re-open was supported by substantial and competent evidence. Id. at 145. We found that employee had "not shown the existence of any new symptoms not known at the original hearing. Nor [had] his condition become substantially worse.... [Employee] presented no evidence of a changed condition." Id. at 144-45. However, we remanded the case to the Commission to modify the award to include interest on the disability awards and medical compensation. Id. at 145-46. In accordance with our decision, the Commission issued a modified award on July 31, 1991.

On February 25, 1992, employee filed a second motion pursuant to § 287.470 to re-open his claim due to a change of conditions. This motion contained two counts. Count I reads, inter alia:

3. Since October, 1991, the employee has been subject to a new and different type of pain that is much more severe, described as in the nature of an electric shock or severe heat pains. He has been told by his doctor that calcium deposits and spurring have narrowed the spinal passages causing traumatic arthritis. His doctor has recommended a CAT Scan, myelogram, x-rays and other tests to confirm this diagnosis, and as a guide to what further medical attention is indicated.

4. These procedures involve considerable expense. The right to medical aid is a component of the compensation due an injured worker under Section 287.140.1, R.S.Mo. The statute entitles the worker to a regimen of medical treatment that may be required to cure and relieve from the effects of the injury to restore the body to the optimum physical soundness. The employee is entitled to treatment which gives comfort (relieves) even though restoration to soundness (cure) is beyond avail. Employee's present condition has a causal flow between the original compensable injury and his present condition.

In Count II, he alleged "[t]he employer and insurer have failed and refused to pay compensation or to provide medical attention to the injured employee." He claimed this failure caused him injury. Therefore, since payment was required to comply with the statutes of this state, employee sought to have his award increased by the 15% penalty provided in § 287.120.4. ⁴

The Commission denied employee's second motion without an evidentiary hearing. The Commission did set forth the reasons for its decision in an order. The Commission noted the following testimony of employee given at the hearing conducted for the first motion to re-open:

Yeah, that's never changed. You've got a backache all the time, it hurts 24 hours a day, 7 days a week; and all of a sudden, something will happen, it will wake you up, you turn wrong in bed and it's in spasm, and you're about to tear your hair. That's been going on since 1979.

The Commission concluded that employee's second motion alleged a condition of the same character as the injury compensated for in its initial order, i.e. "the employee has had continuous and severe back pain since 1979." Thus, the Commission found no changed condition. Count II was denied without discussion. This decision was affirmed in the circuit court.

On appeal in a workmen's compensation case, we review the whole record, including legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission. Blissenbach v. General Motors Assembly Div., 650 S.W.2d 8, 11 (Mo.App.1983). This court may modify, reverse, remand for rehearing or set aside an award or decision of the Commission only if the Commission's actions were unauthorized by law or in excess of its authority, fraudulent, unsupported by the facts as found by the Commission, or unsupported by competent evidence. Ludwinski v. National Courier, 873 S.W.2d 890, 891-92 (Mo.App.E.D.1994); § 287.495.

We shall initially address employee's appeal concerning the denial of Count II of his motion to re-open. Section 287.120.4 provides for a fifteen-percent penalty "[w]here the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission,...." § 287.120.4. Employee has asked that this penalty be assessed to his original award. However, the employee did not raise this issue in his appeal of the original award, and this award has now become final. See Winschel v. Stix, Baer & Fuller Dry Goods Co., 77 S.W.2d 488, 491 (Mo.App.1934). Allegations pursuant to this section or complaints of a failure to properly assess this penalty cannot be brought under a § 287.460 change of condition motion. Denial of Count II was proper.

Employee also appeals the denial of Count I. He argues, inter alia, the Commission acted without or in excess of its powers and denied him his rights to due process by not holding an evidentiary hearing and that the denial was not supported by sufficient, competent and substantial evidence.

Section 287.470 provides, in pertinent part:

Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may at any time upon a rehearing after due notice to the parties interested review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter,....

Neither party has cited a case wherein the Commission's decision not to hold a hearing on a motion to re-open has been reviewed. Employer suggests applying simple principles of statutory construction. The statute uses the permissive term "may" to describe the manner the Commission may act; therefore, employer argues, a hearing on such a motion is not mandatory upon the Commission. In further support of this argument, employer cites several cases reviewing the Commission's right to receive or deny additional evidence under a § 287.480 review of an ALJ's award. ⁵ These cases hold that "the receipt of additional evidence rests initially in the sound discretion of the commission and the exercise of such discretion will not be disturbed on appeal unless it is shown to be arbitrary or unreasonable." Cagle v. Regal Plastics Company, 522 S.W.2d 7, 11-12 (Mo.App.1975); see, also, Hatter v. Cleaning Service Co., 814 S.W.2d 951, 956 (Mo.App.1991); Ross v. Safeway Stores, Inc., 738 S.W.2d 611, 617 (Mo.App.1987).

Clearly, the power of the Commission to dismiss a motion to re-open is not a "raw, unbridled power." Cade v. Bendix Corp., 564 S.W.2d 608, 610 (Mo.App.1978) (speaking of the power to dismiss a workmen's compensation claim). "Like comparable ... powers possessed by both judicial and quasi-judicial bodies, it is subject to judicial review to ferret out and remedy arbitrary or capricious dismissals which smack of abuses of discretion." Id. An abuse of discretion occurs when the Commission acts without sufficient competent evidence in the record to warrant that action, and we are empowered to reverse that action within our scope of review. Ross, 738 S.W.2d at 616-17; see § 287.495.1.

Section 287.470 invests the Commission with continuing jurisdiction over a case so that the award may be altered to reflect an unanticipated change in the employee's condition. In describing the similar former version of this section (Mo.St.Ann. § 3342, p. 8273), we stated:

But though the commission is invested with such a continuing jurisdiction over a case once brought before it, it is nevertheless to be borne in mind that its final award, when once made, partakes of...