Lexow v. Boeing Co.

• Decision Date: 15 March 2022
• Docket Number: SC 99199
• Parties: Michael A. LEXOW, Appellant, v. BOEING CO., Employer, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Supreme Court

643 S.W.3d 501

Michael A. LEXOW, Appellant,

v.BOEING CO., Employer,andTreasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

No. SC 99199

Supreme Court of Missouri, en banc.

Opinion issued March 15, 2022

Lexow was represented by Thomas J. Gregory of Mogab & Hughes Attorneys PC in St. Louis, (314) 241-4477.

The treasurer was represented by Madalyn J. Campbell of the attorney general's office in St. Louis, (573) 751-3321.

Robin Ransom, Judge

Michael A. Lexow ("Claimant") appeals the decision of the Labor and Industrial Relations Commission ("Commission") reversing the award of the Administrative Law Judge ("ALJ") and denying him permanent total disability ("PTD") benefits. Because Claimant's brief fails to comply with the mandatory and straightforward rules governing the contents of an appellant's briefs, particularly those pertaining to points relied on, this Court dismisses the appeal.

Background

Claimant sustained work-related carpal tunnel syndrome

in his left arm and hand. He settled his claim against the employer/insurer for this primary injury. Claimant filed a claim against the Second Injury Fund ("Fund") seeking claims for PTD as a result of the combination of the primary injury and numerous preexisting conditions. The ALJ determined the Fund was liable. The Fund filed an application for review with the Commission.

The Commission denied his claim, concluding section 287.220.3(2)¹ requires a claimant to prove PTD resulting from the combination of the primary injury and a single qualifying preexisting disabling condition to receive PTD benefits from the Fund. The Commission also found Claimant's preexisting bilateral carpal tunnel syndrome

, which was claimed to have resulted from an occupational disease, was not "[a] direct result of a compensable injury as defined in section 287.020. " See section 287.220.3(2)(a)a(ii) (emphasis added). Rather, the Commission determined the preexisting bilateral carpal tunnel syndrome was an occupational disease as defined in section 287.067 and, as a result, did not meet the conditions of section 287.220.3(2)(a)a(ii).

Claimant appealed to the court of appeals. Explicitly noting the manner in which Claimant's brief violated Rule 84.04, the court of appeals exercised its discretion to provide ex gratia review. Following the analysis of this Court in Treasurer of State v. Parker , 622 S.W.3d 178 (Mo. banc 2021),² the court of appeals remanded for a factual determination of which of Claimant's preexisting conditions qualified under section 287.220.3(2)(a)a and for a determination of whether Claimant was entitled to PTD benefits if there were multiple qualifying preexisting disabling conditions. The court of appeals further held the Commission erred in finding Claimant's bilateral carpal tunnel syndrome

did not satisfy section 287.220.3(2)(a)a(ii), finding an occupational disease that met section 287.067's definition and requirements is a "compensable injury" under the workers’ compensation law and meets section 287.220.3(2)(a)a(ii)’s mandate that the preexisting disability be "[a] direct result of a compensable injury as defined in section 287.020."

After considering the Fund's application for transfer, this Court granted transfer³ on the Fund's following question of purported general interest and importance: "Whether the lower court's construction of [section] 287.220.3(2)(a)a(ii) disregards plain language and misinterprets legislative intent of the [s]ection by including occupational diseases in the category, thereby expanding the Fund's liability." Claimant filed a substitute brief with this Court, the Fund filed its brief, and the case was argued and submitted.

Standard of Review

This Court reviews the Commission's decision to determine if it is "supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, sec. 18 ; see also section 287.495. Questions of statutory interpretation are subject to de novo review. Parker , 622 S.W.3d at 180-81.

Analysis

Before being able to reach the merits of the appeal, this Court considers the Fund's argument that Claimant's first point relied on violates this Court's rules related to briefing, leaving nothing in the point for review. In doing so, this Court likewise examines Claimant's second point relied on and the remainder of the brief for compliance with the rules.

Rule 84.04 plainly sets forth the required contents of briefs filed in all appellate courts. "Rule 84.04's requirements are mandatory." Fowler v. Mo. Sheriffs’ Ret. Sys. , 623 S.W.3d 578, 583 (Mo. banc 2021). Although this Court prefers to reach the merits of a case, excusing technical deficiencies in a brief, it will not consider a brief "so deficient that it fails to give notice to this Court and to the other parties as to the issue presented on appeal." J.A.D. v. F.J.D. , 978 S.W.2d 336, 338 (Mo. banc 1998). Moreover, this Court's preference to reach the merits of a case when presented with a deficient brief must be balanced with the implication of such consideration. Thummel v. King succinctly explains the importance of adherence to briefing rules:

When counsel fail in their duty by filing briefs which are not in conformity with the applicable rules and do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency. Courts should not be asked or expected to assume such a role. In addition to being inherently unfair to the other party to the appeal, it is unfair to parties in other cases awaiting disposition because it takes from them appellate time and resources which should be devoted to expeditious resolution of their appeals.

570 S.W.2d 679, 686 (Mo. banc 1978).

Central to the formation of a brief are an appellant's points relied on. "The function of [points relied on] is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review." Wilkerson v. Prelutsky , 943 S.W.2d 643, 647 (Mo. banc 1997). A deficient point relied on requires the respondent and appellate court to search the remainder of the brief to discern the appellant's assertion and, beyond causing a waste of resources, risks the appellant's argument being understood or framed in an unintended manner. Scott v. King , 510 S.W.3d 887, 892 (Mo. App. 2017). "A point relied on which does not state ‘wherein and why’ the trial court [or administrative agency] erred does not comply with Rule 84.04(d) and preserves nothing for appellate review." Storey v. State , 175 S.W.3d 116, 126 (Mo. banc 2005).

The specific requirements for points relied on for review of an administrative agency decision are set out in subdivision (d)(2) of Rule 84.04. That provision requires each point to "(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 rule itself provides a simple template for an appellant to follow to ensure compliance with the rule:

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).

Rule 84.04(d) also requires separate points to challenge separate rulings or actions. Consolidating "multiple, independent claims" into a point is not permitted. Kirk v. State , 520 S.W.3d 443, 450 n.3 (Mo. banc 2017). In other words, a single point relied on may not be multifarious. Id. "Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing for review." Macke v. Patton , 591 S.W.3d 865, 869 (Mo. banc 2019) ; see also Rule 84.13(a) (noting "allegations of error not briefed or not properly briefed shall not be considered in any civil appeal").

With these tenets reexplained, this Court now turns to Claimant's points relied on, the first of which states:

(i) THE COURT OF APPEALS CORRECTLY REVERSED THE DECISION OF THE INDUSTRIAL COMMISSION DENYING BENEFITS TO CLAIMANT SINCE THE COMMISSION ERRONEOUSLY APPLIED THE WRONG LEGAL STANDARD BY ONLY TAKING EACH QUALIFYING PRE-EXISTING DISABILITY STANDING ALONE TO DETERMINE IF IT COMBINED WITH THE DISABILITY FROM THE PRIMARY INJURY TO RENDER THE CLAIMANT PERMANENTLY AND TOTALLY DISABLED INSTEAD OF CONSIDERING ALL OF CLAIMANT'S QUALIFYING DISABILITIES TOGETHER IN COMBINATION WITH THE PRIMARY INJURY.

(ii) THE COURT OF APPEALS ERRED IN REMANDING THE CASE TO THE COMMISSION TO MAKE FACTUAL FINDINGS AS TO WHICH OF CLAIMANT'S PRE-EXISTING CONDITIONS QUALIFY UNDER THE FOUR ELIGIBILITY CRITERIA LISTED IN 287.220(3)(2)a(a) SINCE THE APPELLATE COURT MUST DEFER TO THE COMMISSION'S DETERMINATIONS AS TO THE CREDIBILITY OF THE WITNESSES AND THE WEIGHT GIVEN TO CONFLICTING EVIDENCE, AND THE COMMISSION MADE THE FACTUAL FINDING THAT CLAIMANT HAD FOUR QUALIFYING PRE-EXISTING DISABILITIES, AND THEREFORE, REMAND TO THE COMMISSION TO EXPLAIN THEIR FACTUAL FINDINGS IS NOT APPROPRIATE.

Claimant's second point relied on states:

THE COURT OF APPEALS CORRECTLY HELD THAT AN INJURY THAT OCCURS BY WAY OF AN OCCUPATIONAL DISEASE CAN BE A QUALIFYING PRE-EXISTING DISABILITY FOR PURPOSES OF SECOND INJURY FUND LIABILITY IF THE INJURY MEETS THE 50 WEEK THRESHOLD AND AT LEAST ONE OF THE OTHER CRITERIA SET OUT IN 287.220.3(2)a(a)(i) THROUGH (iv).

APPELLANT'S PRE-EXISTING BILATERAL CARPAL TUNNEL SYNDROME

IN THIS CASE IS A QUALIFYING PRE-EXISTING DISABILITY...