Meek v. Pizza Inn

• Decision Date: 04 April 1995
• Docket Number: No. WD,WD
• Citation: 903 S.W.2d 541
• Parties: James J. MEEK, Appellant, v. PIZZA INN, Defendant, Missouri State Treasurer, Custodian of the Second Injury Fund, Respondent. 49219.
• Court: Missouri Court of Appeals

Page 541

903 S.W.2d 541

James J. MEEK, Appellant, v. PIZZA INN, Defendant Missouri State Treasurer, Custodian of the Second Injury Fund, Respondent.

No. WD 49219.

Missouri Court of Appeals Western District.

April 4, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 30, 1995.

Frederick W. Bryant, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Matthew C. Queen, Asst. Atty. Gen., Kansas City, for respondent.

Before HANNA, P.J., and BRECKENRIDGE and SMART, JJ.

BRECKENRIDGE, Judge.

James J. Meek appeals the decision of the Labor and Industrial Relations Commission (the Commission), finding that the Division of Workers' Compensation (the Division) lacked subject matter jurisdiction over his request for the payment of medical bills arising from an alleged work-related injury. Mr. Meek contends that the Commission erred in finding no subject matter jurisdiction. The decision is affirmed.

On August 9, 1989, Mr. Meek sustained an alleged injury at his place of employment, Pizza Inn. Because his employer did not have workers' compensation insurance, Mr. Meek filed a claim against the Second Injury Fund, pursuant to § 287.220.5, RSMo 1994. ¹ The cause was set for two pre-hearing conferences and two hearings. Mr. Meek, although receiving notice of the second hearing through certified mail, failed to appear. Pursuant to § 287.655, the claim was dismissed by Administrative Law Judge Jay Daugherty on August 29, 1991 for failure to prosecute.

Mr. Meek's attorney filed a motion to set aside the dismissal on September 12, 1991, but did not file an application for review with the Labor and Industrial Commission within the time period permitted under § 287.480. On November 8, 1991, former Chief Administrative Law Judge Paul Margolis, Jr. signed a formal written order vacating the order of dismissal. A handwritten record on the minute sheet verifies that November 8, 1991 was the date on which the vacating order was entered.

On December 22, 1991, the Second Injury Fund filed a motion to dismiss due to a lack of subject matter jurisdiction. In opposition, Mr. Meek filed a motion for an order nunc pro tunc, along with an affidavit by former ALJ Margolis. Mr. Meek's motion and affidavit indicate that when ALJ Margolis signed the order setting aside the dismissal on November 8, 1991, he actually intended to reflect that Mr. Meek's motion was granted on September 12, 1991, the day it was submitted by Mr. Meek, but a clerical error prevented the formal order from being placed in the file at that time.

On June 9, 1993, ALJ Rebecca S. Magruder conducted a hearing to determine the liability of the Second Injury Fund. ALJ Magruder found that the order setting aside the dismissal was void because the judge had no jurisdiction to enter such order. She noted that 8 C.S.R. 20-3.010(2)(C) only permits an ALJ to change or modify a final award up to twenty days from the date of issuance. The formal order to set aside the dismissal, she explained, was filed on November 8, 1991, approximately two months after the initial dismissal--well beyond the twenty-day time period. ALJ Magruder further held that an order nunc pro tunc could not correct this type of clerical error.

On August 9, 1993, Mr. Meek appealed ALJ Magruder's decision to the Labor and Industrial Relations Commission, where the denial of compensation was fully affirmed. Mr. Meek now seeks review of that judgment.

Appellate courts review the decision of the Industrial Relations Commission rather than that of the administrative law judge in Workers' Compensation cases. ² Dillon v. General Motors, 784 S.W.2d 915, 916 (Mo.App.1990). Section 287.495 sets forth the standard of review in Workers' Compensation cases. Story v. Southern Roofing Co., 875 S.W.2d 228, 230 (Mo.App.1994). In pertinent part, it provides as follows:

Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts bound by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1.

Mr. Meek asserts only one point of error, claiming that the Commission erred in finding that the Division lacked subject matter jurisdiction over his claim. He claims former ALJ Margolis' affidavit indicates that ALJ Margolis acted to set aside the dismissal within the time period prescribed by law and that an order nunc pro tunc should have been granted to correct the clerical error suggesting otherwise.

Pursuant to § 286.060(8), the Commission has the power to enact "regulations governing its proceedings in connection with the exercise of its quasi-judicial functions...." To that effect, it has adopted 8 C.S.R. 20-3.010(2)(C), which states that "[a]n administrative law judge shall not have any authority to change or modify a final award issued by an administrative law judge after the lapse of twenty (20) days from the date of issuance of an award...." Mr. Meek acknowledges that a formal written vacating order was not placed in the file within 20 days following the order of dismissal. He denies, however, that jurisdiction was lost, since he believes an order nunc pro tunc should have been issued to correct the ostensible defect.

"The purpose of the nunc pro tunc amendment is to make the record conform to what was actually done where there is a basis in the record for the amendment." In re Marriage of Royall, 569 S.W.2d 369, 371 (Mo.App.1978). It allows a tribunal to correct clerical or typographical errors even after the tribunal has lost its jurisdiction over the case. Cooper v. Cooper, 778 S.W.2d 694, 700 (Mo.App.1989). The error which Mr. Meek aspires to amend, however, is inappropriate for nunc pro tunc correction.

In his most notable argument, Mr. Meek essentially contends that he is entitled to a nunc pro tunc amendment because the nunc pro tunc requirements imposed on administrative bodies should be less rigorous than those imposed on civil courts. To bolster that viewpoint, he asserts that civil rules such as Rule 74.06(a), which authorizes nunc pro tunc corrections, do not apply to proceedings within the Division of Workers' Compensation. ³

Although Mr. Meek does not cite any case law to support his claim, it appears that he is correct in stating that civil rules do not apply to administrative proceedings. Rule 41.01, which lists the types of actions to which the Supreme Court Rules are applicable, does not make any mention of administrative actions. ⁴ Moreover, cases such as Sheets v. Labor & Indus. Rel. Com'n, 622 S.W.2d 391, 393 (Mo.App.1981), hold that an administrative appeals tribunal does not acquire authority from Supreme Court Rules. If administrative bodies cannot acquire power through Rule 74.06 to make nunc pro tunc amendments, however, then, in general, they have no clear authority upon which to correct clerical errors in the first place.

An administrative tribunal exercises only the authority it is granted by statute. Id. Although some administrative agencies with broad grants of authority have the ability to correct their own record by means of an order akin to a nunc pro tunc amendment, the Division of Workers' Compensation does not appear to possess such authority. Blankenship v. Grandy's, Inc., 839 S.W.2d 680, 684 (...