Parker v. Action Contracting Corp., WD 61256.

• Decision Date: 28 March 2003
• Docket Number: No. WD 61256.,WD 61256.
• Citation: 100 S.W.3d 168
• Parties: Randall PARKER, Respondent, v. ACTION CONTRACTING CORPORATION, Defendant; Missouri Employers Mutual Insurance, Appellant; American Interstate Insurance and G.S. Syler, Respondents; Department of Social Services, Div. of Child Support Enforcement, Defendant.
• Court: Missouri Court of Appeals

100 S.W.3d 168

Randall PARKER, Respondent, v. ACTION CONTRACTING CORPORATION, Defendant Missouri Employers Mutual Insurance, Appellant American Interstate Insurance and G.S. Syler, Respondents; Department of Social Services, Div. of Child Support Enforcement, Defendant.

No. WD 61256.

Missouri Court of Appeals, Western District.

March 28, 2003.

Jeff F. Stigall, Kansas City, for appellant Missouri Employer's Mutual Insurance and Action Contracting.

Frank D. Eppright, Kansas City, for respondent Randall Parker.

Before EDWIN H. SMITH, P.J., SMART and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

This appeal arises from the Labor and Industrial Relations Commission's determination that Missouri Employee's Mutual Insurance Company (MEM) is liable, as an insurer, for workers' compensation benefits awarded to Randall Parker. MEM's failure to comply with Rule 84.04 results in our dismissal of the appeal.

Factual and Procedural History

On October 11, 2000, Randall Parker was severely injured as the result of a work-related accident. Parker sought workers' compensation benefits from his employer, Action Contracting Corporation (Action). Action notified its workers' compensation insurer, Missouri Employer's Mutual Insurance Company (MEM) of Parker's claim. MEM denied coverage, stating it cancelled the insurance policy on October 10, 2000, due to Action's non-compliance with payroll reporting requirements.

At the time of Parker's injury, he was working on a job where Action was a subcontractor for G.S. Syler Contractors Inc. (Syler). In addition to seeking insurance coverage from MEM, Action sought to have Parker's claim covered by Syler's workers' compensation insurer, American Interstate Insurance Co. (American Interstate). American Interstate denied coverage, contending that MEM was solely responsible for Parker's claim as Action's insurer.

A hearing was held before the Division of Workers' Compensation on the issue of whether MEM or American Insurance was liable for coverage on Parker's claim. The Administrative Law Judge (ALJ) determined MEM did not strictly comply with the sixty-day notice provision for cancellation of the insurance contract and, therefore, its policy with Action remained in effect at the time of Parker's injury on October 11, 2000. MEM was ordered to pay temporary workers' compensation benefits of $455.84 per week to Parker. No liability was assessed against American Interstate.

On review, the Labor and Industrial Relations Commission affirmed and adopted the ALJ's determination, with one member dissenting. MEM appeals, contending the Commission erred in concluding that Action's insurance policy was not properly cancelled prior to Parker's injury.

Standard of Review

In workers' compensation cases, appellate review on the issue of liability is permissible even though the relief granted is "temporary or partial." Stufflebean v. Crete Carrier Corp., 895 S.W.2d 115, 116 (Mo.App. W.D.1995). Our review of this matter is governed by section 287.495.1, RSMo 2000, which states in relevant part:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for hearing, 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 found 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.

Rule 84.04 Violations

In reviewing Appellant's Brief and attempting to discern the issues on appeal, we are hindered by MEM's failure to comply with key provisions of Rule 84.04. Respondents Syler and American Insurance correctly note that many of Appellant's arguments are not reflected in the Points Relied On, a clear violation of Rule 84.04(e). A more significant impediment for us is Appellant's disregard for Rule 84.04(d)(2), which requires that each Point Relied On:

(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.

Rule 84.04(d)(2) further provides that 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]."

Appellant seeks reversal of the Commission's determination of liability and presents three issues on appeal. The Points Relied On state as follows:

I. The Labor and Industrial Relations Commission ("LIRC") erred in holding that Missouri Employer's Mutual ("MEM") did not cancel its policy with Action Contracting ("Action") because MEM effectively canceled the policy in that the 10-day...