Pennington v. Deca Property Management Co.

• Decision Date: 30 June 2003
• Docket Number: No. ED 81354.,ED 81354.
• Citation: 109 S.W.3d 235
• Parties: Winston PENNINGTON, Claimant/Respondent, v. DECA PROPERTY MANAGEMENT CO., INC., Employer/Appellant.
• Court: Missouri Court of Appeals

Page 235

109 S.W.3d 235

Winston PENNINGTON, Claimant/Respondent, v. DECA PROPERTY MANAGEMENT CO., INC., Employer/Appellant.

No. ED 81354.

Missouri Court of Appeals, Eastern District, Division Four.

June 30, 2003.

Philip E. Prewitt, St. Louis, MO, for appellant.

James F. Malone, St. Louis, MO, for respondent.

WILLIAM H. CRANDALL, JR., Presiding Judge.

Deca Property Management Co., Inc. (hereafter Deca) appealed from a decision by the Labor and Industrial Relations Commission (hereafter Commission) awarding claimant, Winston Pennington, workers' compensation benefits. Thereafter, the parties filed a joint motion to remand the case to the Commission. We grant the motion, vacate the decision and remand for further proceedings.

On August 5, 1993, claimant filed a claim for workers' compensation alleging that on June 24, 1992, he was injured in the course and scope of employment. Deca answered and asserted among other things that claimant was not an employee of Deca and that claimant failed to give timely notice of the injury. On the form for the answer to the claim for compensation completed by Deca, the word "NONE" is typed in the space for the name of the insurer.

An administrative law judge (hereafter ALJ) conducted a hearing. Claimant testified that his son-in-law, Robert Norton, called him and stated that he needed "help on a job for Deca." Norton had previously performed work for Deca. The work involved tuckpointing at 3328 Texas Ave, St. Louis, Mo. and began on June 24, 1992, the date of the accident. Norton told claimant that he was dealing with Jerry Skaggs at Deca regarding the job. Norton pointed out a vehicle that drove by the property and had a magnetic sign that said "Deca Management." Norton told claimant that Skaggs was driving the vehicle. Claimant and Norton were on a walk board that was approximately thirty-three to thirty-five feet above the ground and was attached to ladder jacks. The walk board slid off the end of the ladder jacks with one end hitting the ground and the other hitting a fence. Claimant was transported by ambulance to a hospital. Claimant suffered injuries to his back, pelvis, ankles and feet and underwent surgeries for these injuries. Claimant never told Deca about the accident.

Martin Carr, a property manager for Deca in 1992, testified that in 1992, Deca performed property management services for approximately fifty individual buildings. The services provided by Deca included maintenance of the properties. Deca had a contract to manage the property at 3328 Texas. Carr denied knowing claimant, Skaggs or Norton.

The ALJ found that the evidence did not establish that at the time of the accident claimant was an employee of Deca. The Commission reversed the ALJ's decision. The Commission found that claimant was a statutory employee of Deca and that Deca had notice of claimant's injury. The Commission also found that claimant was permanently and totally disabled. The Commission awarded claimant disability benefits and ordered Deca to reimburse claimant for medical expenses. Deca appealed from the Commission's decision.

After filing the notice of appeal, the parties filed a joint motion to remand the case to the Commission. The parties stated that after the Commission issued the award, Deca's counsel received information that Deca had paid its "agent," Deca Construction Co., Inc. (hereafter Deca Construction), for repairs to 3328 Texas on June 23, 1992, the day prior to claimant suffering his injuries. The parties further stated that at the time of claimant's injuries, Deca's "agent," Deca Construction had workers' compensation insurance. The parties also stated that there was not sufficient competent evidence in the record for this court to determine whether Deca was insured because the insurer was never made a party to the claim. The parties requested that this court remand the case to the Commission to determine whether Deca's "agent" Deca Construction and its insurer should be added as necessary, joint additional parties. Attached to the motion, was a portion of Carr's January 18, 2001 deposition, where he stated that Deca did not have workers' compensation "at the time of the full year of 1992." This court issued an order for the parties to file a memorandum addressing the issue. Claimant filed a memorandum asserting that in January 2003, Deca's counsel provided claimant's counsel for the first time with information that shows that Deca's "partner and agent" Deca Construction had workers' compensation insurance with the Fidelity and Casualty Company of New York. The memorandum sets forth the policy number. Claimant also stated that the insurance policy covered partners of Deca Construction such as Deca and the policy would have provided coverage to claimant's claim.

We first address the parties' motion to remand. The Western District considered a case where the claimant requested that the court consider "`newly discovered evidence'" that had not been presented to the administrative law judge or Commission. Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 662 (Mo. App. W.D.1994). The Commission had found that the claimant was not entitled to workers' compensation for an acute myocardial infarction that he suffered while working. Id. at 660. The evidence at issue consisted of two articles, "Triggering of Acute Myocardial Infarction by Heavy Physical Exertion" and "Physical Exertion as a Trigger of Acute Myocardial Infarction," that were published in The New England Journal of Medicine three months after the Commission's decision. Id. at 662. In a split decision, the court denied the claimant's request to consider the articles. The majority noted that the general rule is that the presentment of evidence extraneous to a trial court record should not be considered on appeal. Id. The majority stated that appellate review of a workers' compensation award is limited to the four grounds specified in section 287.495 RSMo.1986 which states 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 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.

Id.¹ The majority held that the court's jurisdiction is derived from section 287.495 which does not provide a basis for remand on the basis of newly discovered evidence that is presented in the first instance to the appellate court. Id. at 663. The majority did recognize that there have been cases where newly discovered evidence had been considered by an appellate court. Id (discussing; State v. Post, 804 S.W.2d 862 (Mo.App.1991); State v. Williams, 673 S.W.2d 847 (Mo.App.1984); State v. Mooney, 670 S.W.2d 510 (Mo.App.1984)). The majority concluded that the extraordinary circumstances present in those cases did not exist for the case being considered.

Id²

The present case is distinguishable from Wilson. In Wilson, the newly discovered evidence addressed the Commission's finding as to lack of causation. Here, the issue is whether there was a necessary party, not known at the time of the Commission's award, that was not joined in the action.

Section 287.300 RSMo.2000 sets forth certain provisions that apply to insurers.

This section provides:

If the employer is not insured his liability hereunder shall be primary and direct. If ...