Smith v. Ozark Lead Co.
| Decision Date | 17 November 1987 |
| Docket Number | No. 15048,15048 |
| Parties | Gary D. SMITH, Appellant, v. OZARK LEAD COMPANY and Liberty Mutual Insurance Company, Respondents. |
| Court | Missouri Court of Appeals |
John R. Igoe, Daniel R. Devereaux, St. Louis, for appellant.
Edward W. Warner, Laura B. Allen, Evans & Dixon, St. Louis, for respondents.
Gary D. Smith ("claimant") appeals from a circuit court judgment affirming a "Temporary or Partial Award" of "compensation for nursing care" by the Labor and Industrial Relations Commission ("the Commission") under "The Workers' Compensation Law," chapter 287, RSMo 1978, as amended. Inasmuch as the dispute is based on a claim that arose prior to August 13, 1980, claimant began the process of judicial review by appealing the Commission's award to the circuit court, § 287.490, RSMo Cum.Supp.1984, instead of directly to this Court.
The award that is the subject of this appeal is based on evidence adduced at a hearing on January 29, 1985, before an Administrative Law Judge ("ALJ") of the Division of Workers' Compensation. At the hearing, it was stipulated that on December 29, 1976, claimant sustained an injury by accident arising out of and in the course of his employment by Ozark Lead Company ("Ozark"), that at said time Ozark was an employer subject to The Workers' Compensation Law, and that Ozark's liability thereunder was "fully insured by the Liberty Mutual Insurance Company." Henceforth, we refer to Ozark and Liberty Mutual collectively as "respondents."
It was further stipulated that compensation aggregating $58,900 had been paid to claimant for permanent and total disability as of the date of the hearing, and that "[m]edical aid paid to date totals $253,180.45." The latter sum included the following amounts for nursing care: $135 per week commencing July 25, 1977, increased to $175 per week commencing November 29, 1978, and increased to $240 per week commencing May 17, 1982, for a total of $75,750. The parties also agreed that an additional $19,000 had been paid to claimant "disposing of the issue of the penalty that was being alleged by reason of an unguarded machinery violation."
Finally, the parties agreed that claimant's injury "was permanent and totally disabling."
The purpose of the hearing appears in this excerpt from the transcript.
"[ALJ]: ... I believe at the present time, Mrs. Mildred Smith is the wife of the [claimant], Gary Smith, who is receiving the sum of $240.00 per week for nursing care which sum commenced May 17, 1982 and continues at this time.
[Respondents' attorney]: That's right.
Evidence was presented on that issue by claimant and by respondents. On March 29, 1985, the ALJ entered a "Temporary or Partial Award" based upon "Findings of Fact and Rulings of Law." The ALJ ruled:
"[Respondents] are directed to increase [claimant's] reimbursement for nursing care from $240.00 per week to $300.00 per week commencing January 1, 1985 through December 31, 1985. Thereafter, nursing care allowance shall increase five percent (5%) per week per annum commencing January 1, 1986 through December 31, 1989 unless [claimant's] physical and/or mental condition warrants a modification of this temporary award prior to December 31, 1989 when the case will be reset for further order.
... Amount of Compensation payable:
1985: $300.00 per week ................... $15,600.00 per annum
1986: $315.00 per week ................... $16,380.00 per annum
1987: $330.75 per week ................... $17,199.00 per annum
1988: $347.28 per week ................... $18,058.95 per annum. 1
1989: $364.64 per week ................... $18,961.28 per annum
Total nursing care compensation for 260
weeks .................................................... $86,199.23"
Claimant and respondents applied separately to the Commission for review of the ALJ's award. On April 10, 1986, the Commission, in a "Temporary or Partial Award" signed by two of its three members, ruled:
"The Commission agrees that the claimant should be allowed $300.00 per week for nursing care commencing January 1, 1985. We cannot, however, concur with the provision in the [ALJ's] award for an increase in this weekly amount by five percent (5%) per week per annum for the period January 1, 1986 through December 31, 1989. The Commission finds that any provision for an increase in future nursing care costs would be based on speculation. The Commission finds no testimony or other evidence in the record to support the five percent (5%) yearly increase in nursing care costs provided for in the [ALJ's] award.
Therefore, the [ALJ's] award is modified to provide compensation for nursing care to the claimant at the flat rate of $300.00 per week commencing January 1, 1985, until December 31, 1989, when this case will be reset for further order.
We find the remainder of the award of the [ALJ] to be supported by competent and substantial evidence and made in accordance with the Missouri Workers' Compensation Act; and, therefore, the Commission, pursuant to Section 286.090 Revised Statutes of Missouri, hereby affirms the remainder of the temporary or partial award of the [ALJ] dated March 29, 1985."
Claimant filed a timely notice of appeal from the Commission's award to the circuit court. Respondents did not appeal. In response to claimant's appeal, respondents filed a motion to dismiss, averring that by reason of § 287.510, RSMo 1978, the Commission's "Temporary or Partial Award" is subject to modification from time to time until rendition of a final award, that § 287.490, RSMo Cum.Supp.1984, provides for an appeal to a circuit court from only a "final award" of the Commission, and that decisions of the Commission in workers' compensation cases from which an appeal can be taken are only those expressly declared appealable by statute. Insisting there was no statutory authority for claimant's appeal, respondents prayed the circuit court to dismiss it "on the basis that the Court lacks jurisdiction over the cause."
The circuit court denied respondents' motion to dismiss, stating:
Reaching the merits of claimant's appeal, the circuit court held that the Commission's award was supported by competent and substantial evidence. Accordingly, as reported at the outset of this opinion, the circuit court affirmed the Commission's award. This appeal followed.
Consistent with their position in the circuit court, respondents promptly filed a motion in this Court to dismiss claimant's appeal. In considering respondents' motion, our first task is to identify the genre of the Commission's award of April 10, 1986, and the statutory authority by which it was made.
The initial paragraph of the Commission's award says, in pertinent part:
"The above-entitled workers' compensation case has been submitted to the ... Commission for review as provided by Section 287.480 Revised Statutes of Missouri."
Section 287.480, RSMo 1978, provides:
"If an application for review is made to the commission within twenty days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue, their representatives and witnesses and shall make an award and file it in like manner as specified in section 287.470...."
Awards by an ALJ under § 287.460, RSMo 1978, are eligible for review by the Commission under § 287.480, above. Todd v. Goostree, 528 S.W.2d 470, 474 (Mo.App.1975). Section 287.460 provides:
Apart from the statutes enumerated above, there is in chapter 287 a statute specifically authorizing a "temporary or partial award of compensation." That statute is § 287.510, RSMo 1978. It provides:
"In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount thereof may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award."
The Commission has promulgated a rule--8 CSR 20-3.040--wherein the Commission recognizes the difference between an award under § 287.510 and an award under § 287.460. As authorized by § 536.031.5, RSMo 1978, we take judicial notice of such rule. It provides:
"PURPOSE: The purpose of this rule is to specify when an application to review a temporary or partial award may be filed.
(1) Whenever a referee issues a temporary or partial award, under section 287.510 RSMo, the same shall not be considered...
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