Springfield General Osteopathic Hospital v. Industrial Commission

• Decision Date: 15 June 1976
• Docket Number: Nos. 9756,9757,s. 9756
• Citation: Springfield General Osteopathic Hospital v. Industrial Commission, 538 S.W.2d 364 (Mo. App. 1976)
• Parties: SPRINGFIELD GENERAL OSTEOPATHIC HOSPITAL, Respondent, v. INDUSTRIAL COMMISSION of Missouri and Division of Employment Security, Appellants.
• Court: Missouri Court of Appeals

Page 364

538 S.W.2d 364

SPRINGFIELD GENERAL OSTEOPATHIC HOSPITAL, Respondent, v. INDUSTRIAL COMMISSION of Missouri and Division of Employment Security, Appellants.

Nos. 9756, 9757.

Missouri Court of Appeals, Springfield District.

June 15, 1976.

Terry C. Allen, Jefferson City, for Div. of Employment Security.

Charles B. Fain, Jefferson City, for Ind. Commission of Missouri.

Donald W. Jones, Christopher J. Stark, Prewitt, Jones & Karchmer, Springfield, for respondent.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

HOGAN, Judge.

This is an appeal by the Industrial Commission of Missouri and the Division of Employment Security from a decision of the Circuit Court of Greene County reversing in part the decision of the Commission in three unemployment compensation cases. ¹ The essential question presented is whether or not the Circuit Court of Greene County had jurisdiction to determine the chargeability of benefits to which three of the hospital's former employees were entitled. The Commission insists the court had no such authority; the hospital as vigorously contends that it did. A construction of § 288.210, RSMo 1969, is required.

Deborah White filed a claim for unemployment compensation benefits on June 6, 1973. The hospital was notified and protested informally by letter. A deputy determined that White voluntarily left her work without good cause attributable to her work or her employer, but further determined that she had terminated her initial disqualification by earning wages equal to ten times her weekly benefit since the date she quit. § 288.050(1)(1). ² The hospital appealed this determination, contending that White was not eligible because she had not actively ad earnestly sought work as required by § 288.040(1)(2); alternatively, the hospital maintained that it could in no event be charged with any benefits due White because it was an employer directly involved in the initial disqualifying act. § 288.100(1)(4)(a). ³ The referee found against the hospital on the issue of White's availability for work, but made no specific ruling on benefit charges or the hospital's exemption. At the hearing before the appeals tribunal, the referee advised counsel for the hospital that the issue of chargeability 'cannot be raised in this hearing because (the benefits due White) have not yet been charged against your client . . . there is no decision could be made and no appeal could be filed until they have been charged.' Counsel answered that he recognized 'that might be a possibility' but made it clear he wished to raise the chargeability issue 'as early as possible'. The hospital subsequently applied for review by the Industrial Commission; its application was denied.

Mary Hasler, another of the hospital's former employees, filed her claim for benefits May 29, 1973. The hospital protested this claim. A deputy determined that Hasler left her work voluntarily without good cause attributable to her work or to her employer, but further found that her initial disqualification was terminated because her first claim week began more than one year after the date of the disqualifying act. § 288.050(3). The hospital appealed the deputy's determination on the ground that Hasler had not been available for work as required by § 288.040(1)(2) and on other grounds not material here. The referee determined, among other things, (a) that Hasler left her work voluntarily without good cause attributable to her work or to her employer, and (b) that she quit her work at the hospital for the purpose of accepting a more remunerative job, that she did accept the more remunerative job and earned some wages therein. The referee also found that any disqualification was terminated because Hasler's first claim week began more than one year after the initial disqualifying act, and further found that her initial disqualification (quitting without cause) was terminated because she had earned wages equal to ten times her weekly benefit amount. The hospital requested review by the Commission, asserting that the referee should have specifically found that any benefits due Hasler were not chargeable to the hospital by reason of the noncharge provisions of a § 288.100(1)(4)(a) and (b). This application for review was also denied.

Elsie Satterfield, also a former hospital employee, filed her claim for benefits on June 19, 1973. The hospital protested this claim by letter, attaching a note in which Satterfield advised the hospital that she had 'another job with lot more pay, so this is my notice'. A deputy determined that any disqualification had been terminated by lapse of time. § 288.050(3). The hospital appealed on the ground that the claimant had not been available for work, and upon the further ground that it could in no event be held chargeable with any benefits to which Satterfield might be entitled. The appeals tribunal held that any disqualification had been terminated because the first benefit week began more than one year after the otherwise disqualifying act, but remanded the claim to the deputy to determine the claimant's eligibility with respect to vacation pay she had received. The referee also specifically held in this case that the issue of benefit charges was not properly before him. A petition for review filed by the hospital was denied by the Commission.

All three decisions were appealed to the Circuit Court of Greene County. ⁴ The petitions for review are quite lengthy, but in each case the hospital sought a declaration that none of the claimants was eligible for benefits, and further prayed a determination that in any event the noncharging provisions of § 288.100(1)(4)(a) and (b) relieved the hospital of any liability. The Commission's answer is likewise wordy and imprecise, but given favorable intendment, it challenges the court's jurisdiction to determine the applicability of the exemptive sections quoted because the proceeding on appeal is a matter 'not involving a claimant' within the meaning of § 288.210, RSMo 1969. An additional issue tendered by the pleadings is whether or not the hospital as a reimbursing employer is entitled to the benefit of the noncharging provisions of § 288.100(1)(4)(a) and (b). We shall discuss this last issue briefly, but we have concluded that it is unnecessary to resolve it and that it probably would be imprudent to attempt to do so.

All three appeals were consolidated in the circuit court. That court reviewed the record and concluded: 1) that there was substantial evidence on the whole record to support the Commission's finding that all three claimants were eligible for benefits; 2) that the hospital's claim of exemption under the noncharging subsections of § 288.100 was properly and timely raised and that the Commission erred as a matter of law in not holding the hospital exempt under those provisions, and 3) that the hospital was not deprived of the benefits of § 288.100(1)(4)(a) and (b) by electing to become a reimbursing employer as permitted by § 288.090(3)(1)(a).

As indicated, the key and dispositive question presented is whether the trial court had jurisdiction to adjudicate the chargeability of the benefits to which the three claimants were entitled. The issue of the claimants' eligibility has not been briefed nor argued and must be considered abandoned. La Grange Reorg. School Dist. No. R--VI v. Smith, 312 S.W.2d 135, 136--137(1) (Mo.1958).

Section 288,210, RSMo 1969, governs appeals to the courts in employment security cases, and reads in pertinent part as follows (emphasis ours):

'Within ten days after a decision of the commission has become final, the director or any other party aggrieved thereby may secure judicial review . . . by commencing an action in the circuit court . . . of the county of claimant's residence or, in respect to those matters not involving a claimant . . . the circuit court of Cole County . . .. Notwithstanding the foregoing, where judicial review is sought in respect to a decision involving more than one claimant, the action may be commenced in the circuit court . . . of the county in which the interested employer has a place of business in which one or more of the claimants were employed.'

Section 288.210, RSMo 1969, was enacted by the General Assembly in 1951 as part of a general revision of the Employment Security Law, Laws of Mo.1951, pps. 594--595, and the sentence beginning with the words 'notwithstanding the foregoing' was added in 1961. Laws of Mo.1961, pps. 435--436. This statute provides a complete and exclusive procedure for obtaining judicial review of decisions of the Commission in the courts, and as the Commission contends, failure to follow the procedure specified would be fatal to the hospital's appeal. Hansen v. Division of Employment Security, 520 S.W.2d 150, 152(4) (Mo.App.1975); Duzer v. Industrial Commission, 402 S.W.2d 616, 618(1) (2) (Mo.App.1966). However, the merits of these appeals do not depend upon the hospital's compliance, or lack of compliance, with the procedural requirements of § 288.210, RSMo 1969. The rationale of the controlling and persuasive precedents varies a good deal, but we are left in no doubt that the quoted part of § 288.210, RSMo 1969, vests exclusive jurisdiction to determine 'matters not involving a claimant' in the Circuit Court of Cole County. State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375, 378(3, 4) (Mo. banc 1970); Warnecke v. State Tax Commission, 340 S.W.2d 615, 618--619(2) (3) (4) (Mo.1960). ⁵ Therefore, if the issue of chargeability is a matter 'not involving a claimant', and provided the phrase 'in respect to those matters not involving a claimant' as applied to these multiple claims was not nullified by addition of the sentence beginning 'notwithstanding the foregoing' by Laws of Mo.1961, at 435--436, the decision of the trial court exempting the hospital is coram non judice.

In construing § 288.210, RSMo 1969, we bear several general principles in mind. We must attempt...