Treasurer of the Mo. - Custodian of the Second Injury Fund v. Mickelberry

• Decision Date: 14 April 2020
• Docket Number: WD 82997
• Citation: 606 S.W.3d 150
• Parties: TREASURER OF the STATE of Missouri - CUSTODIAN OF the SECOND INJURY FUND, Appellant, v. Jimmy MICKELBERRY, Respondent.
• Court: Missouri Court of Appeals

606 S.W.3d 150

TREASURER OF the STATE of Missouri - CUSTODIAN OF the SECOND INJURY FUND, Appellant,

v.Jimmy MICKELBERRY, Respondent.

WD 82997

Missouri Court of Appeals, Western District.

OPINION FILED: April 14, 2020

Eric W. Lowe, Kansas City, MO, for appellant.

May Mirfasihi, Kansas City, MO, for respondent.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

The Treasurer of the State of Missouri as Custodian of the Second Injury Fund ("Fund") appeals the final award of the Labor and Industrial Relations Commission ("Commission") finding that Jimmy Mickelberry ("Mickelberry") was permanently and totally disabled in part due to preexisting conditions, triggering Fund liability. The Fund raises three allegations of error on appeal. It contends that the Commission applied the wrong statutory analysis in its determination of Fund liability. Further, it claims that even had the Commission applied the correct statutory criteria, there was insufficient evidence to support Fund liability. Instead, the Fund contends that the competent and substantial evidence supported a finding that Mickelberry's total disability was solely due to his primary workplace injury. Mickelberry filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, based on an allegation of an improper application for review filed by the Fund with the Commission. Because the Commission exceeded its statutory authority when it determined the Fund's appeal from the Administrative Law Judge's ("ALJ") award, we reverse and set aside the award of the Commission, and enter the award of the ALJ as the final award and judgment in this case.

Procedural and Factual Background

On February 6, 2015, Mickelberry injured his neck in the course and scope of his employment at ICF & LG Holding ("ICF"). Mickelberry was picking up a 50-pound radiator he assembled and experienced shooting pain in his head and neck, down his arms, and down his right leg ("Primary Injury"). Mickelberry received medical treatment for his injury. His initial treatment included a Toradol

injection, narcotic pain medication, and muscle relaxers. An MRI scan revealed degenerative disk disease, and Mickelberry received two epidural steroid injections. Ultimately, Mickelberry underwent a neck fusion surgery. Despite the surgery, Mickelberry testified that he has constant neck pain even using narcotic pain medication. He is limited in his daily activities including being unable to stand unassisted for more than two to five minutes. He cannot sit for more than 15-20 minutes at a time. He has difficulty driving both because of his inability to turn his neck and because it causes him cramping. He falls three to four times a week. He must sit while showering. The narcotic pain medication causes drowsiness, and he requires two to three naps during the day.

He was also diagnosed with bilateral carpal tunnel syndrome

. Medical testimony supports a finding that, although Mickelberry's carpal tunnel syndrome predated his primary injury, it only became symptomatic as a result of a secondary crush to the nerves associated with his neck injury; a phenomenon known as "double crush." As a result, Mickelberry suffers from numbness in his hands making it difficult for him to maintain his grip on objects. He also now suffers pain in his hands and wrists as a result of surgery to address his carpal tunnel. He has difficulty holding a pencil and writing.

Mickelberry never returned to work following his Primary Injury. Once his Family Medical Leave Act period expired, he was terminated by his employer.¹

Mickelberry was born in 1960 and completed high school and some limited college before he left school to enter the workforce. He has performed various manual labor occupations throughout his career. He began working for ICF in March of 2010. Prior to the Primary Injury, Mickelberry had a history of chronic back pain and had changed job positions multiple times while working for ICF in order to accommodate his limitations.

On April 27, 2017, Mickelberry filed an Amended Claim for Compensation seeking benefits from the Fund for permanent and total disability. Mickelberry alleged that his preexisting disabilities combined with his Primary Injury to render him permanently and totally disabled. A hearing was held before an ALJ on April 17, 2018. The parties stipulated that Mickelberry reached maximum medical improvement on June 14, 2016. Mickelberry settled with ICF for 20% permanent partial disability of each hand and 20% of the body as a whole referable to the neck. The sole issue before the ALJ was whether the Fund was liable to Mickelberry for any disability compensation.

The ALJ entered a final award on July 6, 2018, finding that Mickelberry was permanently and totally disabled as a result of his preexisting disabilities and his Primary Injury ("ALJ Award"). Following an appeal by the Fund, on June 13, 2019, the Commission adopted the award and decision of the ALJ but also issued a supplemental opinion ("Final Award"). The supplemental opinion of the Commission clarified that the ALJ found that Mickelberry was permanently and totally disabled as the result of his combined preexisting disabilities and his Primary Injury, supporting this finding with additional discussion of the medical testimony. Additionally, the supplemental opinion corrected two typographical errors as to dates in the ALJ Award. In all other respects, the ALJ Award was adopted by the Commission.

The Fund now appeals.

Standard of Review

Under section 287.495,² we will affirm the award of the Commission unless the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or insufficient competent evidence exists to warrant the making of the award. Section 287.495.1; Barker v. Sec'y of State's Office of Mo. , 752 S.W.2d 437, 441 (Mo. App. W.D. 1988).

Discussion

The Fund brings three allegations of error on appeal. However, before we address those points, we must address Mickelberry's Motion to Dismiss for Lack of Subject Matter Jurisdiction ("Motion to Dismiss"). Mickelberry argues that the Commission lacked subject matter jurisdiction to consider the Fund's appeal from the ALJ Award, and that as a result, this Court lacks subject matter jurisdiction to entertain the Fund's appeal. Mickelberry bases his argument on the fact that the application for review filed with the Commission by the Fund incorrectly identified the date the ALJ Award was entered and, more troubling, the Fund's allegations of error in the application for review referenced the facts of an entirely unrelated case. Specifically, the application for review stated that the ALJ Award was erroneous because:

The Administrative Law Judge erred in finding that the claimant's bilateral primary shoulder injury and pre-existing injuries combined to make him more disabled, which is against the overwhelming weight of the evidence. The claimant returned to full-duty employment without restrictions after his pre-existing work injuries performing the same work as a firefighter that he had performed for the past two decades. Therefore the award should be reversed.

Mickelberry did not have a shoulder injury and was not a firefighter. Any alleged error in this case could not be based on an argument that Mickelberry returned to work without restrictions because it is undisputed that Mickelberry did not ever return to work following the Primary Injury. Mickelberry argues that because the application for review failed to raise any specific allegations of error related to this case, the application was defective on its face. Because the application was defective, a proper timely appeal of the ALJ Award was not filed, and, according to Mickelberry, the Commission was without subject matter jurisdiction to review the ALJ Award. In turn, Mickelberry concludes that because the Commission lacked jurisdiction this Court also lacks subject matter jurisdiction and must dismiss the appeal.

We must first address our own subject matter jurisdiction. We accept that there is case law to suggest that where the Commission did not have proper jurisdiction this Court lacks jurisdiction because our jurisdiction is derived from that of the Commission. See Gilmore-Vann v. AT & T Corp. , 141 S.W.3d 493, 494 (Mo. App. E.D. 2004) (because claimant failed to file a timely application for review of ALJ's award, the commission never acquired jurisdiction, and, because appellate jurisdiction derives from that of the Commission, the appellate court also lacked jurisdiction, and appeal was dismissed); Tolerson v. Div. of Emp. Sec. , 245 S.W.3d 920 (Mo. App. E.D. 2008) (failure to timely file application for review divests the commission of jurisdiction in an unemployment compensation case, and because the court of appeals' jurisdiction is derived from that of the commission, the appellate court lacks jurisdiction as well); Lee v. Staffing One , 226 S.W.3d 197 (Mo. App. E.D. 2007) (same). We question, however, the jurisdictional analysis of these cases, as each was decided prior to J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249 (Mo. banc 2009) (" Webb "). In Webb , the Missouri Supreme Court clarified that Missouri courts' authority to hear disputes including appeals is controlled by the Missouri Constitution, and that, as a result, a court's consideration of a matter as to which it has constitutional authority is not subject to a claim that the court lacks subject matter jurisdiction. Id. at 253-54. Our jurisdiction to review a final award of the Commission is derived from Article V, section 18 of the Missouri Constitution which provides, in relevant part, "[a]ll final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law...