JOHN M. HARRINGTON, Claimant-Respondent v. EMPLOYER SOLUTIONS STAFFING, Employer-Appellant.

JOHN M. HARRINGTON, )
)
Claimant-Respondent, )
)
vs. ) No. SD34016
) Filed: October 16, 2015
EMPLOYER SOLUTIONS STAFFING, )
)
Employer-Appellant. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED
John M. Harrington (“Employee”), an employee of Employer Solutions Staffing
(“Employer”), filed a claim for compensation against Employer arising out of an injury of June
13, 2012. An Award was entered against Employer and it is from that Award Employer appeals.
We affirm the Award of the Labor and Industrial Relations Commission (“Commission”).
Factual and Procedural History
Employee was hired by Employer in Missouri for a painting job to be completed in Fort
Worth, Texas. On June 13, 2012, while in Texas, Employee was painting on a ladder, when he
slipped and fell several rungs off the ladder. He had immediate pain in his neck, upper back, and
right shoulder.
Employee filed a formal claim for compensation with the Missouri Division of Workers’
Compensation (“Division”) on July 13, 2012. A hardship hearing was conducted on May 21,
2013. Employee was present with his attorney, but no appearance was made by Employer or any
insurance company on behalf of Employer. The insurer was shown as “unknown.”
Admitted into evidence at the hardship hearing was a certified mail notice to Employer
containing the notice of hearing. The record recites that no formal claim for compensation was
filed in Texas, but Employee was receiving “temporary income” from Texas Mutual Insurance
Company (“Texas Mutual”) in the amount of $776 per week.
On July 2, 2013, the administrative law judge (“ALJ”) entered a temporary award in
favor of Employee awarding him past temporary total disability benefits in the amount of
$37,919.39, with continuing weekly benefits, and medical treatment.
A final hearing was conducted on June 25, 2014, before the same ALJ. Employee and
his attorney appeared. Evidence at that hearing included a notice of hearing, by certified mail, to
Employer advising of the June 25, 2014 final hearing. The ALJ issued a final award on July 30,
2014, which awarded benefits to Employee for unpaid temporary total disability; a penalty for
Employer’s failure to comply with the temporary award, pursuant to section 287.510; 1 additional
temporary total disability; unreimbursed medical expenses; and a permanent partial disability
award. The final award included the following specific findings of fact:
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All references to statutes are to RSMo 2000, unless otherwise indicated.
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Notice of Hearing
The Missouri Division of Workers’ Compensation sent notice of the final hearing
by certified mail to [Employee], his counsel, and to Employer Solutions Staffing
at Employer Solutions Staffing, 7301 OHMS Lane, Suite 405, Edina, Minnesota,
55439 (Court Exhibit 5). The notices, dated March 31, 2014, were mailed on
April 2, 2014, as evidenced by the United States Post Office mark. The date of
hearing was Jun[e] 25, 2014. [Employee]’s notice was returned to the Division
because he had moved and the notice could not be forwarded (Exhibit 4). Still,
[Employee] appeared with his counsel. The notice to Employer by certified mail
on April 2, 2014, was not returned. Based on the only evidence in the record and
the reasonable presumptions from that evidence, I find that the Division
forwarded the notice of the Final Hearing by certified mail to Employer’s last
known address in time for Employer to participate in the hearing.
On August 14, 2014, Employer filed its “Motion to Set Aside Awards and to File Answer
to Claim for Compensation Out-of-Time.” In that motion, Employer admitted receiving notice
of the hardship hearing, which was conducted on May 21, 2013; a copy of the temporary or
partial award; and notice of the June 25, 2014 hearing. Employer asserted it failed to take action
because it believed the notices and temporary award related to the pending Texas claim for
workers’ compensation benefits, and mistakenly believed that Texas Mutual was handling such
claim and defending its interest herein. 2 Attached to the motion was an affidavit of Carissa M.
Huffman (“Huffman”), a workers’ compensation specialist employed by Employer. The
affidavit recited, among other things, that Texas Mutual handled a Texas claim for compensation
for Employee, including payment of some benefits. The affidavit also recited that no action was
taken on the Missouri claim because Employer made a mistake, but “did so believing that Texas
Mutual was defending its interests in the pending workers [sic] compensation claim of Mr.
Harrington.”
2
No issues are presented in this appeal as to whether Texas Mutual has workers’ compensation coverage for
Employer for Employee’s injuries. This opinion does not address any issues involving insurance coverage for
Employer.
3
On, August 15, 2014, the ALJ, who had entered the temporary and final awards, heard
oral argument and considered Employer’s motion. The ALJ concluded there was “no good cause
to set aside either award” and denied the motion. Employer then filed an application for review
with the Commission. The Commission heard from all parties through briefing and oral
argument and unanimously entered an Award on June 18, 2015, allowing compensation, which
modified the final award and decision of the ALJ. The ALJ’s final award was modified to give
Employer credit for benefits paid in Texas for temporary total disability, and reduced the amount
of the penalty for non-compliance with the temporary award because some payments had been
made under Texas law.
The Commission’s Award included the following findings:
In its brief, employer admits that it timely received each of the notices from the
Division referenced above, but alleges that it failed to defend this claim because it
mistakenly believed that employee’s Missouri claim for compensation was part of
a Texas claim for compensation and that its Texas workers’ compensation insurer
was defending this action on its behalf. Employer requests the Commission to
direct the administrative law judge to set aside the temporary and final awards, to
permit employer to file an answer to employee’s claim for compensation, and to
remand this matter to the Division to permit employer a chance to defend the
claim and present evidence as to its defenses.
Obviously, to grant the relief employer requests at this stage of the proceedings
would constitute a significant imposition upon employee, as well as upon the
Division. The appropriate question, then, is whether employer’s alleged good
faith belief that its Texas insurer was defending this Missouri claim for
compensation is sufficient to excuse employer’s failure to take any action in
connection with the Division’s notices, and justify our requiring employee and the
Division to start from scratch in terms of adjudicating this matter. We are not
persuaded.
It is well-settled in the context of our administrative proceedings that “[f]ailure to
properly read [a] notice of hearing is not reasonable.” Guyton v. Div. of Empl.
Sec., 375 S.W.3d 254, 256 (Mo. App. 2012). It appears to us that even the most
cursory review of the Division’s notices would make clear to any reader that
proceedings were taking place in Missouri, and any lingering confusion as to the
meaning of the notices could easily have been remedied by a phone call to the
Division or to employee’s counsel. Even if there were initially some reasonable
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and good faith misunderstanding as to whether someone would appear to defend
employer at the hardship hearing of May 21, 2013, we are of the opinion that
there cannot have been any such mistake thereafter, when employer received a
temporary award wherein the administrative law judge made clear there was no
appearance by anyone (including any insurance carrier) at the hearing to defend
the claim, and also made clear employer was liable to pay workers’ compensation
benefits in Missouri. Yet, employer continued to take no action until after another
hearing and a final award. We conclude that it was unreasonable for employer to
fail to defend this claim on the basis of its alleged mistaken belief that these
Missouri proceedings were a part of a workers’ compensation proceeding in
Texas. For this reason, we deny employer’s request to remand this matter for any
additional proceedings.
Employer appeals from the Award entered by the Commission raising one point.
Employer asserts:
The Labor and Industrial Relations Commission erred in denying
Employer relief from compensation awards that had been entered on a default
basis because Employer in its motion to set aside awards and to file answer to
claim for compensation out-of-time had demonstrated that as a matter of law it
had good cause for its defaults and had acted reasonably but inadvertently in
believing that its Texas workers [sic] compensation insurer was handling defense
of the claims(s) filed by [Employee] relating to the same work-related accident.
Standard of Review
Our review of a workers’ compensation award is governed by section 287.495. It
provides, in part:
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.
§ 287.495.1.
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The Commission’s findings of fact regarding a workers’ compensation claim are
conclusive and binding on appeal unless there is fraud. Franco-Lopez v. Martinez, 433 S.W.3d
454, 456 (Mo.App. W.D. 2014). We defer to the Commission on issues involving credibility of
witnesses and weight to be given their testimony; we review questions of law de novo. Sell v.
Ozarks Medical Center, 333 S.W.3d 498, 506 (Mo.App. S.D. 2011).
Analysis
Employer argues it demonstrated below, as a matter of law, that it had good cause for
default. However, Employer’s challenge is not to a question of law, but a finding of fact by the
Commission.
Employer’s challenge does not fall under any of the grounds authorized by section
287.495.1. Even assuming arguendo that this court has authority under section 287.495.1 to
entertain such an argument, Employer’s position is not well taken. A predicate assumption of
this argument is that Employer’s proffered rationale for default, that Employer honestly but
incorrectly believed that another entity was defending the claim, was necessarily credible.
Employer’s assumption on this finding of fact is incorrect.
In the absence of fraud, the factual findings of the Commission are conclusive if
supported by competent and substantial evidence, and an appellate court’s authority is confined
to questions of law. Fendler v. Hudson Services, 370 S.W.3d 585, 588 (Mo. banc 2012) (citing
section 288.210). “This Court defers to the Commission on issues involving the credibility of
witnesses and the weight given to the testimony, but in so doing it does not view the evidence
and all reasonable inferences drawn therefrom in the light most favorable to the award.” Id.
(internal quotations and citations omitted) (emphasis in original).
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The Eastern District of this Court discussed how we view uncontradicted or unimpeached
testimony in Commission cases:
The commission may disbelieve uncontradicted or unimpeached testimony.
[Copeland v. Thurman Stout, Inc., 204 S.W.3d 737, 743 (Mo.App.2006) (citing
Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc. 1993))].
However, in Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. banc 1960),
the Supreme Court stated that where evidence is uncontradicted or unimpeached,
‘the reviewing court may find the award was not based upon disbelief of the
testimony of the witnesses.’ The Copeland court found these two standards to be
compatible. 204 S.W.3d at 743. If the commission expressly declares it
disbelieved uncontradicted or unimpeached testimony, the Alexander rule applies.
Highley [v. Von Weise Gear], 247 S.W.3d [52,] 57 [(Mo.App.2008)] (citing
Copeland, 204 S.W.3d at 743). However, if the record is silent regarding
credibility, the Corp rule applies. Id.
Richardson v. Missouri State Treasurer, 254 S.W.3d 242, 244 (Mo.App. E.D. 2008). The
Commission’s ability to disbelieve uncontradicted or unimpeached testimony is confirmed by
White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010), wherein our supreme court
held that:
When the burden of proof is placed on a party for a claim that is denied,
the trier of fact has the right to believe or disbelieve that party’s uncontradicted or
uncontroverted evidence. . . . Generally, the party not having the burden of proof
on an issue need not offer any evidence concerning it.
Id.
The Commission made express findings rejecting the allegations in Employer’s sworn
affidavit that it mistakenly failed to defend this claim because it believed its Texas insurer was
defending it:
It appears to us that even the most cursory review of the Division’s notices would
make clear to any reader that proceedings were taking place in Missouri, and any
lingering confusion as to the meaning of the notices could easily have been
remedied by a phone call to the Division or to employee’s counsel. Even if there
were initially some reasonable and good faith misunderstanding as to whether
someone would appear to defend employer at the hardship hearing of May 21,
2013, we are of the opinion that there cannot have been any such mistake
thereafter, when employer received a temporary award wherein the administrative
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law judge made clear there was no appearance by anyone (including any
insurance carrier) at the hearing to defend the claim, and also made clear
employer was liable to pay workers’ compensation benefits in Missouri. Yet,
employer continued to take no action until after another hearing and a final award.
We conclude that it was unreasonable for employer to fail to defend this claim on
the basis of its alleged mistaken belief that these Missouri proceedings were a part
of a workers’ compensation proceeding in Texas.
(Emphasis added). The Commission (and the ALJ) had the authority to disbelieve Employer’s
allegations, which it expressly did.
It was Employer’s burden to persuade the trier of fact of its proof for its Motion to Set
Aside Awards and to File Answer to Claim for Compensation Out-of-Time. The record is clear
that Employer had notice of all the proceedings, by its own admissions, and that neither the ALJ
nor Commission were persuaded by the affidavit Employer submitted. Point denied. The Award
of the Commission is affirmed.
WILLIAM W. FRANCIS, JR., J. – AUTHOR
DON E. BURRELL, P.J., - Concur
NANCY STEFFEN RAHMEYER, J. – Concur
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