Editor:Chris T. Archer, Esquire
Does the DWC retain jurisdiction and the authority to enter an amended award? Thomas v. Treasurer of the State of Missouri, No. 72432 (Mo. App. W.D., December 14, 2010), Martin, J.
An award of compensation was issued that had conflicting provisions
on the amount or percentage of PPD that was awarded. An amended award
was drafted due to the clerical error. Claimant appealed the second
amended award but did not file an appeal of original award. The
industrial commission denied jurisdiction over the case, finding that
the error was not clerical but judicial and therefore no appeal was
properly taken from the one and only valid award provided.
The court stated that unless an application for review has been
filed, an ALJ and the DWC retains jurisdiction. "Section 287.610.6
RSMo does not prevent an ALJ from determining a claim by an amended
award so long as the ALJ's amended award is entered before a review
hearing is initiated under either Section 287.470 or Section 287.480,
or prior to the expiration of twenty days following the entry of the
original award, whichever first occurs."
Is 8 CSR 20-3.030, that prohibits the appeal to the Industrial Commission of a temporary or partial award, constitutional? Motor Control Specialties, Inc., et al. v. Labor and Industrial Relations, et al., No. 71586 (Mo. App. W.D., November 11, 2010), Newton, J.
A declaratory judgment petition was filed challenging 8 CSR
20-3.030(1) that states: "Whenever an administrative law judge issues a
temporary or partial award under Section 287.510 RSMo, the same shall
not be considered a final award from which an application for review
(see 8 CSR 20-3.030) may be made.'
Motor Control challenged the regulation, arguing it violates due
process clause of the Missouri Constitution, Article V, section 18 of
the Missouri Constitution which that provides that all final decisions
by administrative agencies are subject to judicial review.
The court affirmed the lower court's decision that upheld the
regulation as being constitutional finding that awards denoted as
partial or temporary are not "final" awards as that term has been
interpreted and defined in Missouri. "Intermediate decision-making
steps within the agency, before its decisions become final are
What is the burden of proof for a motion for summary
judgment in a civil case raising the exclusivity of the worker's
compensation act? Treaster, et ux., v. Betts, et al., No. 71654 (Mo. App. W.D., November 9, 2010), Witt, J.
In a case involving an accident that occurred before the legislative
change requiring "strict construction" in 2005, the court outlined the
requirements to satisfy a summary judgment motion following Robinson v Hooker, WD 71207, decided August 2010.
The court stated that the co-employee defendant in the civil case, in
order to be granted summary judgment motion, must show: (1)
Plaintiff's claim is based on an accident arising out of and in the
course of plaintiff's employment; (2) Respondents were acting as
employees; and (3) Respondents were acting pursuant to non-delegable
duty that the Employer owed to its employees.
In this case involving an accident that occurred in 2003, "the
something more test is still applicable." If Respondents otherwise
satisfy the requirements of summary judgment above, the burden shifts to
the petitioner to show that there is a genuine issue of material fact
as to whether Respondent's conduct falls within an exception to
co-employee immunity; that the Respondent's conduct satisfies the
"something more" exception to co-employee immunity.
The court remanded the case for a final record to be developed consistent with this decision.
The Missouri Bar Courts Bulletin, 11-Feb