Workers' CompensationEditor:

Chris T. Archer, Esquire

Does the Division of Workers' Compensation 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 the original award.  The Labor and 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 Administrative Law Judge and the Division of Workers' Compensation 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."

8 CSR 20-3.040, which prohibits the appeal to the Labor and Industrial Relations Commission of a temporary or partial award, is constitutional. Motor Control Specialties, Inc., et al. v. Labor and Industrial Relations, et al., No. 71586 (Mo. App. W.D., November 9, 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, Section18, which 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 constitutionally permissible."

Defining 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., Nos. 71654 and 71857 (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, 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-Jan