by Matthew D. Vacca

Synopsis: How to get paid, how to keep costs down and how to avoid getting struck with sanctions as you prosecute or defend your client's case. These are three very important and fundamental considerations for any trial attorney. In the worker's compensation arena, the Administrative Law Judge ("ALJ") and the Labor & Industrial Relations Commission play an important role in all three endeavors. This article will examine the award and collection of the customary attorney fee, discuss what costs may be imposed and in what circumstances, and point out some important discovery provisions that can ensnare an unwary attorney into a penalty situation involving costs or sanctions which may very well include payment of your opponent's attorney fees.

I. How To Secure Attorneys Fees In Worker's Compensation Proceedings

Section 287.260, RSMo 1994, grants broad power to control attorney's fees in workers' compensation cases to the administrative law judge (alj) and the Labor & Industrial Relations Commission ("the commission").

All attorney's fees for services in connection with this chapter shall be subject to regulation by the division or the commission and shall be limited to such charges as are fair and reasonable and the division or the commission shall have jurisdiction to hear and determine all disputes concerning the same.¹

The ALJ and the commission have wide discretion in determining the appropriateness of attorney's fees.² Reversal of their decision requires a finding that the fee awarded was "so inadequate and so unreasonable as to constitute an abuse of the discretion of the [fact finder]."³ An ALJ may cap attorney's fees and may determine an amount that will be presumed reasonable in the absence of evidence on the subject. ⁴

If an appeal is based on a written contract, it is necessary to have a copy of the contract in evidence or the court has nothing to review. ⁵ An ALJ may interpret the fee contract.⁶ An ALJ may construe an attorney's contract allowing for a contingent percentage of the recovery to apply only to the weekly benefits and not on future benefits.⁷ Conversely, the ALJ can award a contingent percentage on the entire amount, including medical and future nursing expenses.⁸ While 25% of the benefits recovered is usual and customary, a fee of 50% of the total recovery has been sanctioned.⁹ The ALJ can award the attorney's fee "in a lump sum or in installments."¹⁰ The ALJ may also award interest on the attorney's fees until paid.¹¹

The factors to be considered in determining the reasonable value of attorney's fees in Missouri are time, nature, character and amount of services rendered, nature and importance of the litigation, degree of responsibility imposed on or incurred by the attorney, the amount of money or property involved, the degree of professional ability, skill and experience called for and used, and the result achieved. . . . The courts are themselves experts on attorney's fees and this expertise deals not only with pre-trial and trial services but also extends to the value of any appellate services rendered."¹² Attorney's fees can be recovered from an opponent who appeals a temporary award to the Labor Commission and, after dismissal for lack of jurisdiction, applies for review to the Court of Appeals.¹⁴

The commission, however, lacks subject matter jurisdiction to construe a shareholder agreement to determine which of two shareholders of a dissolved professional corporation is entitled to an award of attorney's fees.¹⁴ There is no subject matter jurisdiction in the division in such an instance, because the parties to the shareholder agreement are not necessarily parties to the underlying workers' compensation proceeding.¹⁵

When a recovery is obtained against third parties responsible for a worker's injuries, the workers' compensation insurer is required to shoulder a proportionate share of the attorney fee burden.¹⁶ The formula for calculation of the insurer's share of the attorney fee requires that:

(1) the expenses of the third party litigation should be deducted from the third party recovery; (2) the balance should be apportioned in the same ratio that the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party; (3) the amounts due each should be paid forthwith; (4) the amount paid the employee should be treated as an advance payment on account of any future installments of compensation; and (5) . . . the employee should be entitled to future compensation benefits in the event the amount paid him as an advance is exhausted under the provisions of the statute.¹⁷

The courts may allow an attorney's fee on "future benefits saved" to the employer after the injured worker recovers from a third party tortfeasor.¹⁸ The employer is not entitled to interest on the share of the judgment owed to it.¹⁹

Comparative fault may reduce the third party recovery amount owed to the employer in subrogation. In 1993, the Missouri Legislature amended § 287.150.1, § 287.150.2 and § 287.150.3 to take into consideration an employee's comparative fault for the employer's recovery and credit for future installments.²⁰ "Under the amended statute, if a 'trier of fact' determines that an employee is comparatively at fault, the employer's recovery would be diminished by that same percentage."²¹

Where the claimant's medical bills have originally been paid by Medicaid and litigation later produces a recovery of benefits, the government is not required to share the attorney fee burden with the claimant and is entitled to full reimbursement with no setoff for attorney's fees.²²

While research discloses no case specifically dealing with disputes between an employer/insurer and an attorney regarding fees, § 287.160, RSMo 1994, is broad enough to vest the ALJ with authority to regulate fees for defense attorneys. The statute does not differentiate between claimant's attorney fees and defendant's attorney fees; it grants the ALJ "jurisdiction to hear and determine all disputes concerning" all attorney's fees.²³

The breadth of the statute raises an interesting threshold jurisdictional question: Should an attorney or firm be forced to file suit against an employer or its insurer in circuit court to recover its fees? A court may dismiss for a lack of subject matter jurisdiction. As a practical matter, the underlying workers' compensation claim will probably have been resolved before the fee dispute would arise with the division having lost jurisdiction. In any event, a defense attorney can recover fees in circuit court from the guaranty fund set up to cover claims when the workers' compensation insurance company that originally hired the attorney becomes insolvent. ²⁴

II. Attorney's Fees As Costs In Workers' Compensation Proceedings

Sections 287.203 and 287.560, RSMo 1994, respectively, delineate the reallocation of costs involved in reinstating temporary benefits and the scope and method for imposition of costs involved in bringing or defending any proceeding without reasonable ground. The discussion focuses on the situations in which these costs include an award of an opponent's attorney fees.

A. Attorney's Fees as Costs Under § 287.203, RSMo 1994

Section 287.203, RSMo 1994, provides for the reasonable costs of recovery to the prevailing party in a proceeding to secure temporary disability benefits after initial payment of benefits has been made and subsequently terminated. The term costs of recovery includes attorney fees.²⁵ As against the employer and its insurer, the administrative law judge may award an additional percentage of the underlying judgement as an attorney fee rather than an hourly rate.²⁶ Costs of recovery may also be awarded to employers, although research discloses no cases specifically awarding attorney fees to a prevailing employer under that provision.

Attorney fees as part of any cost assessment is contrary to the usual rule that each party is to bear the financial burden of its own litigation, including the expense of an attorney.²⁷ This is sometimes referred to as the "American Rule."²⁸

B. Attorney's Fees (or a Lack Thereof) Under § 287.560, RSMo 1994

"…[I]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without any reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them."²⁹ The Industrial Commission has awarded attorney fees to an employer as "the whole cost of the proceedings" under § 287.560 in the same manner as it has awarded attorney fees as a "cost of recovery" under § 287.203.³⁰ Likewise, the commission has awarded attorney's fees to an employee under § 287.560.³¹

Nevertheless, the Southern District recently reversed an award of attorney fees to a claimant under § 287.560.³² The Southern District distinguished the phrase "the whole cost of the proceedings" used in § 287.560 from the phrase "cost of recovery" as used in § 287.203. "This court holds that section § 287.560 does not permit the commission to order payment of an opposing party's attorney fees as a 'cost of the proceeding.'"³³ The Southern District limits the "cost of the proceedings" to those enumerated in the civil statute. These include costs for issuance of process, subpoenas for witnesses, depositions of witnesses, fees and mileage for subpoenas to be served as in other civil actions.³⁴

In a similar vein, the Western District has indicated that in assessing costs of recovery under § 287.560, the judge should be guided "by the costs available in civil actions under § 514.060…," including the costs of depositions, transcripts and subpoenas.³⁵ The civil statute simply allows the prevailing party in civil actions costs against the other party.³⁶ The Western District alludes that costs are the same under § 287.560 as in civil actions where attorney's fees are generally not recoverable absent a specific statute.³⁷ The court also indicated the Labor & Industrial Relations Commission could look to its own past practice for guidance on the scope of costs.³⁸

As mentioned, the Labor & Industrial Commission has indicated that the scope of costs under § 287.560 is identical to those under § 287.203, including attorney's fees.³⁹ However, several of the commission's decisions were delivered after the Western District's decision so they cannot logically be considered past practice.

The Eastern District has yet to squarely decide the issue of the availability of attorney's fees as a part of "the whole cost of the proceedings" under § 287.560 as part of any published decision. Three Eastern District memorandum decisions pursuant to Rule 84.16(b) found no abuse of discretion in commission decisions awarding attorney's fees under § 287.560.⁴⁰

The court may have further signaled the direction it will take on attorney's fees under § 287.560 by reference to its analysis in granting attorney's fees as a "cost of recovery" under its published case of first impression analyzing costs under § 287.203.⁴¹ In reaching its conclusion that attorney fees were recoverable under § 287.203, the Eastern District first noted that several other jurisdictions include attorney's fees in the phrase "cost of recovery" or similar phrases under their general and workers' compensation laws.⁴² Next, the court emphasized attorney's fees are the major costs associated with recovery of workers' compensation benefits.⁴³ "[W]e think that the phrase 'cost of recovery' contemplates an award of attorney's fee on its face, since legal fees are unquestionably the largest cost incurred when an employee is forced to sue to recover a worker's compensation award."⁴⁴ The use of the word "whole" immediately before the words "cost of the proceedings" in § 287.560 could be construed to broaden the traditional use of the term "costs." Clearly, the court did not distinguish between temporary or final awards.

Given the Eastern District's emphasis on the burden associated with recovering statutorily provided benefits and the prior unpublished decisions affirming awards of attorney's fees under § 287.560, it is unclear whether the Eastern District will join the Southern District in omitting attorney's fees from the § 287.560 term "cost of the proceedings".

C. The Purpose of Costs Under §§ 286.203 and 287.560

It appears the purpose of costs under § 287.560 for actions taken without reasonable ground is different than reinstatement costs under § 287.203. Section 287.560 costs implicate discretion.⁴⁵ Use of the term shall under § 287.203 eliminates discretion so that costs, including attorney's fees, are automatically awarded.⁴⁶ Thus, reinstatement costs are a mandatory reallocation of burden to the prevailing party in claiming or defending against temporary benefits, while no reasonable ground costs are permissive. Section 287.560 costs require a specific finding that a proceeding is brought or defended on no reasonable ground. The proponent must persuade the judge as to the lack of reasonableness in the opposing claims or defenses.

In determining the appropriateness of assessing no reasonable ground costs, the commission has found persuasive the rationale used by appellate courts for determining frivolous appeal under Rule 84.19, Supreme Court Rules.⁴⁷ The commission endeavors to avert the expense of meritless defenses and claims that impede resolution of colorable claims while balancing the chilling effect such sanctions have on all workers' compensation proceedings.⁴⁸ Under this Rule 84.19 analysis, a claim or defense would be based on no reasonable ground if it presented no justiciable question or is so readily recognizable as devoid of merit on the face of the record that there is little prospect it could ever succeed.⁴⁹ "The use of this statute should be limited to avoid egregious abuse of the administrative system."⁵⁰ Costs are not appropriate under § 287.560 simply because the claim failed.⁵¹

III. The Imposition Of Sanctions Under § 287.650, RSMo Supp. 1997

Section 287.650, RSMo Supp.1997, involves the application of general sanctions in workers' compensation proceedings, including discovery violations. There are numerous other sanction provisions in Chapter 287 of which the practitioner should be aware when practicing before the division or the commission, but this section will focus on sanctions under § 287.650 that may include certain violations resulting in an award of opposing attorney's fees.

A. General Sanctions

Section 287.650 delineates the ALJ's power to impose general sanctions. "The Division shall have power to strike pleadings and enter awards against any party or parties who fail or refuse to comply with its lawful orders." As for lawful orders, ALJs are vested with "full power, jurisdiction and authority to issue all interlocutory orders necessary to the proper and expeditious handling of the case."⁵² These provisions grant authority with broad language.

There are only a few reported cases interpreting the scope of this power other than as it relates to dismissal of an employee's claim for failure to prosecute.⁵³ The provisos, on their face, appear to reach a multitude of conduct both prior to and at the hearing. Exercise of the power granted under § 287.560.1 is discretionary, not mandatory.⁵⁴ In this regard, it appears the judge may issue the remonstrative award summarily.⁵⁵ In one case the ALJ struck the employer's answer under § 287.650.1 and refused proffered evidence due to employer's failure to comply with previous temporary awards.⁵⁶ The appellate court never reached review of the ALJ's sanction, dismissing instead for lack of jurisdiction.⁵⁷

Dovetailing with this general workers' compensation sanction provision is an important contempt provision of the Administrative Procedure Act. Section 536.095 states:

In any hearing in a contested case before an agency created by the constitution or state statute if any person acts or refuses to act in such manner that a contempt of court would have been committed if the case were a civil action before a circuit court, the agency in addition to any other powers it may have by law may apply to a judge of the circuit court of the county of the hearing or of any county where such person resides or may be found, for an order on any such person to show cause why he should not be punished as for contempt, which order and copy of the application therefor shall be served upon the person in the same manner as a summons in a civil action. Thereafter the same proceedings shall be had in such court as in cases of contempt of circuit court.⁵⁸

Any act which would constitute contempt in front of a circuit court judge constitutes contempt if performed before a workers' compensation ALJ.⁵⁹

B. Discovery Sanctions Under § 287.560 and Rule 56.01

Likewise, the Missouri Rules of Civil Procedure may also enlarge the scope of sanctions available, including attorney's fees, in a workers' compensation proceeding. Civil discovery rules appear to apply to workers' compensation cases insofar as they relate to the taking of depositions. Generally, discovery in workers' compensation is limited to depositions taken in the same manner as civil depositions.⁶¹ Recently the Supreme Court said:

We hold only that the rules of civil procedure governing depositions in civil actions also govern, as the statute authorizes, depositions taken pursuant to section 287.560. This opinion does not address or decide the question of what rules of civil procedure, other than those that apply to depositions, are applicable to proceedings before the division of workers' compensation.⁶1

The Court there held a videotape was not "work product" under Rule 56, but rather a discoverable statement that is an enumerated exception to the "work product" rule under the same provision.

Rule 56.01(b)(3) is applicable here because the statute [§ 287.560] requires that depositions in workers' compensation matters are to be taken in the same manner as civil depositions. Thus, Rule 56.01 is necessarily implicated to the degree that the rule applies to civil depositions taken in circuit court proceedings. Because Rule 56.01(b) specifies, generally, the scope of what may be discovered using a deposition under Rule 57, the rule also controls what may be discovered using a deposition under section 287.560.⁶2

Rules regarding supervision,⁶³ control, limitation, termination and sanction of the use and abuse⁶⁴ of depositions must also be necessarily implicated in a workers' compensation proceeding to the degree they apply to civil depositions in circuit court proceedings. Rule 57.03(e) involves motions to terminate or limit deposition examination, which in turn incorporates and references motions for protective orders under 56.01(c), which specifically incorporates sanctions for failure to make discovery under Rule 61.01. Sanctions under Rule 61.01 may include: barring the guilty party from supporting or opposing designated claims or defenses; prohibition of certain matters from evidence; striking pleadings or parts thereof; staying the proceeding until an order is obeyed; dismissal in whole or part or default judgment; failure to obey may be treated as contempt; the guilty party may be compelled to pay expenses and attorney fees; and any orders as are just.⁶⁵

Summary

Collecting fees and keeping costs under control are indispensable functions necessary to the business aspect of functioning as an attorney. However, they also implicate professional and ethical considerations. Collegiality and professionalism, or a lack thereof, are often entangled in the use of costs and sanctions devices. Unfortunately, use of the costs and sanctions provisions and the other statutes and rules they necessarily implicate is on the rise. Requests for costs under § 287.203 are usually accompanied by an identical request under § 287.560. Numerous cases have been decided at the initial ALJ level either awarding or denying costs or imposing a sanction under § 287.650. Attorneys and judges may expect guidance elucidating these broad provisions in the future as more cases rise to the appellate levels. In the meantime, comprehending the existence and scope of the provisions may help attorneys prepare to justify and collect their fees, as well as helping attorneys reexamine the merits of claims and defenses in light of the known standards and potential risks.

Endnotes

1 Section 287.260, RSMo 1994.

2 Arledge v. Progressive Tire Distribution, 924 S.W.2d 506, 511 (Mo. App. W.D. 1996).

An attorney fees award by the Commission will be reversed only when it is established that the allowance was so inadequate and so unreasonable to constitute an abuse of discretion. Faulkner v. St. Luke's Hosp., 903 S.W.2d 588, 594 (Mo. App. 1995); Page v. Green, 758 S.W.2d 173, 175 (Mo. App. 1988). The determination of a fair and reasonable fee involves a balancing of many interests. The fee certainly cannot be arbitrarily set and must be supported by evidence in the record regarding the necessity, reasonableness, and fairness of the fee. Page, 758 S.W.2d at 176, quoting Dean Timothy J. Heinsz, in Missouri Workers' Compensation (Law and Practice) § 21-2, p. 200, (1984). This standard gives the appellate court little room to "second guess" the Commission. Faulkner, 903 S.W.2d at 594. Id.

3 Sanderson v. Producers Comm'n Ass'n, 241 S.W.2d 273, 275 (Mo. App. W.D. 1951); see also, Wynn v. Navajo Freight Lines, Inc., 679 S.W.2d 379, 380 (Mo. App. E.D. 1984).

4 Faulkner v. St. Luke's Hosp, 903 S.W.2d 588, 594 (Mo. App. W.D. 1995).

The Commission's decision regarding attorney's fees may be reversed only if it can be established, as a matter of law, that the allowance was so inadequate and so unreasonable to constitute an abuse of discretion. Sanderson v. Producers Commission Ass'n, 241 S.W.2d 273, 275 (Mo. App. 1951). While the Commission could have been more generous with claimant's counsel, the standard by which we exercise review of this issue leaves us little room to second guess the Commission, especially when the record related to attorney's fees gives us no additional information beyond that recited above. We conclude that no abuse of discretion has been shown. Id.

5 Hall v. Wagner Div.-McGraw-Edison, 782 S.W.2d 441, 444 (Mo. App. E.D. 1989)

The attorney here alleges he has a contract with claimant giving him 25% of any award resulting from the first appeal in this case. He does not, however, cite to any evidence in the record showing the existence of the contract; nor is any contract listed in the index to the legal file or found in the legal file. We do not review issues based upon evidence not found in the record. Id.

6 Page v. Green, 758 S.W.2d 173 (Mo. App. S.D. 1988).

7 Id.

8 Id. at 176

9 Knox v. Land Constr. Co., 345 S.W.2d 244, 248 (Mo. App. W.D. 1961) "We believe there was substantial evidence supporting the Commission's allowance and approval of 50 percent as a reasonable attorney fee." Id.

10 Vaughan v. County of Mississippi, 590 S.W.2d 688, 690 (Mo. App. S.D. 1979). "Section 287.260 clearly allows the Division to award reasonable attorney's fees, payable either in a lump sum or installments." Id.

11 Wasinger v. Labor and Indus. Relations Comm'n, 701 S.W.2d 793, 795 (Mo. App. E.D. 1985). "We find nothing in § 287.260 RSMo 1978, that would prevent the Commission from providing an attorneys' lien on a fixed sum which would bear interest until paid. That section authorizes the Commission to determine fees that are fair and reasonable, and resolve disputes at the time of the award or prior to payment." Id.

12 Cervantes v. Ryan, 799 S.W.2d 111, 115 (Mo. App. E.D. 1990); Higgins v. McElwee, 680 S.W.2d 335, 344 (Mo. App. E.D. 1984).

13 Fravel v. Guaranty Land Title, 934 S.W.2d 23 (Mo. App. W.D. 1996).

14 Hunt v. Laclede Gas Co., 869 S.W.2d 770, 773 (Mo. App. E.D.1993).

15 Id.

16 Ruediger v. Kallmeyer Bros. Service 501 S.W.2d 56 (Mo. banc 1973).

17 Id. at 59.

18 Cervantes v. Ryan, 799 S.W.2d 111, 116 (Mo. App. E.D. 1990). Cervantes alleged that the trial court erred in not allowing him attorney's fees on "future benefits saved" by the employer due to his successful recovery against third party tortfeasors.

Review of plaintiffs petition reveals that no such determination of attorney's fees based on "future benefits saved" is asked of the trial court. For that matter, the petition does not raise the issue of attorney's fees for "future benefits saved" in any request. At trial, when testimony was presented regarding the extent of future benefits, counsel for Ralston objected. In response, counsel for Cervantes informed the court that the evidence was being presented for issues relating to motivation for settling the compensation claims. No evidence was presented on the issue of whether and to what extent Ralston may be liable for attorney's fees for future Workers' Compensation benefits. We find there was insufficient evidence before the trial court to make any such determination of attorney's fees owed in future benefits saved.

19 Cervantes v. Ryan, 799 S.W.2d 111, 117 (Mo. App. E.D. 1990).

Missouri cases do not provide for the recovery of interest by the employer on a third party judgment in favor of the employee. See Ruediger v. Kallmeyer Brothers Service, 501 S.W.2d 56 (Mo. banc 1973); Parker v. Laclede Gas Co., 770 S.W.2d 461 (Mo. App. E.D. 1989). Illinois case law expressly prohibits the allowance of interest to the employer. Shelby v. Sun Express, Inc., 107 Ill.App.3d 362, 63 Ill.Dec. 115, 437 N.E.2d 764 (1982). Id.

20 Liberty Mut. Ins. Co. v. Garffie, 939 S.W.2d 484, 485-86 (Mo. App. E.D. 1997) (discussing amendment of § 287.150.3).

21 Id.

22 Dale By and Through Dale v. Gubin, 879 S.W.2d 699,701 (Mo. App. S.D. 1994).

23 § 287.260, RSMo 1994.

24 Hankins Const. Co. v. Missouri Ins. Guar. Ass'n, 724 S.W.2d 583, (Mo. App. E.D. 1986). "Pursuant to § 375.785.4(1)(b) when [insurer] became insolvent, the obligation to provide a defense became an obligation of the Guaranty Association." Id.

25 P. M. v. Metromedia Steakhouses, Inc., 931 S.W.2d 846 (Mo. App. E.D. 1996).

26 Id. at p. 849, n.3.

27 Washington University v. Royal Crown Bottling Co., 801 S.W.2d 458, 470 (Mo. App. E.D. 1990).

28 David Ranken, Jr. Technical Institute v. Boykins, 816 S.W.2d 189, 193 (Mo. banc 1991). "Missouri has adopted the American Rule; that is, absent statutory authorization or contractual agreement, with few exceptions, each litigant must bear his own attorney's fee." Id.;

29 § 287.560 RSMo 1994.

30 See Ruegge v. Chrysler Corp., #91-198099 (L&IRC, September 2, 1998), aff'd mem., 987 S.W.2d 53 (Mo. App. E.D. 1999); Green v. McDonnell-Douglas, #93-037480 (L & IRC, November 7, 1997), aff'd mem., 977 S.W.2d 32 (Mo. App. E.D. 1998).

31 Stenger v. Rogers Dev., # 95-172536 (L & IRC, October 22, 1997), aff'd mem., 972 S.W.2d 594 (Mo. App. E.D. 1998) (per curiam); Birchfield v. Austin, #90-194931 (L & IRC, November 8, 1995), aff'd mem., 928 S.W.2d 916 (Mo. App. E.D. 1996) (per curiam); Robinson v. Krey Packing Co., 467 S.W.2d 91 (Mo. App. E.D. 1971) (L & IRC, September 16, 1996).

32 Reese v. Coleman, 990 S.W.2d 195 (Mo. App. S.D. 1999).

33 Id. at 6.

34 Id. at 4.

35 Stillwell v. Universal Constr. Co., 922 S.W.2d 448, 457 (Mo. App. W.D. 1996).

36 Section 514.060, RSMo 1994.

37 Stillwell v. Universal Constr. Co., 922 S.W.2d 448, 457 (Mo. App. W.D. 1996).

38 Id.

39 See Ruegge v. Chrysler Corp., #91-198099 (L & IRC, September 2, 1998), aff'd mem., 987 S.W.2d 531 (Mo. App. E.D. 1999) (per curiam); Stenger v. Rogers Dev., # 95-172536 (L & IRC, October 22, 1997), aff'd mem., 972 S.W.2d 594 (Mo. App. E.D. 1998) (per curiam); Green v. McDonnell-Douglas, #93-037480 (L & IRC, November 7, 1997), aff'd mem., 977 S.W.2d 32 (Mo. App. E.D. 1998); William Robinson v. Krey Packing Co., AJ-101075 (L & IRC, September 16, 1996); Birchfield v. Austin, #90-194931 (L & IRC, November 8, 1995), aff'd mem., 928 S.W.2d 916 (Mo. App. E.D. 1996) (per curiam).

40 Ruegge v. Chrysler Corp., 987 S.W.2d 594 (Mo. App. E.D. 1999) (per curiam); Stenger v. Rogers Dev., 972 S.W.2d 594 (Mo. App. E.D. 1998) (per curiam); Birchfield v. Austin, 928 S.W.2d 916 (Mo. App. E.D. 1996) (per curiam).

41 Metromedia, 931 S.W.2d 846 (Mo. App. E.D. 1996).

42 Id. at 849

43 Id.

44 Id. at 849.

45 Russell Lewis v. Kloster Co., Inc., #96-064158 (L & IRC, December 10, 1998).

46 Section 287.203, RSMo 1994. "It has long been the general rule in Missouri that the use of the word "shall" in a statute creates a mandatory obligation." Jones v. Missouri Dept. of Social Servs., 966 S.W.2d 324, 329(Mo. App. E.D. 1998), citing Welch v. Eastwind Care Ctr., 890 S.W.2d 395 (Mo. App. W.D. 1995).

47 O'Rourke v. Sandberg, Phoenix & Von Gontard, #93-185809 (L & IRC, November 5, 1998).

48 Id.

49 Id., citing Papineau v. Baier, 901 S.W.2d 190, 192 (Mo.App.W.D.1995).

50 O'Rourke at 3.

51 Id.

52 8 C.S.R. 20-3.010(2)(a). "Properly promulgated rules have the 'force and effect of law.'" Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125, 134 (Mo. banc 1997).

53 Burkett v. Kansas City Mo. School Dist., 955 S.W.2d 567 (Mo. App. W.D. 1997); Cade v. Bendix Corp., 564 S.W.2d 608 (Mo. App. W.D. 1978).

54 Trammel v. S & K. Indus., Inc., 784 S.W.2d 209, 211 (Mo. App. W.D. 1989).

55 Section 287.550, RSMo 1994.

56 Sutton v. Vee-Jay Cement Contracting Co., 937 S.W.2d 334, 335 (Mo. App. E.D. 1996).

57 Id. at 336.

58 Section 536.095, RSMo 1994.

59 State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo. banc 1994).

60 Section 287.560, RSMo 1994.

61 State ex rel. McConaha, v. Allen, 979 S.W.2d 188 (Mo. banc 1998).

62 McConaha, at 3.

63 State ex rel. River Cement Co. v. Pepple 585 S.W.2d 122 (Mo. App. E.D. 1979).

[§ 287.560] provides that the taking of depositions in workmen's compensation cases is to be governed by the rules of civil procedure. Tillman v. Wedge Mobile Service Station, supra. Rule 57.09 controls the issuance of subpoenas as they relate to depositions. Rule 57.09(b) states that a subpoena may request the person to whom it is directed to produce books, papers, documents or tangible items. We believe it chimerical to hold that the claimant can compel the relator to produce the machine in question at a deposition hearing but cannot inspect the machine with considerably less effort at relator's plant. Id. at 125.

64 Lewis v. City of Liberty, 600 S.W.2d 677 (Mo. App. W.D. 1980). "Rule 57 controls the use of depositions in civil cases in the circuit court, and, by reason of the plain, straightforward language used in § 287.560, supra, controls their use in like manner in workmen's compensation proceedings. Tillman v. Wedge Mobile Serv. Station, 565 S.W.2d 653, 656 (Mo. App. 1978))." Id. at 680.

65 Rule 61.01.

Matt Vacca is an administrative law judge in the St. Louis office of the Missouri Division of Workers' Compensation. He has served as an ALJ since his appointment in 1992. He graduated from St. Louis University School of Law in 1988. He is universally acknowledged to be obscure.