Court of Appeals of Missouri, Southern District, Second Division
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Rahmeyer, J., Scott, J., and Francis, J.
workers compensation appeal, Penmac complains that the
Commission awarded benefits on a liability theory Claimant
never raised before the ALJ or in seeking Commission
review. "[E]ven if the
Commission could properly consider non-appealed matters
… it could not do so without appropriate notice and
opportunity to be heard." Nolan v. Degussa
Admixtures, Inc., 246 S.W.3d 1, 5 (Mo.App. 2008);
see also Mell v. Biebel Bros., Inc., 247 S.W.3d 26,
32 (Mo.App. 2008); Stonecipher v. Poplar Bluff R1 School
Dist., 205 S.W.3d 326, 332-33 (Mo.App. 2006). We reverse
and remand for further proceedings.
summarize only the background needed to understand why we
rule as we do. Penmac, a personnel staffing service, employed
Claimant to perform seasonal or temporary services for
Penmac's clients, including a food plant
("Reckitt"). After working her Reckitt shift one
winter day, Claimant slipped on ice, fell, and was injured
while walking to her car in Reckitt's parking lot.
pursued a workers' compensation claim against Penmac. The
parties agreed that Penmac employed Claimant, but Reckitt
owned and controlled the parking lot, facially barring relief
because after-work injuries generally are not compensable and
an extended-premises exception now lies only if the
employer owns or controls the site of the accident.
See Scholastic, Inc. v. Viley, 452 S.W.3d 680,
683-84 (Mo.App. 2014) (citing § 287.020.5).
quote the ALJ's decision, Claimant's theory around
this problem was that Reckitt "also was her
statutory employer" per § 287.040, so
"her injury on the statutory employer's
property is compensable under the extended premises
doctrine." The ALJ rejected this theory and denied the
sought Commission review, specifically challenging the
ALJ's rejection of her statutory-employer theory of
liability. The Commission ignored that issue, but
reversed the ALJ and awarded benefits on a theory Claimant
never asserted or suggested; i.e., Reckitt's
"joint control" or "joint benefit"
reflecting "joint service" per principles cited in
Leach v. Bd. of Police Comm'rs, 118 S.W.3d 646
(Mo.App. 2003), and Shurvington v. Cavender Drywall,
36 S.W.3d 432 (Mo.App. 2001). The Commission indicated that
it had tipped its hand on this during the parties' oral
argument, but denied Penmac's request to remand for
additional evidence as to the new theory. We agree with
Penmac that this refusal to remand was error.
appeal, Claimant seeks to justify the Commission's
"injecting" the new Leach/Shurvington
basis for liability, and opines that "no legal authority
… suggests the Commission is limited in its
decision-making authority to only that legal theory offered
by the proponent on review of a singular issue." Such
arguments miss the mark. As in prior cases, we need not
decide whether the Commission can reach a non-appealed issue
"because [Stonecipher's] holding regarding
the due process requirement in section 287.470 is dispositive
here." Mell, 247 S.W.3d at 32; see also
Stonecipher, 205 S.W.3d at 331-33. Whether or not the
Commission can reach non-appealed issues, "[d]ue
process, in Missouri workers' compensation cases and
elsewhere, contemplates the opportunity to be heard at a
meaningful time and in a meaningful manner."
Nolan, 246 S.W.3d at 5.
not elaborate or reach Penmac's other points. The Final
Award is reversed and the case is remanded to the Commission
for further proceedings consistent herewith.
 The parties referred to themselves as
"Claimant" and "Penmac" in their
appellate briefs and we do likewise. The
"Commission" is the Labor and Industrial Relations
Commission. Statutory citations are to RSMo chapter 287 as