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Breckle v. Treasurer of State of Missouri

Court of Appeals of Missouri, Eastern District, Second Division

April 18, 2017

ESTELLE BRECKLE, Appellant,
v.
TREASURER OF THE STATE OF MISSOURI, Custodian of the Second Injury Fund, Respondent, and ANN J. HARRISON and LYNN M. LINK, As Co-Personal Representatives of the Estate of Harry J. Nichols, Respondents.

         Appeal from the Labor and Industrial Relations Commission

          SHERRI B. SULLIVAN, P.J.

         Introduction

         Estelle Breckle (Breckle) appeals from the decision of the Labor and Industrial Relations Commission (Commission) ordering the Treasurer of the State of Missouri, Custodian of the Second Injury Fund (SIF), to direct payments of attorney fees on her disability benefits award to The Nichols Living Trust in the event her attorney predeceases her. We reverse and remand.

         Factual and Procedural Background

         On November 15, 1996, the Commission awarded Breckle permanent total disability benefits from the SIF. The Commission ordered an attorney fees lien of 25 percent of Breckle's compensation award in favor of her attorney Harry J. Nichols (Nichols).

         On June 27, 2016, Nichols filed a request with the Commission to direct the SIF to pay the attorney fees to The Nichols Living Trust in the event Nichols predeceased Breckle.

         On July 13, 2016, the Commission issued an Order to Show Cause directing all interested parties to show cause within 30 days why the Commission should not grant the request. The Commission received no response and, on September 7, 2016, the Commission issued an order granting Nichols' request and directed the SIF to pay any attorney fees pursuant to the November 15, 1996 award to The Nichols Living Trust.

         On September 26, 2016, Breckle filed a Motion to Vacate the September 7, 2016 Order. In the motion, Breckle acknowledged the Commission sent the Order to Show Cause to her house via certified mail and records indicate the United State Postal Service left the item with an "individual." Breckle asserted, however, she did not receive the Order to Show Cause and first became aware of Nichols' request on September 17, 2016, upon her receipt of the September 7, 2016 Order granting Nichols' request. Breckle requested the Commission vacate the September 7, 2016 Order and allow her time to respond and object to Nichols' request.

         On October 5, 2016, the Commission issued an Order stating it was not ruling Nichols was legally entitled to continue receiving attorney fees in the event he predeceased Breckle, but it was correcting and clarifying its prior order and ordering attorney fees due Nichols under the award be paid to The Nichols Living Trust if he, in fact, predeceased Breckle. The Commission denied Breckle's Motion to Vacate without further comment. The same day, the Commission issued a separate Correcting Order directing the SIF to pay any attorney fees pursuant to the November 15, 1996 award to The Nichols Living Trust if Nichols predeceased Breckle. This appeal follows.

         Point on Appeal

         On appeal, Breckle argues the Commission erred in denying her Motion to Vacate and granting Nichols' request to alter the attorney fees payee after his death because she did not receive notice of the Commission's Order to Show Cause and was unaware of Nichols' request until her receipt of the September 7, 2016 Order granting Nichols' request.

         Standard of Review

         Pursuant to Section 287.495.1, [1] on appeal this Court may modify, reverse, remand or set aside the Commission's award if: (1) the Commission acted without or in excess of its powers, (2) the award was procured by fraud, (3) the facts found by the Commission do not support the award, or (4) there was ...


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