Court of Appeals of Missouri, Eastern District, Second Division
from the Labor and Industrial Relations Commission
B. SULLIVAN, P.J.
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.
and Procedural Background
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
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.
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.
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.
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, 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.
to Section 287.495.1,  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 ...