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Nivens v. Interstate Brands Corp.

Court of Appeals of Missouri, Western District, Third Division

October 8, 2019

DALE NIVENS, Respondent-Appellant,

          Appeal from the Labor and Industrial Relations Commission

          Before: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

          GARY D. WITT, JUDGE

         The Treasurer of the State of Missouri as Custodian of the Second Injury Fund ("Fund") appeals the Final Award of the Labor and Industrial Relations Commission ("Commission") declaring Dale Nivens ("Nivens") to be permanently and totally disabled. The Fund raises two allegations of error. First, the Fund alleges that the Commission improperly invoked the Rule of Necessity in allowing a conflicted commissioner to participate in the Final Award. Second, the Fund alleges that the Final Award was against the weight of the evidence because Nivens was employable on the open labor market. Nivens cross-appeals alleging that the Commission erred in finding that his primary knee injury was not independently sufficient to render Nivens permanently and totally disabled. We affirm.

         Factual and Procedural Background

         Nivens began working for Interstate Brands Corporation ("Interstate Brands") in 1981 as a delivery driver and route salesman. He was responsible for driving a delivery truck and delivering breads and cakes to grocery stores on his route. This included pushing and pulling a fully loaded two-wheel cart of up to 100 pounds, as well as a four-wheeled transport rack that could weigh up to 150 pounds. Nivens also loaded the products onto in-store shelves which involved stooping, kneeling and lifting.

         On February 7, 2008, Nivens injured his right knee while pushing a fully loaded transport rack. At that time, a wheel locked on the transport rack, which caused Nivens to "wrench" his right knee and fall ("2008 Knee Injury"). An MRI showed evidence of a meniscus tear, degenerative arthritis in the patellofemoral joint, and a possible loose body. Nivens underwent surgery and was ultimately released to return to work.

         In July of 2008, Nivens returned to work at International Brands. However, he required assistance to complete his job duties. International Brands provided him with an assistant who was responsible for loading the racks and pushing them into the store as well as driving the truck. Nivens remained responsible for running the "hand-held" electronic device, keeping inventory, and ordering. In the fall of 2008, Interstate Brands informed Nivens he was going to have to complete his job without an assistant. Nivens felt that he could not perform the duties of his job without assistance given his physical restrictions so he retired.

         Nivens filed a workers' compensation claim against Interstate Brands based on his 2008 Knee Injury on November 14, 2008. He also brought a claim against the Fund alleging that his preexisting conditions combined with the 2008 Knee Injury rendered him permanently and totally disabled.[1] A hearing was held before an Administrative Law Judge ("ALJ") on July 19, 2017. On September 15, 2017, the ALJ entered a Final Award finding that Nivens sustained a 35 percent permanent partial disability of the right knee as a result of the 2008 Knee Injury. Additionally, the ALJ found that Nivens's 2008 Knee Injury combined with his preexisting conditions, including a 2007 wrist injury, a preexisting cardiac condition, prior low back injuries, and a prior right knee injury to render him permanently and totally disabled and this disability should be covered by the Fund.

         The Fund appealed the award of the ALJ to the Commission. Commissioner Chick initially declined to participate in review of the action because he had a "social relationship" with Nivens when they were classmates during high school[2] and Commissioner Chick sought to avoid any appearance of impropriety. The Commission decided the appeal based on the record of the hearing before the ALJ without hearing additional evidence. The other two Commissioners disagreed as to the outcome of the claim so no final decision could be reached. Commissioner Chick invoked the Rule of Necessity to join in the review and voted along with Commissioner Larsen to affirm the award of the ALJ in all respects. On August 20, 2018, in a two-to-one decision, the Commission adopted the award and decision of the ALJ in its entirety ("Final Judgment"). Commissioner Forrester dissented.

         The Fund appealed to this Court alleging that the Commission erred in invoking the Rule of Necessity and further contending that the Commission's finding that Nivens was unemployable on the open labor market and therefore permanently disabled was against the overwhelming weight of the evidence. Nivens cross-appealed disputing the Fund's allegations of error but also claimed that, alternatively, if the evidence was found not to support the finding of liability for the Fund, the evidence established that the 2008 Knee Injury by itself rendered him permanently and totally disabled.

         Standard of Review

         This Court's scope of review "is rigidly prescribed by statute and we will not stray out of the perimeters set for us by the legislature." Henley v. Fair Grove R-10 Sch. Dist., 253 S.W.3d 115, 127 (Mo. App. S.D. 2008). Under section 287.495.1, [3] we must affirm the award of the Commission unless the Commission acted in excess of its powers, the award was procured by fraud, the facts do not support the award, or insufficient competent evidence exists to warrant the making of the award. Barker v. Sec'y. of State's Office of Mo., 752 S.W.2d 437, 441 (Mo. App. W.D. 1988). "[W]e examine the record as a whole to determine if the award is supported by sufficient competent and substantial evidence, or whether the award is contrary to the overwhelming weight of the evidence." Lawrence v. Treasurer of State-Custodian of Second Injury Fund, 470 S.W.3d 6, 12 (Mo. App. W.D. 2015) (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). We review the award objectively and not in the light most favorable to the award. Lawrence, 470 S.W.3d at 12. "We defer to the Commission's credibility determinations and to the weight it accords the evidence, but we review issues of law, including the Commission's interpretation and application of the law, de novo." Id.

         Additionally, because the Rule of Necessity was invoked, the actions of the Commission must be viewed with "special intensity," and the record must be "thoroughly examined to determine if any injustice has been done." Barker, 752 S.W.2d at 441. "Regardless of the intensity of our review, that standard does not allow us to intrude upon the factual determinations made by the Commission based upon credibility, if the credited witness's testimony is otherwise supported by substantial and competent evidence on the record as a whole." Henley, 253 S.W.3d at 131 n. 11. This Court's standard of review is prescribed by the General Assembly and we merely "proceed[] in the case at bar, with as thorough a review of the record as we could muster and with as critical an eye as our cognitive abilities allow." Id. at 127; Lacy v. Fed. Mogul, 278 S.W.3d 691, 700 (Mo. App. S.D. 2009).

         Discussion I.

         The Fund's first point on appeal alleges that the Commission erred in affirming the Final Award because Commissioner Chick should not have participated in the decision. Although the Commission was deadlocked without Commission Chick's participation, the Fund asserts that the Rule of Necessity should not have been invoked. Instead, the Commission should have waited until the appointment of a new commissioner which occurred two days after the Commission entered its Final Award in this case.

         "Quite simply, the Rule of Necessity allows a person to be a judge in a case in which that person has an interest, provided that no arrangement is made for a substitute judge." Barker, 752 S.W.2d at 439. In Barker, a commissioner had previously represented the employer/insurer. Id. The commissioner recused herself from the case and did not participate. Id. But, following a split decision between the remaining two commissioners, the conflicted commissioner reentered the case and cast the deciding vote, citing the Rule of Necessity. Id. On appeal, the court found that the Rule of Necessity was properly used to break the stalemate of the commission but found that its use required the appellate court to use "special intensity" to review the case and insure that justice was done. Id. at 441. Since Barker, Missouri courts have continued to hold that, where the commission has reached a stalemate because two members have reached opposing findings and the third member has recused, it is proper for the third member to reenter the case to break the stalemate under the Rule of Necessity because there is no mechanism under the statute to allow a final award to be entered in this scenario. See Jennings v. Station Casino St. Charles, 196 S.W.3d 552, 556 n. 8 (Mo. App. E.D. 2006) (Rule of Necessity allowed participation by commissioner, who had previously recused himself, to vote to break a stalemate); Barker, 752 S.W.2d at 441 (same); But see Cent. Mo. Plumbing Co. v. Plumbers Local Union 35, 908 S.W.2d 366, 371 (Mo. App. W.D. 1995) (Rule of Necessity not applicable where commissioner did not disclose his interest in the case nor step into the case only to provide a quorum or to break a stalemate).[4]

         The Fund contends that the Rule of Necessity's use was improper in this case because the Commission should have waited until a new commissioner was appointed to replace Commissioner Larsen, which occurred two days after the Final Award was entered. We disagree. First, it is important to note that there is nothing in the record to suggest that the Commission knew that an appointment was imminent. The Fund notes that both Commissioner Chick and Commissioner Larsen's six-year terms on the Commission had expired, but that does not equate to knowledge that a replacement was soon to be appointed by the Governor.[5] The Fund's argument would have us impute knowledge onto the Commission that is not supported by the record before this Court, and we decline to do so.

         Further, even were we to accept the assertion that the Commission had some prior knowledge of the appointment of a new commissioner, as Nivens points out, it is mere supposition that the new commissioner would have negated the need for invocation of the rule. The newly appointed commissioner did not replace Commissioner Chick who invoked the rule but instead replaced Commissioner Larsen who voted to affirm the ALJ's Final Award. It is merely conjecture that the newly appointed commissioner would have voted to overturn the ALJ's Final Award thereby negating the need for the invocation of the Rule of Necessity by Commissioner Chick.

         It is also important to note that the Fund is not correct in its statement that "Commissioner Chick admits that he is not an impartial adjudicator in Mr. Nivens's case." Commissioner Chick went to high school with Nivens and had a social relationship with him over fifty years before the Final Award. Commissioner Chick "had no actual knowledge of this case" but initially recused himself because "there may exist the appearance of impropriety because of my past acquaintance with employee." This admission in no way reflects that Commissioner Chick was not impartial, merely that he understood his involvement may have "the appearance of impropriety." Even had Commissioner Chick and Nivens shared a significantly closer relationship, it would not prevent the application of the Rule of Necessity. In Barker, the commissioner who invoked the Rule of Necessity to break a tie had previously represented one of the parties as their lawyer. Barker, 752 S.W.2d at 439. In Jennings, the commissioner who initially recused himself because he was a former partner in the law firm representing one of the parties, properly invoked the Rule of Necessity and participated in the final award. 196 S.W.3d at 556 n. 8. The same was discussed in Stonecipher v. Poplar Bluff R1 School District, 205 S.W.3d 326, 328, 333 (Mo. App. S.D. 2006), although ultimately the court declined to resolve the question and instead reversed ...

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