Dickemann v. Costco Wholesale Corp.

ANDREW DICKEMANN, Appellant, v. COSTCO WHOLESALE CORPORATION, Respondent.

No. ED105266

Missouri Court of Appeals Eastern District DIVISION FIVE

May 23, 2017

Appeal from the Labor and Industrial Relations Commission

Introduction

Andrew Dickemann ("Employee") appeals from the Labor and Industrial Relations Commission's ("Commission") order denying his and Costco Wholesale Corporation's ("Employer") joint motion to settle and commute his permanent disability award into a lump sum. In his sole point on appeal, Employee argues that the Commission misapplied the law and exceeded its authority when it denied the joint motion because it was required to approve the parties' joint motion under § 287.390.1. We affirm.

Factual and Procedural Background

In July 2010, Employee was injured during the course and scope of his employment with Employer. Employee filed a claim for compensation against Employer, and, in March 2014, an Administrative Law Judge ("ALJ") of the Missouri Division of Workers' Compensation (the "Division") awarded Employee weekly permanent total disability benefits of $799.11. Neither party filed an application for review, and the award became final in April 2014.

In November 2016, Employee and Employer voluntarily entered into a "Stipulation for Voluntary Settlement and Agreement to Commute the Award" (the "Joint Agreement"). The parties filed the Joint Agreement with the Commission. As part of the Joint Agreement, Employer agreed to pay Employee a lump sum of $400,000 to fully and finally settle Employee's award for lifetime disability benefits. In the Joint Agreement, Employee acknowledged that he understood his rights and benefits, that the Joint Agreement was not the result of undue influence or fraud, and that he voluntarily agreed to accept the terms of the Joint Agreement.

On January 5, 2017, the Commission issued an order denying its approval of the Joint Agreement without prejudice. The Commission found that the Joint Agreement did not contain allegations that, if true, would support commutation of the permanent disability award under § 287.530.¹ The Commission further found that it did not have authority to approve the Joint Agreement under § 287.390 because the parties did not identify a dispute regarding the availability of award modifications under sections 287.241, 287.470, or 287.530, and the parties did not explain how the Joint Agreement was in accordance with Employee's rights under Chapter 287. This appeal follows.

Standard of Review

Our review of this case is governed by the provisions of § 288.210. Clement v. Kelly Services, Inc., 277 S.W.3d 327, 329 (Mo. App. E.D. 2009). We may modify, reverse, remand for rehearing, or set aside the decision of the Commission on the following grounds:

(1) That the commission acted without or in excess of its powers;

(2) That the decision was procured by fraud;(3) That the facts found by the commission do not support the award; or

(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Grubbs v. Treas. of Missouri, 298 S.W.3d 907, 910 (Mo. App. E.D. 2009) (quoting § 288.210).

The findings of the Commission as to the facts, if supported by competent and substantial evidence and made without fraud, are conclusive. Id. However, we are not bound by the Commission's conclusions of law or its application of law to the facts, and questions of law are reviewed independently. Id.

Furthermore, "[s]tatutory construction is a question of law, which we review de novo." New Madrid County v. St. John Levee & Drainage Dist., 436 S.W.3d 573, 573-74 (Mo. App. S.D. 2013) (citing Bantle v. Dwyer, 195 S.W.3d 428, 431 (Mo. App. S.D. 2006)).

Discussion

Employee's sole point of error is that the Commission exceeded its authority and misapplied the law when it denied the Joint Agreement. Specifically, Employee argues that under the precedent set forth in Nance v. Maxon Elec. Inc., 395 S.W.3d 527 (Mo. App. W.D. 2012) ("Nance I") and Hinkle v. A.B. Dick Co., 435 S.W.3d 685 (Mo. App. W.D. 2014), the Commission was required to approve the Joint Agreement because it was entered into voluntarily by both parties and met the requirements § 287.390.1.² Employer does not dispute Employee's claim of error, and has adopted Employee's brief as its own.

Before discussing Nance I and its progeny, it is important to provide some background information. In the Workers' Compensation Law, sections 287.390 and 287.530 govern compromise settlements and commutations, respectively.

Section 287.390.1, relating to compromise settlements, reads:

"Parties to claims hereunder may enter into voluntary agreements in settlement thereof, but no agreement . . . [shall be] valid until approved by an administrative law judge or the commission . . . . An administrative law judge, or the commission, shall approve a settlement agreement as valid and enforceable as long as the settlement is not the result of undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement. (Emphasis added).

Section 287.530.1, relating to commuting compensation, reads:

The compensation provided in this chapter may be commuted by the division or the commission and redeemed by the payment in whole or in part, by the employer, of a lump sum . . . equal to the commutable value of the future installments which may be due under this chapter, taking account of life contingencies, the payment to be commuted at its present value upon application of either party, with due notice to the other, if it appears that the commutation will be for the best interests of the employee or the dependents of the deceased employee, or that it will avoid undue expense or undue hardship to either party, or [the employee is about to remove from the United States, or the employer has disposed of the greater part of its business]. (Emphasis added).

Section 287.530.2 directs the Commission, when determining whether a commutation is in the best interest of the employee, to "constantly bear in mind that it is the intention of this chapter that the compensation payments are in lieu of wages and are to be received by the injuredemployee or his dependents in the same manner in which wages are ordinarily paid."³ (Emphasis added). Section 287.530.2 further states that "commutation is a departure from the normal method of payment and is to be allowed only when it clearly appears that some unusual circumstances warrant such a departure." (Emphasis added).

In Nance I, the employee and his past employer entered into a joint agreement to commute the permanent total disability payments an ALJ had previously awarded him. Nance I, 395 S.W.3d at 531. A medical expert's affidavit was attached to the joint agreement indicating that the employee had a life expectancy of thirteen years. Id. Pursuant to the joint agreement, the employer agreed to pay the employee a lump sum equal to twenty-four years' worth of his weekly benefits, not reduced to present value. Id. On the afternoon the employer sent the joint agreement to the Commission for its approval, the employee died for reasons unrelated to his work injury. Id. Upon learning of the employee's death, the employer sought to withdraw the joint agreement arguing that, under Chapter 287, there were no longer any benefits due to the employee or his survivors. Id. The employee's widow contested the employer's attempt to withdraw from the joint agreement. Id. The Commission entered an order denying the joint agreement because it determined that no future payments were due because of the employee's death. Id. at 531-32.

On appeal, the Western District reversed the Commission's order. Id. at 539. The Western District held that although the statute which originally authorized the parties' joint agreement was § 287.530, which governs commutations, the parties had a right to settle their"claim"⁴ under § 287.390. Id. at 535-36. The Court held that § 287.530's requirements applied only to "contested" commutations. Id. As a result, the Court held that when the parties have reached a settlement agreement, the Commission must review the agreement only under § 287.390. Id. at 536-37.

Under § 287.390.1, the Court determined that the Commission was required to approve the joint agreement because the last sentence of § 287.390.1 states that the Commission "shall approve a settlement as valid and enforceable as long as the settlement is not the result of undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement." Id. at 534. The Court noted that neither party had argued the joint agreement was the result of fraud or undue influence or that the employee had been coerced into accepting the terms of the agreement. Id. at 538. The Court determined that the employee evidenced that he understood his rights and benefits by signing the joint agreement. Id. Therefore, the Court concluded that the Commission was required to accept the joint agreement, and it remanded the case to the Commission in order for it to approve the joint agreement. Id. at 539.

In Nance v. Maxon Elec. Inc. ("Nance II"), the employer appealed the Commission's approval of the joint agreement which the Commission had entered pursuant to the Court's order in Nance I. 425 S.W.3d 926, 929 (Mo. App. W.D. 2014). The Western District again held that the Commission was required to approve the joint agreement under § 287.390.1 as long it was not made as a result of undue influence or fraud, the employee understood his rights and benefits, and he voluntarily agreed to accept the terms of the agreement. Id. at 931. Accordingly, becauseof the court's prior determinations in Nance I, the Western District affirmed the Commission's approval of the joint agreement. Id. at 932.

Appellant also cites to Hinkle v. A.B. Dick Co., in which Mrs. Hinkle was awarded a weekly $478 death benefit after her husband...