Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This amendment clarifies the requirements
for filing applications for review, answers, and briefs.
(1) Review-Appeal. Any interested party in a
contested case may appeal from a final award, order, or decision made by an
administrative law judge of the Division of Workers' Compensation by making an
application for review within twenty (20) days from the date of the award,
order, or decision with the commission as provided by section
287.480,
RSMo. A form to be used in making an application for review has been
promulgated by the commission and is available upon request. The applicant
(known as petitioner) need not use the promulgated form, provided the
application sets forth information in regard to the case and award which is
sought to be reviewed and the reasons for making the application for a review
of the evidence. An application for review shall be signed by the petitioner or
the petitioner's attorney. An application filed on behalf of a corporation
shall be signed by an attorney licensed in Missouri.
(2) Additional Evidence.
(A) After an application for review has been
filed with the commission, any interested party may file a motion to submit
additional evidence to the commission. The hearing of additional evidence by
the commission shall not be granted except upon the ground of newly discovered
evidence which with reasonable diligence could not have been produced at the
hearing before the administrative law judge. The motion to submit additional
evidence shall set out specifically and in detail-
1. The nature and substance of the newly
discovered evidence;
2. Names of
witnesses to be produced;
3. Nature
of the exhibits to be introduced;
4. Full and accurate statement of the reason
the testimony or exhibits reasonably could not have been discovered or produced
at the hearing before the administrative law judge;
5. Newly discovered medical evidence shall be
supported by a medical report signed by the doctor and attached to the
petition, shall contain a synopsis of the doctor's opinion, basis for the
opinion and the reason for not submitting same at the hearing before the
administrative law judge; and
6.
Tender of merely cumulative evidence or additional medical examinations does
not constitute a valid ground for the admission of additional evidence by the
commission.
(B) The
commission shall consider the motion to submit additional evidence and any
answer of opposing parties without oral argument of the parties and enter an
order either granting or denying the motion. If the motion is granted, the
opposing party(ies) shall be permitted to present rebuttal evidence. As a
matter of policy, the commission is opposed to the submission of additional
evidence except where it furthers the interests of justice. Therefore, all
available evidence shall be introduced at the hearing before the administrative
law judge.
(3)
Applications.
(A) An application for review of
any final award, order, or decision of the administrative law judge shall state
specifically the reason the applicant believes the findings and conclusions of
the administrative law judge on the controlling issues are not properly
supported. It shall not be sufficient merely to state that the decision of the
administrative law judge on any particular issue is not supported by competent
and substantial evidence. The allegations of error in an application for review
are not an opportunity for early briefing, but rather serve to notify the
commission and opposing parties of the nature of the issues that will be
addressed on appeal. Accordingly, an application for review should not extend
beyond a maximum of five (5) pages. The commission may decline to consider any
portion of an application for review that extends beyond this page
limitation.
(4) Answers.
(A) An opposing party (known as the
respondent) may file an answer to the petitioner's application for review,
concisely addressing each of the contentions set forth in the application. The
answer should not extend beyond a maximum of five (5) pages. The commission may
decline to consider any portion of an answer that extends beyond this page
limitation. The answer(s) shall be filed within ten (10) days from the date of
the commission secretary's correspondence acknowledging the filing of the
application for review. The commission shall have discretion to extend the time
for filing an answer.
(5) Briefs.
(A) If the petitioner desires to file a brief
or memorandum of law in support of the application, the petitioner shall so
indicate in the application for review. When briefing is requested, the
commission secretary will provide, via written correspondence to all parties, a
briefing schedule after the transcript is prepared by the division of workers'
compensation. Unless a modified briefing schedule is ordered by the commission,
the petitioner's brief will be due thirty (30) days from the date of the
commission secretary's correspondence establishing the briefing schedule, and
respondent briefs or memoranda of law will be due within fifteen (15) days
after the date of the commission secretary's letter acknowledging the
commission's receipt of the petitioner's brief or memorandum of law. A reply
brief is not required or suggested, but if the petitioner believes it is
necessary to file a reply, it must be filed within ten (10) days of receipt of
the respondent's brief. The commission shall have discretion, after notice to
the parties, to extend or accelerate the briefing schedule.
(B) If the petitioner does not include a
request for a briefing schedule in the application for review and the
respondent desires to file a brief or memorandum of law, that request shall be
included in the answer. If the petitioner has requested a briefing schedule,
but fails to file a timely brief after that, the respondent may file a brief or
memorandum of law within fifteen (15) days from the date the petitioner's brief
was due.
(C) Briefs filed in any
case pending before the commission shall be typewritten and subject to the
following requirements:
1. If submitted
physically-
A. Be on paper of size eight and
one-half inches by eleven inches (8 1/2" Ã- 11"); and
B. Be typed on one (1) side of the paper;
and
2. All briefs
submitted physically, by facsimile transmission, or by electronic means as set
forth on the commission's website shall-
A.
Have a left, right, bottom, and top margin of not less than one inch (1"). Page
numbers may appear in the bottom margin, but no other text may appear in the
margins;
B. Have all pages
consecutively numbered;
C. Use
characters throughout the briefs that are not smaller than thirteen (13) font,
Times New Roman on Microsoft Word, except footnotes may be as small as ten (10)
font; and
D. Be double-spaced,
except for footnotes, block quotes greater than fifty (50) words, the cover, if
any, and certificate of service and signature block.
(D) The brief of the petitioner
shall not exceed thirty (30) pages. A respondent's brief shall not exceed
twenty-five (25) pages. A reply brief shall not exceed eight (8) pages. A cover
sheet or index to any brief need not be counted in the page limitation, but any
attachments, exhibits, or appendices to any brief will be considered as pages
of the brief and subject to the page limitation for the entire brief. (Parties
should note that the commission file contains the award and decision of the
administrative law judge along with a complete transcript of the record. It is
unnecessary to attach any of these materials to any brief. Any other attachment
would not be of record and not subject to consideration, which is limited to
the record or transcript of the hearing.)
(E) The petitioner's brief shall contain a fair and
concise statement of facts without argument, with citations to the pertinent
pages of the transcript supporting each factual assertion. The respondent's
brief may supplement the statement of facts if necessary. No jurisdictional
statement is necessary unless jurisdiction is at issue. (Parties are advised
that recitations of basic legal principles of workers' compensation law are not
necessary and are discouraged.) The briefs shall identify the issues in dispute
and address those issues only, state concisely the factual or legal support for
the party's positions, and contain a conclusion in detail as to the decision,
award, or action requested from the com-mission. Upon its own motion, or upon
motion by any interested party, the commission may, in its discretion, decline
to consider any brief or any portion of a brief that is not filed in accordance
with these rules or where it appears the party has engaged in any dilatory
practice or other conduct prejudicial to the efficient and timely adjudication
of the appeal.
(F) Extraordinary
Briefing Requests.
1. Parties requesting an
extension of time to file a brief, an extension of page length, or any other
extraordinary request pertaining to briefing, may make such request to the
commission in writing prior to the last date for filing their brief, such
request to include the following:
A. The
number of additional days, pages, or other specific relief requested;
B. A certification that a copy of the request
has been served to all opposing parties upon the same date and time, and via
the same means, that such request is sent to the commission;
C. An indication whether the requesting party
has conferred with opposing parties regarding the request, and if not, why
not;
D. An indication whether
opposing parties have registered any objection to the request; and
E. The specific facts or circumstances
motivating the request.
2. The commission may decline to consider a
party's request for an extension of time to file a brief, an extension of page
length, or any other extraordinary request pertaining to briefing where the
party's request fails to comply with the foregoing or where it appears the
party has engaged in any dilatory practice, or other conduct prejudicial to the
efficient and timely adjudication of the appeal.
(6) Oral Argument. Oral argument may be
granted by the commission; provided, the request to present oral argument is
made in the application for review or in the answer and includes the reason the
argument cannot be made adequately by brief. Untimely requests for leave to
present oral argument shall not be entertained nor will any request to present
oral argument in lieu of a brief be allowed.
(7) Hardship Setting. If the claimant for
workers' compensation requests a hardship setting before the commission, an
accelerated briefing schedule may be set and oral argument may be denied. The
request for a hardship setting shall be made in the application for review, in
an answer to the application or in a separate motion to the commission and
shall set forth the reason expedited review is necessary. The commission shall
have discretion to designate a cause as a hardship case.
*Original authority: 286.060, RSMo 1945, amended 1947,
1980, 1995.