author: LISA WHITE HARDWICK, Judge. JAMES M. SMART, JR., Judge,

text:
    Bonita MILLER, Appellant, v. U.S. AIRWAYS GROUP, INC., Respondent.
    No. WD 70840.
    Missouri Court of Appeals, Western District.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Kristi L. Pittman, Esq., Liberty, MO, for appellant.
    Eric T. Lanham, Esq., and Douglas M. Greenwald, Esq., Kansas City, KS, for respondent.
    BEFORE DIVISION ONE: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   LISA WHITE HARDWICK, Judge.

Bonita Miller appeals from a final award denying her workers’ compensation claim for repetitive trauma injuries from carpal tunnel syndrome that developed as a result of her employment with U.S. Airways Group, Inc. (“Employer”). The Labor and Industrial Relations Commission (“Commission”) denied relief because Miller had an earlier claim pending against the Employer for injuries related to carpal tunnel, and the Commission determined that the repetitive trauma was not a “new and distinct injury.” Miller contends the Commission’s decision is not supported by competent and substantial evidence in the record. For reasons explained herein, we find no error and affirm the final award.

Factual and PROCEDURAL History

Miller began working for the Employer in 1984. Since May 1991, she has worked full-time as a customer service agent at Kansas City International Airport, where her primary duty is to check-in airline passengers. Her work involves repetitive activities with frequent use of her hands and arms, such as keyboarding, tearing off baggage claims and boarding passes from the computer terminals, and lifting luggage.

In 2002, Miller began to experience pain in her upper extremities and was diagnosed by her physician with early signs of carpal tunnel syndrome. Two years later, the symptoms intensified with numbness, pain, and tingling in her hands. In June 2004, Miller requested medical treatment from the Employer because she believed her condition was work-related. The Employer filed a “Report of Injury” with the Division of Workers’ Compensation and provided treatment through its insurer, AIG. Miller was diagnosed with mild bilateral carpal tunnel syndrome. She underwent five weeks of physical therapy, took prescribed medication for several weeks, and wore splints at night. In October 2004, Miller was' released from treatment with no limitations on her ability to work.

Miller continued to perform her work duties without significant pain or difficulty until late 2006 and early 2007, when she worked substantial overtime due to a heavy holiday schedule. She experienced increasing discomfort in her hands, with sharp pains extending into her forearms causing an “electrical shock” sensation. After receiving notice of these symptoms on January 29, 2007, the Employer filed a second “Report of Injury” and referred the matter to AIG. The insurer declined to approve further treatment for Miller.

On October 26, 2007, Miller filed two separate workers’ compensation claims seeking “temporary total and permanent disability” benefits from the Employer for injuries related to carpal tunnel syndrome. The first claim, No. 04-054594, alleged that Miller suffered “[repetitive trauma through 6/4/04” (“2004 claim”). The second claim, No. 07-070265, alleged that Miller suffered “[r]epetitive trauma through 1/29/07” (“2007 claim”). Both claims gave an identical description of Miller’s alleged injury:

During the course and scope of employment as a customer service representative, Employee suffered repetitive trauma to her bilateral upper extremities due to lifting luggage and by keyboarding resulting in bilateral carpal tunnel syndrome. Employee requires medical care, will suffer temporary total and permanent disability.

Miller also filed a third workers’ compensation claim against the Employer for injuries related to carpal tunnel syndrome. The third claim, No. 05-144695, alleged that Miller suffered repetitive trauma through August 28, 2005. The three claims proceeded independently and were not consolidated.

In June 2008, an Administrative Law Judge (“ALJ”) held a hearing on the 2007 claim. Miller testified that she first reported symptoms of carpal tunnel syndrome to her employer in 2004. She underwent treatment and took ibuprofen as necessary after she was released from treatment. When her symptoms worsened in late 2006, she again reported them to the Employer in early 2007.

At the hearing, the Employer admitted that Miller sustained carpal tunnel syndrome in the course of her employment but denied that she sustained the injury in 2007. The Employer presented independent medical evaluations of Miller conducted by two orthopedic specialists, Dr. Anne Rosenthal and Dr. James Stuckmeyer. Both physicians noted that Miller’s diagnosis of carpal tunnel syndrome dated back to 2002. They concluded that Miller’s condition was occupationally related to her hand intensive, repetitive job duties during the course of her twenty-five year employment with U.S. Airways.

Following the hearing, the ALJ issued a decision denying the 2007 claim because it alleged the same injury, bilateral carpal tunnel syndrome, for which Miller received treatment in 2004 and for which she still had a 2004 claim pending. The ALJ also determined that the 2007 claim was time-barred by recent amendments to Section 287.063.1, which affected the accrual dates under the statute of limitations in Section 287.430.

On review, the Commission affirmed the denial of compensation on the 2007 claim. The Commission found that Miller did not sustain a new and distinct injury in 2007 because her repetitive trauma stemmed from the same bilateral carpal tunnel syndrome that she was treated for in 2004. The Commission’s final award incorporated the ALJ’s decision to the extent that it was consistent with this finding; however, the Commission declined to adopt or incorporate the ALJ’s conclusions regarding the statute of limitations. Miller appeals the final award.

Standard of Review

“Where the Labor and Industrial Relations Commission’s award attaches and incorporates the ALJ’s award and decision, this court considers the findings and conclusions of the Commission as including the ALJ’s award.” Cochran v. Indus. Fuels & Res., Inc., 995 S.W.2d 489, 492 (Mo. App.1999). We review only questions of law and may modify, reverse, remand for rehearing, or set aside the award when the Commission acted without or beyond its power, the award was procured by fraud, the facts do not support the award, or the award is not supported by sufficient competent evidence in the record. § 287.495.1.

“We examine the whole record to determine the sufficiency of the evidence.” Marmon v. City of Columbia, 129 S.W.3d 921, 924 (Mo.App.2004). “An award of workers’ compensation benefits ‘that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.’ ” Kerns v. Midwest Conveyor, 126 S.W.3d 445, 452 (Mo.App.2004) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). A decision is against the overwhelming weight of the evidence if we are left with a firm impression that the decision was incorrect. Id. “We will find an award by the Commission to be contrary to the overwhelming weight of the evidence only in rare cases.” Vincent v. Mo. State Treasurer, 287 S.W.3d 715, 718 (Mo.App.2009).

Analysis

Miller brings two points on appeal. First, she contends the Commission’s determination that she did not suffer a new injury in 2007 is unsupported by competent and substantial evidence in the record. Second, Miller asserts the Commission erred in failing to determine when her 2007 claim accrued for purposes of applying the statute of limitations. Because we find no error in the Commission’s determination that Miller did not suffer a new injury in 2007, we need not address Point II.

In denying Miller’s 2007 claim, the Commission adopted the following findings in the ALJ’s decision:

The Employee filed two Claims for Compensation on or about October 26, 2007 for her previously diagnosed bilateral carpal tunnel syndrome, alleging in each claim an identical repetitive trauma injury to bilateral upper extremities, with one alleging a date of accident of occupational disease of a repetitive trauma through 6/04/04 (Injury # 04-054594) and the other alleging a date of accident or occupational disease of repetitive trauma through 1/29/2007 (Injury # 07-070265).
I find the work-related medical condition of ill alleged in the Claim for Compensation, Injury # 07-070265, ... is the same work-related medical condition of ill for which Claimant received medical treatment back in 2004. Undoubtedly, her symptoms have become more severe over the years, but I find that it is the same disease, same diagnosis, and same medical condition of ill — -bilateral carpal tunnel syndrome. The change in her condition is one of degree not one of kind or type ... There has only been a worsening of Claimant’s injury not a new or different injury.

The Commission’s finding that Miller did not suffer a new injury in 2007 is supported by substantial evidence in the record. The Employer presented medical records to establish that Miller’s carpal tunnel syndrome dated back to at least 2002 and had grown progressively worse. Dr. James Stuckmeyer opined:

I feel within reasonable medical certainty that as a direct, proximate and prevailing factor of the repetitive nature of the occupational duties required upon Ms. Miller throughout 25 years of employment with U.S. Airways that she has developed progressively worsening neurological symptoms in both the right and left hand requiring medical treatment.
The medical records would reflect that dating back to 2002 she was assessed by Dr. Sachen as having very early carpal tunnel syndrome. Obviously, the development of carpal tunnel syndrome is usually related to repetitive activities, and Ms. Miller’s occupation would surely fit into this classification. This would represent a series of repetitive overuse type syndrome bilaterally.

Similarly, Dr. Anne Rosenthal noted Miller’s history of complaints and treatment for carpal tunnel syndrome between 2002 and 2008. Rosenthal concluded that Miller’s condition resulted from the repetitive nature of her job duties throughout her long-term employment:

[Miller’s] occupation exposure is the prevailing factor in causing her bilateral carpal tunnel syndrome. She has a hand intense repetitive job, works 40 hours per week, has been working for U.S. Airways for 25 years, and has no medical problems or outside activities that she does with enough intensity that would be the prevailing factor. Again, the bilateral carpal tunnel syndrome is vocationally related.

The worsening of Miller’s symptoms in late 2006 or early 2007 did not establish a new injury of repetitive trauma. The medical evidence, as well as Miller’s allegations on her three workers’ compensation claim forms, clearly established that the repetitive trauma was a continuing symptom of her carpal tunnel syndrome that was originally diagnosed in 2002 and treated in 2004. Because Miller’s 2007 claim alleged injuries resulting from the same occupational disease alleged in her pending 2004 claim, she was not entitled to pursue duplicative claims. We find no error in the Commission’s denial of the 2007 claim on this basis.

We emphasize that, although the Commission’s final award denominates its disposition as a “denial” of Miller’s 2007 claim, we read the Commission’s decision as dismissing the 2007 claim because it was duplicative of other claims Miller then had pending in the Division of Workers’ Compensation. As we have noted, the Commission’s final award specifically states that the limitations issues raised by Miller’s multiple claims will be addressed in further proceedings on her 2004 claim. Because it merely held Miller’s 2007 claim to be duplicative of the 2004 claim, the Commission’s final award on the 2007 claim could not have any preclusive effect on the substance of Miller’s underlying workers’ compensation claim, or on any defenses available to the Employer; it merely deferred the litigation of those issues to Miller’s 2004 claim. Cf. Golden Valley Disposal, LLC v. Jenkins Diesel Power, Inc., 183 S.W.3d 635, 642 (Mo.App.2006) (while pendency of another civil action may justify dismissal of later-filed action under abatement or “pending action” doctrine, “[t]he pendency of another action between the same parties for the same cause in this state ... is only a ground for dismissal of the second action without prejudice”); In re Marriage of Gormley, 813 S.W.2d 108, 112 (Mo.App.1991) (same).

Conclusion

The Commission’s final award is affirmed.

Judge AHUJA concurs.

Judge SMART concurs in separate concurring opinion.

JAMES M. SMART, JR., Judge,

concurring.

The Commission concluded that the evidence shows that Bonita Miller’s carpal tunnel disease is the same carpal tunnel disease she had in 2004. To the extent that is a factual conclusion, I cannot disagree. I am not sure that the Commission should be understood as ruling as a matter of law that there was only one “injury” within the meaning of section 287.063. But even assuming that the Commission so decided, there was no legal ruling on the statute of limitations issue (which the ALJ found dispositive). The Commission was aware that Ms. Miller had two other claim forms pending in the Division seeking the same relief. Therefore, I would have expected the Commission to either consolidate all the claims seeking the same relief, or to dismiss as duplicative all the claims except the one the Commission intended to address on the merits.

Ms. Miller was informed in 2002 that she had early mild carpal tunnel. The condition did not bother her until June of 2004. At that time, she sought and obtained treatment from her employer. She did not have to file a formal claim to prove her right to treatment. The therapy and suggestions she received on managing the carpal tunnel were helpful, so it was not until January of 2007 that she asked for further treatment. At that point, her employer’s workers’ compensation insurer denied treatment on the ground that she has had mild carpal tunnel syndrome for several years and therefore was barred from receiving further treatment by the two year statute of limitations. The ALJ agreed with the employer. She appealed to the Commission, which issued the unusual ruling we consider at this time.

Because my colleagues are convinced that the “denial” of the claim here was the functional equivalent of a dismissal without prejudice as to Miller’s other claims, I concur in affirming rather than arguing for dismissal of the appeal on jurisdictional grounds, though I would have thought the Commission would have termed its ruling a “dismissal” on grounds the claim was duplicative. Had the Commission done so, the claimant would not have feared that she needed to appeal, and we would not find ourselves “affirming” the Commission when otherwise we arguably would be dismissing the appeal for lack of a final award. See, e.g., Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397 (Mo.App.1996).

All of that aside, however, I feel compelled to write separately to offer some thoughts and observations, some of which will be obvious obiter dictum, on matters that were addressed in the ALJ decision and will be raised again in the further processing of Ms. Miller’s claim for medical treatment.

All the claimant seeks is treatment under 287.140 so she can keep working. She has not been asking for a disability rating (although it may get to that if her treatment keeps getting delayed). The ALJ, in fully addressing the statute of limitations issue in her decision, misconstrued (in my view) the effect of the 2005 amendment to 287.630 (which deals with the accrual of claims for occupational disease) causing the ALJ to conclude that all the claims filed by the claimant are barred. In my view, the ALJ’s attempt to apply the General Assembly’s cloudy will as to the accrual of occupational disease claims, together with the current forms and practices in the Division, created a tangle of confusion, both actual and semantical.

The Commission attempted to make a first step toward unraveling the tangle, but unfortunately did not consolidate all three claims (the first two of which were filed simultaneously anyway) and address the issues in question.

Claims Confusion

This is an astounding case of “claims confusion” arising in part from the fact that the Division of Workers’ Compensation attempts to process claims for occupational disease in the same way it processes claims for accidental injury. Here we have multiple claim forms bearing separate “injury” numbers, all filed at the same time, and all directed to one thing: obtaining medical treatment for Ms. Miller for her current condition of carpal tunnel. Ms. Miller’s counsel, being aware of the prior “reports of injury” filed by the employer, filed two claims, one citing exposure in 2004 and one citing exposure in 2007, corresponding to the “reports of injury” filed by the employer. Later in the claims adjudication process, after the statute of limitations issue was pressed by the employer based on the 2005 revisions to section 287.063.3, Ms. Miller’s counsel, out of an abundance of caution, filed a third claim, reciting the date of exposure as the period leading up to the effective date of the 2005 amendments. We thus have three claim forms for what is only one claim.

The Division uses the same forms for both accident claims and occupational disease claims. The employer’s “report of injury” form is clearly designed for the reporting of an injury by way of “accident” because it contemplates that the injury occurred on a single date. The formal claim used by the Division, while purporting to make some accommodation to occupational injury claims, is poorly adapted, especially for claims involving slowly developing occupational disease, such as repetitive motion claims. The formal claim form provides a box in which to insert “date of accident/occupational disease.” Again, the form fails to recognize that many occupational disease conditions do not have a “date.” Unlike an injury due to accident, an occupational disease develops over a period of time and is not caused by an event on a single day. See Garrone v. Treasurer of State of Mo., 157 S.W.3d 237, 243 (Mo.App. 2004). The claim form does not ask for “date of diagnosis of occupational disease,” or “date that you observed symptoms caused by occupational disease” or “date that your occupational disease required treatment,” or “date that you first missed work due to your occupational disease.”

Lawyers for claimants are required to guess at how to complete the claim in response to the inquiry, “date of occupational diseasé.” Some practitioners suggest that in the pertinent box they should list “dates of exposure,” possibly with a “culminating date.” That culminating date, it is thought, could be “the last date of exposure.” See id.; II Mo. Workers’ Compensation Law, section 11.4 (Mo. Bar 3rd ed.2004).

Common sense would indicate, of course, that dates of exposure do not correspond to the date a condition was recognized as having reached the point at which it is appropriate to file a claim. Nor does the period of time during which an underlying condition develops necessarily correspond to the date that one has any practical reason to file a claim. Various diseases have different latencies, and those latencies can differ from person to person. Also, the mild nature of some developing occupational diseases can contribute to confusion when it comes to determining the appropriate time to file a claim for such a condition, and the proper time to consider the applicable period of limitations to begin to run. As to slowly developing conditions arising from repetitive trauma, therefore, the “date of occupational disease” box on the claim is generally impossible to answer in a coherent way.

The Commission found that the repetitive trauma condition Miller was experiencing in January 2007 was the same “injury’ that she had in June 2004. Clearly, it was the same underlying condition of carpal tunnel syndrome, but Miller argues that it was a different “injury” (as a legal, even if not a factual concept) for purposes of determining the limitations period.

Whether Miller’s carpal tunnel condition in 2007 is a new carpal tunnel condition or the same old carpal tunnel condition is a question of fact for the Commission. See Rupard v. Kiesendahl, 114 S.W.3d 389, 394 (Mo.App.2003). The Commission says that there “has only been a worsening of [her] injury, not a new or different injury ” (emphasis added). The Commission here necessarily equates “injury” with Miller’s underlying carpal tunnel disease itself. At the same time, however, the Commission also uses the word “injury” as meaning “claim,” as in “claim form.” Thus, the Commission ends up saying to Ms. Miller that “your injuries are really one injury” when it means “your claim forms are really about only one occupational disease.”

Part of Miller’s argument is an attack on the factual conclusion that it was the same carpal tunnel in 2007 as 2004; but partly it is also an argument based on the concept of accrual of an “injury” (in the sense of when a claim has matured and may be filed). She points out that she never missed any work in 2004, continued capably to do her job, and suffered no impact on her earning capacity. She points out that until 2007 Miller never had any occasion to file a formal claim. She made, in effect, an informal claim in 2004 in requesting medical treatment for her carpal tunnel condition.

Claimant Miller argues that the Commission should have decided either (1) that the 2007 condition was a new “injury” (thus avoiding any statute of limitations analysis altogether), or (2) determining at some point that the statute of limitations does not bar her claim for her 2007 condition because the earlier manifestations of her condition simply did not trigger the accrual of a claim for purposes of the period of limitations.

Section 287.063.3 does not define “injury” for purposes of that section (dealing with the accrual of claims). No court has yet defined it either. The meaning of the word in that particular statutory context is a question of law, of course. The claimant says that she had no practical reason to file a formal claim until she was denied treatment after her late 2006 and early 2007 activities caused an increase in the symptoms of her condition. In 2004, she did the only practical thing: she reported her condition to the employer and asked for permission to see a physician and obtain treatment. The Commission, she says, should have recognized and specifically ruled that a duty to file a formal claim for “injury” cannot acerue until a worker actually has some practical reason to file a formal claim. The Commission should therefore, she says, have specified that her claim for her 2007 condition is not barred, and that she is entitled to medical care. Ms. Miller is asking whether it can be right, as a matter of law, to say that the General Assembly intended to entirely release the employer from any duty of providing treatment for the symptoms of a second flare-up three years after a first flare-up unless the employee has, in the meantime, filed a claim, seeking neither treatment nor compensation nor anything else, but seeking only to be on record, hoping the claim will be held in abeyance indefinitely by the Division until there is a reason to seek additional medical treatment or compensation for disability.

Section 287.063

The parties here, thinking we might review the Commission’s ruling on the legal merits, fully briefed their views on the statute of limitations issue. The employer’s position is that recent amendments to section 287.063.3 dictate that there can be only a two-year window in which to file a claim as to any occupational disease condition — not only as to a claim for disability compensation, but also as to a claim for treatment of a flare-up under section 287.140. The employer argues that the two-year window begins when the work-produced disease is reasonably discoverable, even if it is so latent and asymptomatic that there is no reason to file a claim. If the symptoms get worse or the work interference occurs after that two-year period, it is simply too late and too bad. The employer argues (based on the 2005 revisions of section 287.063) that the two-year limitations period (pursuant to section 287.430) began to run years ago and was expired well before the claimant filed her formal claims.

In order to understand the employer’s argument we must note the pre-2005 language of subsection 3 of 287.063:

The statute of limitations referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that a compensable injury has been sustained, except that in cases of loss of hearing due to industrial noise said limitation shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197.

We compare that language with the language after the 2005 amendment:

The statute of limitations referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, except that in cases of loss of hearing due to industrial noise said limitations period shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197.

In this comparison of these two subsections, we see that the phrase “compensable injury has been sustained” has been replaced by the phrase “injury has been sustained related to such exposure.” No case or other authority has informed us as to the reason for the amendment of the statute. The statute clearly has long served the obvious purpose of protecting the opportunity of workers with occupational diseases to file claims. One way the statute does this is by forestalling the running of the period of limitations until an occupational disease is “reasonably discoverable and apparent.” Accordingly, if a worker develops a lung condition that usually develops slowly, and the worker does not know for many years that he or she has the condition, the worker will not be foreclosed from asserting a claim until two years after it is “reasonably discoverable and apparent.” Another way the statute purported to protect workers was to define accrual as occurring only when an “injury/disease” became “.compensable.” That phrase “compensable injury” was ambiguous, however. The phrase was sometimes interpreted by the courts to mean that the limitations period did not begin to run until the employee suffered significant inability to work, or was medically advised to cease working, or suffered decreased earning capacity. See, e.g., Rupard, 114 S.W.3d at 394. Thus, according to that theory of what the phrase meant, the claim did not even accrue for limitations purposes, in many cases, until there was substantial disability.

This interpretation of “compensable injury” obviously allowed a gap to be created (at least in some cases) between the earliest date one would ordinarily expect to be able to file a claim (say, the date the worker, after experiencing symptoms, sought treatment and received a diagnosis for a disease) and the date the elaim legally accrued (because the claim could not legally accrue under court interpretations until the condition involved significant interference with work or with earning capacity). Accordingly, claimants could be aware of, and suffering symptoms of, their occupational diseases long before the accrual statute specified that their claim had accrued. Possibly, in 2005, the General Assembly wished to close that gap. Perhaps the General Assembly wanted the date of a worker’s reasonable responsibility to file a claim to correspond chronologically with the date of the legal accrual of the claim, in accord with the normal, if not the universal, objective.

Ordinarily, in filing a claim for occupational disease, one need allege only an “injury” by occupational disease arising out of and in the course of the employment. See section 287.067.1. In ordinary, everyday communication, we might describe an incident of minor trauma, such as a bruise, as an “injury.” The blood vessels are a physical structure of the body, so the blow causing the bruise can be described as “violence to a physical structure of the body.” But the Division would have no realistic authority to issue any directives to an employer in regard to such bruise because there would be no need for medical treatment; much less would a disability rating be applicable to this mishap. It is common sense that an “injury” must be an event of sufficient measure of physical consequence to the body and its structures so as to reasonably be subject to the authority of the Division, at least arguably. It must be something as to which the Division would have authority to act. And a claim, therefore, must plead an “injury” in that sense. Hence, section 287.430, the general statute of limitations, states that generally a claim must be filed with the Division “within two years after the date of injury[.r

In other contexts, the reference to an injury being “compensable” also may be considered simply a short-hand way of referring to the direct relationship with the employment. In 2005, if the General Assembly had wished to avoid any confusion arising from use of the word “compensa-ble,” or had wished, as hypothetically suggested above, simply to bring the language of section 287.068.3 into conformity with the terminology of 287.430, the General Assembly might have believed it could do that by eliminating the word “compen-sable” as an adjective modifying “injury,” while substituting (for extra clarity) in its stead the phrase, “related to such exposure.”

The employer here suggests that the ■ amendment was an attempt by the General Assembly to restrict the previously established right to benefits in the case of a slowly developing occupational disease. Under this theory, if a worker learns from visiting a healthcare provider that she has early, asymptomatic carpal tunnel syndrome, and if the worker has good reason to believe the condition was caused by her employment, the limitations period begins to run at that time, even though it is not clear why one would then file a claim because the condition remains asymptomatic and does not interfere with work in any way. Under that theory, if the 2005 amendments are to be understood as suggested by the employer and are retroactive, Miller’s request for treatment in 2004 for carpal tunnel possibly was already barred by the statute of limitations before it ever became symptomatic (because in April of 2002, as a result of nerve tests for neck pain, she was incidentally informed of “very early mild” asymptomatic carpal tunnel in her left wrist).

To support further its view that the General Assembly intended to substantially restrict opportunities to file claims, the employer also points to the language of section 287.800, which, since 2005, prescribes a “strict” construction of the provisions of the chapter. The employer is arguing that this would mean that “injury” would be strictly construed for limitations purposes so that once a condition of any kind has been reasonably identified, the limitations period will be deemed to have commenced, even if the claimant reasonably believes the condition will quickly improve and even if one believes it might be ten years or more before there is any impact on earning capacity or work performance. Under this interpretation, and if this is in fact the law, then the two-year statute of limitations will bar the occupational disease claims of the conscientious workers who keep working and attempt to “work through” their condition as long as possible before asking for any compensation or even for medical attention.

There is, within the statutory framework, a discernable principle that claimants should be allowed a reasonable opportunity to file a claim without being foreclosed by the statute of limitations. That was, of course, one of the original and longstanding purposes of section 287.063.3. Whether one believes that remains a purpose of the current section 287.063.3 as to repetitive motion claims depends on whether one believes that the General Assembly in 2005 wished to essentially eliminate slowly developing repetitive motion claims from the workers’ compensation scheme altogether.

Miller’s argument would suggest that the General Assembly’s members surely would understand that an “injury” is a work-connected bodily condition for which a worker is entitled to file a claim and seek some compensation or relief under the statutes. Miller’s argument is consistent with the notion that the word “injury” is a word that, for purposes of the corn-mencement of the limitations period, must carry with it the idea that there is merely some degree (and not necessarily a significant or intolerable degree) of work interference, practical disability or loss of earning capacity. There must be, Miller says, some practical reason or basis for filing a claim before the claim can be considered to have accrued.

If a worker with carpal tunnel desires only minor medical treatment under 287.140, and the employer voluntarily provides it, and the physicians anticipate little future difficulty, should the claim for carpal tunnel be considered to have accrued at that time? That is the exact question lurking here. And if so, one wonders whether the worker’s request for medical treatment for the condition should logically be considered to be also the de facto filing of a claim for limitations purposes? If not, then we can only say that it is ironic that if the employer denies liability and refuses to provide any treatment, the employee will file a formal claim for treatment, thus incidentally obtaining complete .protection for herself from a statute of limitations issue. Accordingly, an employer’s early recalcitrance could turn out to be a fortuitous windfall for the claimant in the long run, preserving a claim that would otherwise be lost.

The claimant argues that, in any event, even if the General Assembly intended the 2005 amendments to be interpreted as the employer says, the Commission should nevertheless have recognized, and stated, that the 2005 amendments must be applied prospectively, and not retrospectively, to her claim, because to do otherwise would entirely deprive her of her previously vested right to file a claim for her condition and to obtain medical treatment for her carpal tunnel, which clearly arose out of and in the course of the exposure through her employment. Claimant argues that if the Commission had ruled the matter on the basis of the retrospective application of the 2005 amendment dealing with the purported change in accrual of occupational injuries, we would be required to consider the possible impact on any vested rights existing prior to the statutory amendment.

The Commission’s decision here amounted to no more than a factual determination that there was one occupational disease condition, but no part of the decision addressed the legal issues of the matter, especially the one found dispositive by the ALJ. As the principal opinion indicates, the decision of the Commission “denying” the formal claim in this context has no preclusive effect as to the positions of the parties on the legal issues. The Division’s compliance with the Commission’s order to consolidate and adjudicate the two remaining claims will ultimately, despite the se-mantical and conceptual difficulties here, resolve Ms. Miller’s claim for treatment under 287.140.

      . We are unable to determine the filing date for the 2005 claim. The parties did not provide a copy of the 2005 claim in the record. The only reference to this claim is in the Commission's Final Award on the 2007 claim, which urged the Division of Workers’ Compensation to consider consolidating the 2004 and 2005 claims for trial.

      . All statutory references are to Revised Statutes of Missouri (2000) as updated by the Cumulative Supplement (2009).

      . The Commission concluded that the statute of limitations issue would be more properly addressed in the resolution of the 2004 claim.

      . See, e.g., the cases cited and discussed at 29 Mo. Practice Series, Workers' Compensation Law and Practice, section 4.18.

      . It might also be helpful if the Division and the Commission used the term “injury” in a univocal way to mean physical injury, and used the term "claim” to mean "claim.”

      . Section 287.020 declares that "except as specified in Chapter 287,” the term "injury” shall not include "occupational disease in any form[.]" Section 287.067.3 then recognizes "an injury due to repetitive motion,” which the cases have regarded as including carpal tunnel syndrome. See, e.g., Miller v. Unitog Co., 965 S.W.2d 373, 373-74 (Mo.App.1998) (carpal tunnel syndrome caused by repetitive motion or trauma is a "known occupational disease”).

      . The claimant makes clear that all she wants here is treatment under 287.140. She does not seek disability compensation, despite the fact that her claim form may also mention such compensation. In any event, the two forms of relief could be considered severable if one were barred by limitations but one were not.

      . The definition of "injury” in 287.020.3(5) is “violence to the physical structures of the body and to the personal property which is used to make up the physical structure of the body [such as artificial limbs.]" Violence, of course, is synonymous with "trauma.”

      . See 287.067.2 and .3 (an “injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability”). See also section 287.140.13(3). In that subsection, the word "noncompensable,” in referring to the possibility that the employer would provide medical services to an injured employee only to find out later that the injury was ‘‘noncom-pensable” (i.e., presumably did not arise out of and in the course of the employment), the employee may be pursued personally by the health care provider for the cost of the treatment provided.

      . Cases looking at "compensable” injury for limitations purposes may have misinterpreted legislative will, and may have appeared to the legislature to be overly generous in the construction of the word "compensable,” as though "compensable injury” comes later in time than an "injury.” For instance, in Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416-17 (Mo.App.1988), the court held that the statute began to run only when the doctor told the worker not to return to work. In Rupard, 114, S.W.3d at 395-96, the court held the limitations period did not begin to run until the worker's pain became intolerable and the need for surgery was manifested. Such a rule gives the employee “every possible advantage in the time required for filing his claim.” Staples v. A.P. Green Fire Brick Co., 307 S.W.2d 457, 461 (Mo. banc 1957).

      . It is not clear how a formal claim would be processed if the condition were asymptomatic, or easily treatable by services the employer voluntarily provides. Miller suggests such a claim would be dismissed. We do not know whether the Division could or does maintain a special type of processing of claims for dormant or latent but diagnosed occupational diseases.

      . The statutes require only that a worker have an "injury” as a condition of filing a claim. It could be argued that the former phrase "compensable injury” in 287.063.3 (dealing with the accrual of claims of occupational disease), was originally intended by the General Assembly to essentially mean the same as a symptomatic "injury” by way of occupational disease — the point at which the condition has reached the point that there is some reason to file a claim. Perhaps the use of the word "compensable" in the statute was an overcompensating, and, in retrospect, ill-advised attempt to keep slowly developing conditions from being barred before they ever became symptomatic. If that were the case, the removal of the term "compensable” does not necessarily take us back to an extreme position the other direction. One wonders why it would not make sense to have an everyday understanding of the concept of the accrual of an injury by way of occupational disease — that being that the claim accrues when there would first be a reason to file the claim.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Amanda SHIRKEY, Personal Representative of the Estate of Stacy K. Shirkey, Appellant, v. GUARANTEE TRUST LIFE INSURANCE COMPANY, Respondent.
    No. WD 71543.
    Missouri Court of Appeals, Western District.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Motion for Rehearing En Banc Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Robert L. Shirkey, Dennis Owens and Jonathan Sternberg, Kansas City, MO, for Appellant.
    Dennis D. Palmer and Anthony W. Bo-nuchi, Kansas City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

This is a vexatious refusal case in which the Circuit Court of Jackson County, the Honorable Jay A. Daugherty presiding, found that the plaintiff failed to meet his burden in that he did not prove that the defendant-insurer lacked a reasonable cause or excuse to deny his claim. We hold that the circuit court’s judgment is not against the weight of the evidence and that the court did not misapply the law. Accordingly, we affirm. Rule 84.16(b)(1).


author: GARY D. WITT, Judge.

text:
    WALTERS BENDER STROHBEHN & VAUGHAN, P.C., Appellant, v. Elizabeth A. MASON, Respondent.
    No. WD 71292.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Stephen B. Millin, Jr., Kansas City, MO, for appellant.
    Bernard T. Schmitt, Kansas City, MO, for respondent.
    Before Division Three: JAMES M. SMART, JR, Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Walters Bender Strohbehn & Vaughan, P.C. (“the Firm”) appeals the judgment of the circuit court that dismissed its Petition based on Elizabeth Mason’s (“Mason”) motion to dismiss. We reverse and remand.

Factual Background

On March 3, 2008, the Firm filed its Petition against Mason in Jackson County Circuit Court. The Petition contained four counts (breach of contract, conversion, unjust enrichment, and quantum meruit), all which related to the Firm’s overarching allegation that Mason “wrongfully refused to compensate Plaintiff for legal services rendered pursuant to a fee-sharing agreement between the parties.”

In October 2007, Michael Strohbehn, (“Strohbehn”), a named shareholder in the Firm, entered into a contingent fee agreement with Mason to assist Mason in representing a client in a case that was scheduled for trial in state court in New York in November 2007. Mason’s juvenile client had a pending suit against the city of New York on a theory of “sexual abuse.” See Mason v. City of New York, 67 A.D.3d 475, 889 N.Y.S.2d 24 (N.Y.App.Div.2009); see also Anonymous v. High Sch. for Envtl. Studies, 32 A.D.3d 353, 820 N.Y.S.2d 573 (N.Y.App.Div.2006).

In November 2007, Strohbehn traveled to New York City, and assisted Mason in prosecuting her client’s case at trial. It is not disputed that, among other things, Strohbehn conducted the voir dire, made the opening statement, conducted the direct examination of an important witness, and conducted a Frye hearing. After several days of trial, a mistrial was declared by the Court. There is no allegation that the mistrial was caused by some inappropriate action by Strohbehn. In December 2007, Mason discharged Strohbehn from the case and informed him she was terminating the fee-sharing agreement between the parties. During the retrial of this case in February 2008, Mason settled the underlying matter. Neither the Firm nor Strohbehn received any compensation for their services in the case.

The Firm subsequently filed this action against Mason, and Mason filed her Motion to Stay Or In The Alternative Dismiss. In her Motion, Mason alleged that Strohbehn had pursued litigation in New York in order to be compensated for his attorney’s fees stemming from the underlying case. Various supporting documentation was attached to the motion in order to support Mason’s theory that the instant Petition was barred by the doctrine of res judicata.

On June 18, 2009, the circuit court issued its judgment granting Mason’s motion to dismiss and dismissing the Firm’s Petition without prejudice. In so ruling, the trial court did not elaborate as to its reasoning.

Jurisdiction

At the outset, we must determine whether we have jurisdiction over the instant appeal. Mason argues that this Court does not have jurisdiction over the appeal because the trial court dismissed the petition without prejudice. We disagree.

“The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appeal-able.” White v. White, 293 S.W.3d 1, 7 (Mo.App.W.D.2009) (internal quotation marks omitted). “An exception to this general rule is that an appeal can be taken where the dismissal has the practical effect of terminating the litigation in the form presented by the plaintiff.” State ex rel. Nixon v. Smith, 280 S.W.3d 761, 765 (Mo. App. W.D.2009) (internal quotation marks omitted). “If the dismissal was such that a refilling of the petition at that time would be a futile act, then the order of dismissal is appealable.” Id. (internal quotation marks omitted). “[W]hen the effect of the order is to dismiss the plaintiffs action and not the pleading merely, then the judgment entered is final and appeal-able because the dismissal amounts to an adjudication on the merits.” White, 293 S.W.3d at 7 (internal quotation marks omitted).

“[Dismissals without prejudice have been held appealable in such cases where the dismissal was based on statutes of limitations, theories of estoppel, a plaintiffs lack of standing, failure of the petition to state a claim where the plaintiff chose not to plead further, failure of a plaintiff in a medical malpractice action to file the health care provider affidavit and the plaintiffs claims not being covered by the statute upon which the petition was based.” Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App. E.D.2000) (emphasis added). “This train of exceptions serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata of what that judgment actually decides.” Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991).

The trial court, in this case, did not indicate the reasoning for its dismissal of the Petition. Where the trial court does not state a basis for dismissal, we presume it was based on the grounds alleged in the motion to dismiss, and we will affirm if the dismissal is proper under any of the grounds stated in the motion. Dudley v. S. Union Co., 261 S.W.3d 598, 601 (Mo. App. W.D.2008). Mason moved to dismiss the Petition based on her sole assertion that the Firm already sought and obtained judicial relief pertaining to its attorney’s fees on the same facts in New York, and therefore the instant litigation was barred by the doctrine of res judicata.

We have previously held that an estop-pel theory “has the practical effect of terminating the action in the form cast,” thus providing this Court with jurisdiction to hear this appeal. Shores v. Express Lending Servs., Inc., 998 S.W.2d 122, 125 (Mo.App. E.D.1999). Mason, in arguing that jurisdiction is improper, states that the trial court did not err in dismissing the petition and that therefore “the Trial Court’s decision did not result in prejudice to the Appellant’s rights.” But this argument touches on the merits of the appeal, not our authority to review the decision. Therefore, we conclude that review properly lies in this Court.

Analysis

In Point One, the Firm argues that the trial court erred in dismissing its Petition because the evidence to support the affirmative defenses of res judicata, collateral estoppel, action splitting, abatement and/or comity were matters outside the pleadings and the trial court is prohibited from looking outside the pleadings on a motion to dismiss.

Mason’s motion to dismiss argued that the Petition should be dismissed because “Missouri Courts must give Full Faith and Credit to a foreign jurisdiction’s judgment” and that “a forum state must give the final judgment of a sister state at least the same res judicata effect as the judgment would be given in the sister state.” The following principles pertain to the doctrine of res judicata:

The doctrine of res judicata operates to bar any claim that was previously litigated between the same parties or those in privity with them. The defense precludes consideration of issues decided in the prior lawsuit, as well as those issues that the parties could have brought into the case at that time. Res judicata is applicable upon “the concurrence of four elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or status of the person for or against whom the claim is made.”

Spath v. Norris, 281 S.W.3d 346, 350 (Mo.App. W.D.2009) (citations omitted).

A. The Motion to Dismiss “Converted” to a Summary Judgment Motion

Here, there can be no doubt that Mason, in filing her motion to dismiss, submitted exhibits outside of the pleadings for the court’s consideration. Specifically, attached to the Motion to Dismiss were: (1) Mason’s affidavit regarding the New York litigation, (2) Exhibit A (a pleading filed by Strohbehn in New York requesting a “charging lien”), (3) Exhibit B (Stroh-behn’s affidavit that was filed in New York in support of his “charging lien” request), (4) Exhibit C (a thirty-four page transcript of the court proceedings in New York pertaining to the “charging lien” request), (5) Exhibit D (the Court’s order pertaining to the “charging lien” request), and (6) Exhibit E (Notice of Appeal filed in New York by Strohbehn).

“In ruling on a motion to dismiss, the trial court can only consider the pleadings, and appellate review is also limited to the pleadings.” L.C. Dev. Co. v. Lincoln County, 26 S.W.3d 336, 339 (Mo.App. E.D. 2000). Rule 55.27(a) allows the trial court to transform a motion to dismiss into a motion for summary judgment when the parties submit for the court’s consideration matters outside of the pleadings. Weems v. Montgomery, 126 S.W.3d 479, 482 (Mo. App. W.D.2004). Rule 55.27(a) states, in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.

“While not expressly stated in [Rule 55.27(a) ], defenses of res judicata and issue preclusion are in essence defenses alleging the plaintiff has failed to state a claim upon which relief may be granted.” King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498 (Mo. banc 1991). “Such defenses may succeed only if uncontroverted facts demonstrate the present suit is groundless.” Id. at 498-99.

The Eastern District recently summarized the relevant process pertaining to when matters outside the pleadings are attached to a motion to dismiss:

While a trial court is not permitted to review matters outside the pleadings in ruling on a motion to dismiss, its hands are not entirely tied in this respect. Missouri Supreme Court Rule 55.27(a) allows trial courts to treat a motion to dismiss for failure to state a claim as a motion for summary judgment when the moving party includes matters outside the petition for the court’s consideration. While the language of the Rule limits this “conversion” to motions to dismiss for failure to state a claim upon which relief can be granted, our courts have also endorsed converting a motion to dismiss into a motion for summary judgment when the motion to dismiss is based on an affirmative defense. Before a trial court may treat a motion to dismiss as a motion for summary judgment, however, it must notify the parties that it is going to do so and give the parties an opportunity to present all materials pertinent to a motion for summary judgment.

Grellner v. Foremost Signature Ins. Co., 291 S.W.3d 351, 353-54 (Mo.App. E.D. 2009) (emphasis added) (citations omitted).

As previously mentioned, in granting the motion to dismiss, the trial court provided no grounds for its dismissal, and therefore we presume it was based on the grounds alleged in the motion to dismiss. Dudley, 261 S.W.3d at 601. Because the sole argument in Mason’s motion to dismiss was grounded on the theory that the Firm’s petition for relief was barred by the New York litigation, it is evident that the trial court was required to rely on Mason’s exhibits which were outside the pleadings. Without the evidentiary support provided by the attached exhibits for Mason’s argument that the New York litigation was substantially identical to the instant lawsuit and therefore precluded this litigation, the trial court was without a basis to grant the motion to dismiss. Eaton v. Mallinck-rodt, Inc., 224 S.W.3d 596, 602 (Mo. banc 2007).

Accordingly, we must treat the instant motion as if it were a motion for summary judgment.

B. The Firm Received No Notice That The Motion Would Be Treated As One For Summary Judgment

Prior to ruling on Mason’s motion, it is undisputed that the trial court provided no notice to either party that it was treating the motion to dismiss as a summary judgment motion. When the opposing party does “not acquiesce in treating the motion as one for summary judgment,” the trial court’s failure to provide such notice requires reversal. Gregg v. City of Kansas City, 272 S.W.3d 353, 363-64 (Mo.App. W.D.2008); see also Grellner, 291 S.W.3d at 354.

In this case there is an issue as to whether the New York litigation precluded the Firm from bringing the instant litigation. The Firm argues on appeal that, if given the opportunity, it will be able to “controvertí ] the assertions in Mason’s affidavit and providing other documents and records demonstrating the inapplicability of the affirmative defenses predicated on the New York Special Proceeding.” While the Firm is vague as to what these documents are and how they will support its contention that Mason’s summary judgment motion should be denied, we nonetheless believe that we are required as a matter of law to remand this matter to afford them such an opportunity for the aforementioned reasons.

The Firm was not provided notice that the trial court intended to transform the motion to dismiss into a motion for summary judgment, and the Firm expressly requested from the Trial Court “the opportunity to respond as if this was a motion for summary judgment” if the Court considered the matters outside the pleadings. Accordingly, while a party may “acquiesce” to a motion to dismiss converting to a summary judgment motion, we do not believe that this is such a case. See King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 499 (Mo. banc 1991); see also Shores v. Express Lending Servs., Inc., 998 S.W.2d 122, 125-26 (Mo.App. E.D.1999).

Here, the Firm had a reasonable basis pursuant to Missouri law to believe that it would be given an opportunity to present evidence and argument to the Court, if Mason’s motion was to be treated as a summary judgment motion. Indeed, the Missouri Supreme Court has made clear in an analogous situation pertaining to a motion for judgment on the pleadings that a judgment granting summary judgment cannot stand if the trial court fails to give “ ‘all parties ... a reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.’ ” Eaton, 224 S.W.Bd at 601. “Great caution must be exercised in granting summary judgment because it is an extreme and drastic remedy that borders on denial of due process in that the opposing party is denied its day in court.” Ross v. Am. Tel. & Tel. Commc’ns Corp., 836 S.W.2d 952, 954 (Mo.App. W.D.1992). For all of these reasons, we reverse and remand with directions to the trial court to allow Mason to re-file her motion in compliance with Missouri Supreme Court Rule 74.04(c), governing summary judgment, and to order the Firm to follow the requirements of Rule 74.04 as well.

Conclusion

The judgment of the circuit court, dismissing the Firm’s Petition, is reversed and remanded.

All concur.

      . The details relating to this agreement are not outlined herein because they are not relevant to our disposition on appeal. Specifically, we take no view as to whether this agreement involved Strohbehn, the Firm, or both entities.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

      . Unless otherwise indicated, all rule refer-enees are to the Missouri Court Rules (2010).

      . In so ruling, we expressly refrain from delving into the merits of this res judicata issue precisely because it is not yet ripe for consideration since both parties have not had a full and fair opportunity to present evidence and related arguments pertaining thereto.

      . Shordy after Mason filed its motion to dismiss, the trial court entered a Notice of Case Management Conference to be held on July 13, 2009. For whatever reason, only ten days later the trial court then entered its judgment disposing of the Firm’s lawsuit and thus canceling the case management conference.

      . Because the Firm's first Point Relied On is dispositive of this appeal, we need not turn to the merits of its second and third points.


text:
    Erik KORTE, Appellant, v. The CURATORS OF the UNIVERSITY OF MISSOURI, William Crist, and Rachel Brown, Respondents.
    No. WD 71241.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      George S. Smith, Columbia, MO, for appellant.
    Phillip J. Hoskins, Columbia, MO, for respondents.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSESPH M. ELLLIS, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Erik Korte appeals the judgment of the circuit court, which after a bench trial, denied his requested relief against the Curators of the University of Missouri, William Crist, and Rachel Brown (“University”),, after Korte was expelled from the University based on a finding of misconduct. We affirm.

Factual Background

The relevant facts on appeal are mostly undisputed. In 2007, Korte was a student in good standing at the University’s School of Medicine when it was alleged that he violated the University’s Honor Code. Korte does not dispute that while he was the Class Treasurer for the School of Medicine, he misappropriated funds from the class checking account. Specifically, Korte wrote two checks from this account for a total amount of $8,500.00 that he placed into his own checking account and spent for his own personal benefit. Korte attempted to withdraw an additional $2,000.00 from this account but was unsuccessful because the class checking account had insufficient funds.

When this matter was first discovered by the University, a hearing was held by the Honor Council because it has jurisdiction over both academic and professional dishonesty, as well as overall medical student conduct. Korte was present during the hearing; however, he declined to have an “advisor” present or cross-examine relevant witnesses, as he had the right to do under the Honor Code. Korte admitted that he took the funds because he could not afford “a necessary but non-emergent surgery” to correct his bite and jaw alignment but that he intended to repay the money in full before anyone discovered that it was missing. By the time the hearing occurred, Korte had returned the $3,500.00.

After the hearing, the Honor Council found that Korte’s conduct violated the Honor Code and made nine “recommendations” as to Korte’s punishment. The Honor Council did not recommend that Korte be dismissed from the University.

Pursuant to the University’s Honor Code, the aggrieved student or the Associate Dean for Student Programs is empowered to appeal any disciplinary action taken by the Honor Council. In her role as the Associate Dean for Student Programs, Rachel Brown exercised her right to appeal the Honor Council’s Report as it pertained to the sanctions for Korte’s misconduct. According to the University’s Honor Code, this appeal was to be presided over by a three member committee (“Committee”) composed of the Dean of the School of Medicine (William Crist) and two members of the faculty (Dr. Ted Groshong and Dr. David Fleming).

Subsequently, the Committee had a meeting wherein they decided to seek advice from the University’s Committee on Student Promotions (“CSP”) prior to ruling on the merits of the appeal. Prior to this matter, Dean Crist had routinely sought the recommendation of the CSP before making a decision on student discipline.

Korte was notified by certified mail that a hearing pertaining to the appeal would be held by the CSP. Korte attended the CSP’s hearing, read a prepared statement, and answered questions from the CSP’s committee members. Korte admitted at the hearing that his conduct violated the Honor Code and also stated that he understood that he could be dismissed from the University for violating the Honor Code. After the conclusion of this hearing, eight members of the CSP voted to recommend dismissal of Korte from the University, three members voted against recommending dismissal, and one member abstained.

After receiving this recommendation from the CSP, Dean Crist convened a meeting of the Committee in order to make a final ruling on the appeal. The Committee decided that Korte was to be dismissed from the University based on his Honor Code violations, and Korte was provided written notice of the decision.

Thereafter Dean Crist met with Korte and Korte’s parents because they wanted to persuade the Dean to reconsider the Committee’s decision. After this meeting, Dean Crist informed Korte in writing that the Committee’s decision to dismiss him from the University was final. Korte subsequently appealed the Committee’s decision to the Chancellor of the University, and the Chancellor also denied his appeal.

Korte filed his Amended Petition for Declaratory Relief, Temporary Restraining Order, Preliminary Injunction and Permanent Injunction in Boone County Circuit Court. In Count One, Korte requested a declaratory judgment finding that the University had violated Korte’s Fourteenth Amendment right to procedural due process pursuant to 42 U.S.C. Section 1983. Count Two alleged that the doctrine of “administrative collateral es-toppel” barred the Committee from reconsidering the Honor Council’s recommendations as to Korte’s punishment. Count Three requested a Temporary Restraining Order and Injunctive Relief, based on the aforementioned theories of relief, which would allow Korte to resume his education at the University.

Both Korte and the University submitted evidence at trial, and various witnesses were called to testify including Korte, Dean Crist, and Dean Brown. The trial court issued its judgment denying Korte’s requested relief and set forth detailed findings of fact and conclusions of law. Korte now appeals.

Standard of Review

The Supreme Court of Missouri recently outlined our applicable standard of review:

This Court’s review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This Court will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law, accepting all evidence and inferences therefrom in the light most favorable to the prevailing party and disregarding all contrary evidence. Further, on appeal of a court-tried case, the appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.

Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647, 652 (Mo. banc 2009) (citations omitted) (internal quotation marks omitted).

Analysis

In Point One, Korte argues that the “trial court erred in granting judgment in favor of Defendants because the Defendants violated constitutional guarantees of due process under 42 U.S.C. Section 1983 ... in that the Defendants’ failure to abide by its own rules and regulations governing a disciplinary dismissal deprived Plaintiff of his constitutionally protected interests.”

The Due Process Clause is implicated by higher education disciplinary decisions because such students possess a “constitutionally protectable property right” in their continued enrollment in a university. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 223, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); see also Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-85, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).

“Once it is established that an interest is subject to due process protection, the question remains what process is due.” Reasoner ex rel. Reasoner v. Meyer, 766 S.W.2d 161, 163 (Mo.App. W.D.1989) (citing Goss v. Lopez, 419 U.S. 565, 577, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). Because Korte’s case is a “disciplinary” matter based on misappropriating funds rather than an academic one, we conduct a more searching inquiry. State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 329 (Mo. banc 1995) (citing Horowitz, 435 U.S. at 89-91, 98 S.Ct. 948). This is because disciplinary matters, being more objective in nature and not dependent upon the analytical expertise of professional academicians, will bear a resemblance to traditional judicial and administrative fact finding and thus are more capable of judicial review. Horowitz, 435 U.S. at 89-90, 98 S.Ct. 948,

At the same time, the Eighth Circuit has outlined the deference we owe to institutions of higher learning when making disciplinary determinations:

In examining Woodis’ § 1983 claim, certain principles particular to the school setting guide our analysis. Although students do not “shed their constitutional rights ... at the school house gate,” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court has observed that “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures,. ...” New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Given the flexibility afforded schools in this area, we must “enter the realm of school discipline with caution,” Stephenson v. Davenport Community School Dist., 110 F.3d 1303, 1306 (8th Cir.1997), and we must exercise “care and restraint” in reviewing Wes-tark’s discretionary decision to expel Woodis from the school’s nursing program. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

Woodis v. Westark Cmty. Coll., 160 F.3d 435, 438 (8th Cir.1998).

There are two basic due process requirements: (1) notice and (2) an opportunity to be heard. Reasoner, 766 S.W.2d at 163 (citing Goss, 419 U.S. at 582, 95 S.Ct. 729). Disciplinary hearings against students are not criminal trials and need not take on the formalities of such trials. Id. at 164

With these principles in mind, we turn to Korte’s overarching allegation in his first point that the University failed “to abide by its own rules and regulations governing a disciplinary dismissal” when expelling Korte from the University and this violation deprived him of constitutionally protected interests. While he alleges that the University violated “internal policies and written procedures,” Korte fails to identify which policies or procedures were in fact violated. “Rule 84.04(d) requires that, in addition to stating the challenged decision of the trial court and the legal basis for claiming reversible error, a point relied on must state facts that demonstrate how, in the context of the case, the trial court erred.” Vestin Realty Mortgage I, Inc. v. Pickwick Partners, L.L.C., 279 S.W.3d 536, 539 (Mo.App. W.D.2009). This Court will not speculate as to which policies or procedures Korte believed were violated by the University because to do so would be impermissible advocacy by this Court. Id.- White, 293 S.W.3d at 13.

Korte asserts that at trial he adduced evidence that supported the “only reasonable inference” that Defendants Crist and Brown wanted a harsher penalty than the Honors Committee recommended and were determined to impose the severest penalty possible. The gravamen of Korte’s argument in Point One is that because of Dean Crist and Dean Brown’s bias, Korte’s fate was predetermined, and therefore Korte’s hearings before the University’s administrative bodies were a pretense or sham and were neither fair nor meaningful and violated due process. “Of all the rights encapsulated within due process, the requirement of an impartial decision-maker is the most important because without that right, the other rights become meaningless.” Stonecipher v. Poplar Bluff R1 Sch. Dist., 205 S.W.3d 326, 329 (Mo. App. S.D.2006) (internal quotation marks omitted).

In denying Korte’s claims, the trial court found that “no procedural or substantive due process rights guaranteed by the 5th and 14th amendments to the United States Constitution have been denied Plaintiff by the Defendants.” The trial court had the opportunity to hear both Dean Crist and Dean Brown testify regarding their respective role at the University in ensuring that Korte was properly disciplined for his misconduct. Korte does not dispute that the University’s Honor Code expressly provided that Dean Brown was permitted to appeal the decision of the Honor Council to the Committee compromising of Dean Crist and two other faculty members. Nor does Korte dispute that Dean Crist voluntarily chose to refer the matter to the Committee on Student Promotions for their independent assessment of the matter, regardless of the fact that the University’s Honor Code did not require such due process. In arguing that Dean Crist and Dean Brown were pre-disposed to dismiss him from the University, Korte ignores the fact that they testified to the contrary at trial and that we “defer [] to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” Essex Contracting, Inc., 277 S.W.3d at 652.

In arguing that the University’s proceedings were a sham, Korte makes allegations on appeal that are not supported by the record. For example, Korte contends that Dean Crist “admitted he had not followed the appellate procedures of the Hon- or Code,” but we see no such admission by Dean Crist in Korte’s citations to the transcript. Korte has failed to demonstrate that the trial court somehow erred in concluding that he received the due process he was entitled to receive or that this conclusion by the Court was somehow against the weight of the evidence.

The second and final argument Korte makes in Point One is that Dean Brown’s dual role as an advisor to Korte and as “a partisan facilitator for much of the [University’s] actions” made Dean Brown “less than impartial.” It is true that Korte demonstrated at trial that Dean Brown advised Korte during the administrative disciplinary process in her role as Associate Dean for Student Programs. We do not find this fact inherently troubling however because, while it was Dean Brown who decided to appeal the decision of the Honor Council, she was not part of the Committee that ultimately decided upon the merits of whether to terminate Korte from the University. Korte has also failed to demonstrate that Dean Brown’s role as an advisor acted to prejudice Korte in any way.

The Eighth Circuit has held that in the realm of discipline at institutions of higher learning, a student is only entitled to “adequate notice, definite charge, and a hearing with opportunity to present one’s own side of the case and with all necessary protective measures.” Woodis, 160 F.3d at 440 (internal quotation marks omitted). For all of the aforementioned reasons, we believe the trial court did not err in con-eluding that Korte received all the procedural due process he was entitled to before the University expelled him as a student.

Point One is denied.

In Point Two, Korte argues that the trial court erred in refusing to grant injunctive relief because the University “took actions outside the authority granted them under the Honor Code by reversing the HC’s decision absent any finding of error.”

Here, the Commission agreed with the Honor Council that Korte’s actions violated the Honor Code but disagreed with the Honor Council’s recommended punishment. Korte asserts that, in order to do so, the Commission must have found some error in the actions or findings of the Honor Council. The Honor Code does not set forth the standard of review that is to be applied by the Commission and does not require any deference be given to the Honor Council’s findings or conclusions. Korte insinuates that the Board was somehow required to make a “finding of error” when reversing the Honor Council’s recommendation, but nowhere in the Honor Code is such a requirement codified. Korte’s argument that “expulsion is the most severe penalty that can be imposed on a student” does not, by itself, demonstrate an entitlement to relief on appeal.

In rejecting Korte’s claim, the trial court found that the Committee was not materially and substantively outside its authorized scope of review. Even if we agreed that the actions of the Commission somehow deviated from the internal procedures of the University, we do not find that this deviation entitles Korte to relief. Noncompliance with its own procedures does not constitute a due process violation if the hearing provided exceeds the process constitutionally required. Schuler v. Univ. of Minn., 788 F.2d 510, 515 (8th Cir.1986). Korte was provided notice and multiple opportunities to be heard, and the punishment imposed was within the range of punishment authorized by the Honor Code. We therefore conclude that Korte has failed to demonstrate that the trial court’s findings and conclusion in this regard were somehow in error.

Point Two is denied.

In Point Three, Korte argues that the trial court erred in failing to grant him relief because the Commission improperly substituted its judgment for that of the Honor Council. We disagree.

The trial court concluded, in denying this claim, that the “Honor Code of the School of Medicine was not materially and substantively violated by the action of the Dean and/or the three-member appellate committee’s substitution of its judgment for the sentence of the Honor Council.”

Simply put, Korte fails to cite any persuasive authority that the Commission was not allowed to substitute its judgment for that of the Honor Council. As analyzed in detail in Point Two, nothing in the Honor Code prevents the Commission from substituting its judgment as it pertains to “the Honor Council’s sentence” when reviewing the Honor Council’s findings. Moreover, in deciding Korte’s punishment for his Honor Code violations, the Honor Council made clear that its nine findings were “recommendations,” which certainly put Korte on notice that they were subject to review.

To support his argument that the Commission was not allowed to substitute its judgment for the Honor Council’s, Korte cites to the following unpersuasive authority:

“It is not the appellate court’s function to substitute its judgment for that of the jury.” State v. Community Alternatives Mo., Inc., 267 S.W.3d 735, 743 (Mo.App. S.D.2008). “As long as the record contains credible evidence upon which the fact finder could have formulated its beliefs, this court will not substitute its judgment for that of the trial court.” Alongi v. Alongi, 72 S.W.3d 592, 597 (Mo.App. W.D.2002).

Br. 27-28.

This is not an appeal from an administrative agency which requires deference to the factual findings of the agency. This is an appeal from a trial court’s judgment from a separate civil action filed by Korte. The Honor Council is neither a jury nor a trial court that is somehow owed deference as a matter of law. This Court notes that it is the trial court, not the Honor Council or the Commission, that is entitled to deference pursuant to our applicable standard of review. Essex Contracting, Inc., 277 S.W.3d at 652.

Finally, while Korte concedes on appeal that the University’s process is outside the bounds of state administrative law, Korte persists in arguing that Missouri law pertaining to the Personnel Advisory Board (Section 36.380) somehow requires reversal of the trial court’s judgment. We need not be detained by this argument because it is clear that the University was not required to follow state law pertaining to the administration of state personnel for numerous reasons, including the fact that Korte was a student and not an employee of the University.

Point Three is denied.

In Point Four, Korte argues that the Defendants are collaterally estopped and bound by the decision of the Honor Council.

The following four elements constitute a cognizable collateral estoppel claim, all of which must be pled and proven to entitle a party to relief:

(1) the issue decided in the first action must be identical to the issue in the second action; (2) the prior litigation must have resulted in a final judgment on the merits; (3) the party to be es-topped must have been a party or in privity with a party to the prior adjudication; and (4) that party must have had a full and fair opportunity to litigate the issue in the prior suit.

Fischer ex rel. Scarborough v. Fischer, 34 S.W.3d 263, 265 (Mo.App. W.D.2000).

We believe that the second element is dispositive of Korte’s collateral estoppel claim because the initial determination and recommendation by the Honor Council was not a “final judgment,” that precluded the University from exercising its right of appeal under the University’s Honor Code. The Honor Council’s recommendations were not a “final judgment,” because they are subject to appeal. As a practical matter, Korte himself was also entitled to appeal them, and we presume Korte would have appealed if the Honor Council had recommended his expulsion from the University.

Korte cites no authority for the proposition that when a party has an established right to appeal, the doctrine of collateral estoppel can be used as a tool by the opposing party to preclude and prevent that appeal. As Korte was free to appeal the trial court’s instant judgment that denied him relief after a trial, the University was not barred from appealing the Honor Council’s recommendations pursuant to the doctrine of collateral estoppel.

Point Four is denied.

Finally, in Point Five, Korte argues that the trial court erred because its judgment “failed to provide any basis for its conclusion of the specific fact issues raised, and it contained no grounds for its decision pursuant to Plaintiffs Rule 73.01(c) request which contained specific requests for findings of fact on Plaintiffs legal claims.” We disagree.

Korte made a written request pursuant to Rule 73.01 that required the trial court to make written findings of fact in its judgment. It is undisputed that the Court in fact made voluminous findings of fact in its judgment rejecting Korte’s claims. Korte fails to point to any element of his claims for which the trial court neglected its duty. We therefore are at a loss as to why Korte believes he is entitled to relief on appeal in this regard.

For example, Korte puts forth the con-clusory assertion that:

The court’s findings of fact in paragraphs 40 through 57, which ostensibly address the specific facts issues raised in Plaintiffs 73.01(c) request, fail to provide any basis for concluding that the Defendants] actions were within the scope of authority granted them under the Honor Code and the University’s Collected Rules and Regulations and not harmful to Plaintiff.

But in each of the preceding four Points Relied On, this Court has outlined the relevant findings of fact made by the trial court that supported the Court’s conclusion that Korte was not entitled to relief. Korte concedes that “ ‘[a]ll that Rule 73.01 requires is that the court make a statement of the grounds for its ultimate decision,’ ” yet he ignores that this is precisely what the trial court did. Cohen v. Cohen, 178 S.W.3d 656, 663 (Mo.App.2005) (quoting Dorman v. Dorman, 91 S.W.3d 167, 171 (Mo.App.2002)).

Finally, we believe that this argument fails under our applicable standard of review, because it is Korte’s burden to demonstrate that the trial court’s Judgment was somehow deficient, thus entitling him to relief. Essex Contracting, Inc., 277 S.W.3d at 652. Here, Korte does not even attempt to explain why the specific findings of fact made by the court were somehow deficient beyond making a broad based claim that is so vague that it does not even include any of pertinent language from the Judgment in order to demonstrate how it is deficient.

Most importantly, for the aforementioned reasons, we find that the findings of fact and the conclusion of law contained in the Judgment were legally sufficient as a matter of law pursuant to Rule 73.01.

Point Five is denied.

Conclusion

The judgment of the circuit court, denying Korte’s claims, is hereby affirmed.

All concur.

      . Korte argues on appeal that the trial court erred in failing to award him attorney's fees and injunctive relief pursuant to his procedural due process claim. However, because we affirm the judgment of the trial court, it goes without saying that the trial court did not err in failing to grant such relief in that he was not the “prevailing party” and thus was entitled to no relief.

      . All statutory citations are to RSMo 2000 as amended through the 2009 Cumulative Supplement, unless otherwise indicated.