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Shelton v. Missouri Baptist Medical Center1/30/2001
d by an Administrative Law Judge upon an oral or written motion made by the attorney representing the employer/insurer at a dismissal setting or hearing setting."
These arguments fail. First, she was specifically notified her claim was in danger of being dismissed in the order dated September 19, 1996 instructing her to attend all future employer-scheduled doctor's appointments or her claim would be dismissed. Secondly, sections 287.650 RSMo (Supp. 1999) and 287.655 RSMo 1994 do not limit an ALJ's authority to dismiss only at certain proceedings. The Division's local rule cited by claimant does not limit or restrict dismissals to being done only on motion and at dismissal settings or hearing settings. Section 287.650.1 states: " he division shall have power to strike pleadings and enter awards against any party or parties who fail or refuse to comply with its lawful orders." Section 287.650. An order of dismissal is deemed an award. Section 287.655. Here, Shelton failed to comply with the order issued September 19, 1996. By failing to attend the court-ordered employer-scheduled doctor's appointments, she failed to prosecute her case. Therefore, the ALJ had authority to enter an award in accordance with section 287.650.1 dismissing the case. See Cade v. Bendix Corp., 564 S.W.2d 608, 609 (Mo. App. 1978).
Shelton's argument that the Division's docket rules do not allow dismissal at mediation also fails. The order was issued for Shelton's failure to comply with an order of the court constituting failure to prosecute. Therefore, the case could be dismissed after Shelton's unmitigated failure to comply with that order. Cade, 564 S.W.2d at 609. Point denied.
In her second point on appeal, Shelton alleges that the Commission acted in excess of its powers and lacked jurisdiction in ordering a remand hearing to the Division to develop facts surrounding the dismissal of her claim. She claims the Commission's remand to develop facts was improper because the Commission was to determine if dismissal at mediation was proper. We disagree.
"When the terms of the mandate remand the cause to the subordinate tribunal, the effect is to revest jurisdiction in that court to take the acts directed." Moore v. Beck, 730 S.W.2d 538, 540-41 (Mo. banc 1987). "A remand with directions limits the trial court to enter a judgment in conformity with the mandate." Outcom v. City of Lake St. Louis, 996 S.W.2d 571, 574 (Mo. App. 1999). The "proceedings on remand should be in accordance with the mandate and the result should be contemplated in the appellate court's opinion." Ironite Products Co., Inc. v. Samuels, 17 S.W.3d 566, 570 (Mo. App. 2000). When remanding Shelton's previous appeal we stated: " he Commission's order of 23 October 1998 dismissing Shelton's Application for Review is reversed, and the claim is remanded to the Commission with directions that claimant's application for review be considered." Shelton, 998 S.W.2d at 835. The remand included directions to the Commission to review Shelton's claim. Remand to the Division was a result that could be contemplated by the appellate court because Shelton's application for review not only alleged error in dismissing her case at mediation but also stated that "the ALJ's order denies the Employee her procedural rights and ability to present her claim at a hearing." The Commission had jurisdiction to remand the case to the Division to develop facts because the application for review contained an allegation of failure to allow her to present her claim at a hearing. Point denied.
The decision of the Commission is affirmed.
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