JANET ANHALT,                                             )
                                                          )
                     Respondent,                          )
                                                          )
       v.                                                 ) No. SD34420
                                                          )
PENMAC PERSONNEL SERVICES, INC.,                          ) FILED: December 19, 2016
and ACE AMERICAN INSURANCE COMPANY,                       )
                                                          )
                     Appellants.                          )

    APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

REVERSED AND REMANDED

(Before Rahmeyer, J., Scott, J., and Francis, J.)

       PER CURIAM. In this workers compensation appeal, Penmac complains that

the Commission awarded benefits on a liability theory Claimant never raised before

the ALJ or in seeking Commission review. 1 “[E]ven if the Commission could properly

consider non-appealed matters … it could not do so without appropriate notice and

opportunity to be heard.” Nolan v. Degussa Admixtures, Inc., 246 S.W.3d 1, 5

(Mo.App. 2008); see also Mell v. Biebel Bros., Inc., 247 S.W.3d 26, 32 (Mo.App.


1The parties referred to themselves as “Claimant” and “Penmac” in their appellate briefs and we
do likewise. The “Commission” is the Labor and Industrial Relations Commission. Statutory
citations are to RSMo chapter 287 as amended through 2008.
2008); Stonecipher v. Poplar Bluff R1 School Dist., 205 S.W.3d 326, 332-33

(Mo.App. 2006). We reverse and remand for further proceedings.

       We summarize only the background needed to understand why we rule as we

do. Penmac, a personnel staffing service, employed Claimant to perform seasonal or

temporary services for Penmac’s clients, including a food plant (“Reckitt”). After

working her Reckitt shift one winter day, Claimant slipped on ice, fell, and was injured

while walking to her car in Reckitt’s parking lot.

       Claimant pursued a workers’ compensation claim against Penmac. The parties

agreed that Penmac employed Claimant, but Reckitt owned and controlled the

parking lot, facially barring relief because after-work injuries generally are not

compensable and an extended-premises exception now lies only if the employer owns

or controls the site of the accident. See Scholastic, Inc. v. Viley, 452 S.W.3d 680,

683-84 (Mo.App. 2014) (citing § 287.020.5).

       To quote the ALJ’s decision, Claimant’s theory around this problem was that

Reckitt “also was her statutory employer” per § 287.040, so “her injury on the

statutory employer’s property is compensable under the extended premises

doctrine.” The ALJ rejected this theory and denied the claim.

       Claimant sought Commission review, specifically challenging the ALJ’s

rejection of her statutory-employer theory of liability. The Commission ignored that

issue, but reversed the ALJ and awarded benefits on a theory Claimant never asserted

or suggested; i.e., Reckitt’s “joint control” or “joint benefit” reflecting “joint service”

per principles cited in Leach v. Bd. of Police Comm’rs, 118 S.W.3d 646 (Mo.App.

2003), and Shurvington v. Cavender Drywall, 36 S.W.3d 432 (Mo.App. 2001).

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The Commission indicated that it had tipped its hand on this during the parties’ oral

argument, but denied Penmac’s request to remand for additional evidence as to the

new theory. We agree with Penmac that this refusal to remand was error.

      On appeal, Claimant seeks to justify the Commission’s “injecting” the new

Leach/Shurvington basis for liability, and opines that “no legal authority …

suggests the Commission is limited in its decision-making authority to only that legal

theory offered by the proponent on review of a singular issue.” Such arguments miss

the mark. As in prior cases, we need not decide whether the Commission can reach a

non-appealed issue “because [Stonecipher’s] holding regarding the due process

requirement in section 287.470 is dispositive here.” Mell, 247 S.W.3d at 32; see also

Stonecipher, 205 S.W.3d at 331-33. Whether or not the Commission can reach non-

appealed issues, “[d]ue process, in Missouri workers’ compensation cases and

elsewhere, contemplates the opportunity to be heard at a meaningful time and in a

meaningful manner.” Nolan, 246 S.W.3d at 5. 2

      We need not elaborate or reach Penmac’s other points. The Final Award is

reversed and the case is remanded to the Commission for further proceedings

consistent herewith.




2Marked differences between Claimant’s § 287.040 theory of statutory employment and the
Commission’s Leach/Shurvington approaches are easily seen by reviewing the latter cases.
Claimant does not deny the differences, which also are illustrated by DiMaggio v. Johnston
Audio/D & M Sound, 19 S.W.3d 185, 188-90 (Mo.App. 2000), reversed on other grounds by
Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003).


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