dissenting.
I respectfully dissent and adopt the opinion of Reinhard, J. of the court of appeals as my dissent.
“On appeal, we must review the record in the light most favorable to the decision of the Commission. If the decision is supported by competent and substantial evidence and in the absence of fraud, and if the Commission could have originally made its findings from the evidence before it, we must affirm. § 288.210, RSMo 1978; Von Hoffman Press, Inc. v. Industrial Commission, 478 S.W.2d 403, 404 (Mo.App.1972).
*848“Claimant here admits that the award was supported by competent and substantial evidence but contends that the court should have reversed because of fraud. He relies upon that portion of the statute which says that the award must be affirmed if supported by competent and substantial evidence absent fraud.
“The phrase ‘absent fraud’ under § 288.-210, RSMo 1978, has never been interpreted by the Missouri courts. However, ‘fraud’ sufficient to warrant the setting aside of a judgment has been defined in many civil cases. There, courts distinguish between extrinsic and intrinsic fraud. Extrinsic fraud effects procurement of the judgment and, if found, will support setting aside the judgment. Koeller v. Koeller, 589 S.W.2d 620, 623 (Mo.App.1979); Fulton v. International Tel. & Tel. Corp., 528 S.W.2d 466, 470 (Mo.App.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317 (1976). Intrinsic fraud, which does not allow setting aside the judgment, pertains to the merits of the cause. Venegoni v. Giudicy, 238 S.W.2d 17, 18 (Mo.App.1951). For example, the falsity of a claim or a falsely sworn assertation [sic] is a matter of intrinsic fraud. Id. at 17-18. The Missouri Supreme Court has held this distinction between intrinsic and extrinsic fraud applicable to a determination of whether or not a workmen’s compensation claim can be set aside because of fraud. Morgan v. Duncan, 361 Mo. 683, 236 S.W.2d 281, 285 (1951); Phillips v. Air Reduction Sales Company, 337 Mo. 587, 85 S.W.2d 551, 559 (1935). We believe that the Legislature intended the term in § 288.210 ‘in the absence of fraud’ to refer to extrinsic fraud rather than intrinsic fraud.
“A review of the claimant’s petition reveals that she presents a claim of intrinsic fraud only. She claims that the ‘entire decision and findings of fact [of the Commission] were based upon fraudulent and erroneous evidence.’ Specifically, claimant alleges that after she notified her employer that she would be compelled to resign her position with her employer because of hazardous and unhealthy conditions, she signed a statement explaining her reasons for leaving her employment. Sometime thereafter, an employee of the Division of Employment Security contacted fellow employees of claimant. Claimant’s petition alleges that a false and fraudulent statement was made by one of these employees and that this statement was inserted into claimant’s own statement without her authorization. The claimant’s statement with the insertion was in the file that was transmitted to the Commission for its determination.
“At no time has the claimant alleged any fraudulent act on the part of the agency. By presenting a claim of false testimony or misrepresentation of the facts by a fellow employee, claimant has failed to present a claim that the award was ‘procured by fraud.’ Phillips v. Air Reduction Sales Company, 337 Mo. 587, 85 S.W.2d 551, 559 (1935). Therefore, the claimant is not entitled to a reversal of the judgment.”
The judgment of the trial affirming the Commission should be affirmed.