Doerr v. Teton Transp., Inc.

• Decision Date: 09 July 2008
• Docket Number: No. 28686.,No. 28698.,28686.,28698.
• Citation: 258 S.W.3d 514
• Parties: James R. DOERR, Appellant/Cross-Respondent, v. TETON TRANSPORTATION, INC., Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

258 S.W.3d 514

James R. DOERR, Appellant/Cross-Respondent, v. TETON TRANSPORTATION, INC., Respondent/Cross-Appellant.

No. 28686.

No. 28698.

Missouri Court of Appeals, Southern District, Division Two.

July 9, 2008.

Kevin H. Dunaway and Courtney A. Nelson, Neale & Newman, L.L.P., Springfield, for Appellant.

Juan F. Arias, Holtkamp, Liese, Schultz & Hilliker, P.C., St. Louis, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Appellant/Cross-Respondent James Doerr ("Claimant") files his appeal (No. 28686) from the Labor and Industrial Relations Commission's ("the Commission") "Temporary Award Allowing Compensation (Modifying Award and Decision of Administrative Law Judge and Denying Motion for Additional Costs)" ("the Commission's Temporary Award"). He asserts two points of Commission error.

Respondent/Cross-Appellant Teton Transportation ("Employer") also appeals (No. 29698, which is now consolidated with No. 28686) from the Commission's Temporary Award positing two points of Commission error.¹ Additionally, Employer filed a "Motion to Dismiss Appeal of [Claimant] for Lack of Appellate Jurisdiction." We shall first address this motion after a brief recitation of the facts.

The record reveals Claimant filed his "Claim for Compensation" with the Missouri Division of Worker's Compensation ("the Division") on December 12, 2005, in which he asserted that on or about August 6, 2005, he was injured "[w]hile in the scope and course of his employment ..." with Employer. Claimant asserted that while in Dalton, Georgia, as an over-the-road truck driver, he "was exiting his truck and stepped down into a pot hole twisting his right ankle and falling onto his buttocks thereby causing the injuries and disabilities complained of." Employer filed an answer on January 12, 2006, in which it stated it was "without knowledge or information sufficient to form a belief as to the truth of [Claimant's] allegations" and it denied the allegations in Claimant's claim. Later, Employer maintained Claimant was on a personal deviation from his assigned route at the time of his accident and injury and, therefore, his injuries did not arise out of and in the course of his employment with Employer. Additionally, Employer asserted Claimant failed to prove timely actual/written notice of his accident; thus, Employer was prejudiced by the lack of proper notice.

On October 20, 2006, a hearing requesting a "Temporary Hardship Award" was held before an Administrative Law Judge ("ALJ"). The ALJ issued its "Temporary or Partial Award" on January 8, 2007, and made the following findings of facts and rulings of law: Claimant's accident arose in the course of his employment with Employer; Claimant had not deviated from the course of his employment at the time of the accident; Claimant's employment related accident caused the injuries and disabilities for which he was claiming benefits; and Claimant properly gave notice to Employer of his accident. As a result of these findings, the ALJ ordered Employer to pay Claimant's past and future medical expenses and ordered Employer to pay Claimant temporary total disability. Further, the ALJ found Claimant was entitled to attorney fees and costs pursuant to section 287.560.²

Employer filed its "Application for Review" with the Commission on January 25, 2007. Claimant then filed a request for additional costs and attorney's fees associated with having to defend against Employer's "Application for Review."

On July 26, 2007, the Commission's Temporary Award was issued. The Commission's Temporary Award affirmed the factual findings of the ALJ, the award of past and future medical expenses, and temporary total disability benefits; however, the Commission reversed the ALJ's award of costs to Claimant. The Commission also denied Claimant's request for additional attorney's fees and costs. The Commission further stated that "[t]his award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510."³

On August 24, 2007, Claimant filed his notice of appeal in this Court. Employer then filed its notice of appeal on August 27, 2007.

In his first point on appeal, Claimant asserts the Commission erred in reversing the ALJ's award of costs and attorney's fee in his favor and in denying him additional costs associated with Employer's appeal to the Commission because the Commission acted in excess of its powers. He maintains "the regulations governing the Commission do not allow it to review the issue of costs when the award in question is a temporary or partial order."

In his second point on appeal, Claimant maintains that "[e]ven if the Commission had authority to review the issue of costs," it erred in reversing the ALJ's "award of costs and attorney's fees and in denying [his] motion for additional costs associated with [Employer's] appeal to the Commission," because "the Commission's actions were not supported by competent and substantial evidence, in that the overwhelming weight of the evidence presented shows that [Employer] acted unreasonably in denying liability and defending against [Claimant's] claim."

In its cross-appeal, Employer maintains in its first point relied on that "[t]he Commission erred in finding that [Claimant] sustained an accident arising out of and in the course of his employment," because there was not substantial and competent evidence in the record supporting the Commission's findings and such findings were "contrary to the overwhelming weight of the evidence which showed that [Claimant] was on a personal deviation at the time of his accident." In its second point, Employer posits Commission error in the Commission's findings that Claimant had provided proper, written notice of his accident to Employer within the time allotted by law; thus, Employer maintains this lack of timely, written notice prejudiced Employer.

As previously related, Employer has filed its "Motion to Dismiss Appeal of [Claimant] For Lack of Appellate Jurisdiction." The Court takes up Employer's motion to dismiss and determines it has merit and, accordingly, dismisses Claimant's appeal. The Court also takes up Employer's points on appeal and determines they lack merit.

In its motion to dismiss, Employer maintains that appeals to this Court are authorized pursuant to section 287.495.1⁴ from a "final award of the [C]ommission" and there is no statutory authority which allows an appeal from a temporary or partial award based on the specific claims raised by Claimant. We agree.

It has long been held that courts of appeal have no appellate jurisdiction in workers' compensation cases except "as expressly conferred by statute." Bolden v. Schnucks Markets, Inc., 167 S.W.3d 226, 228 (Mo.App.2005).

Section 287.495 authorizes an appeal from the final award of the Commission to the appellate court. A final award is one which disposes of the entire controversy between the parties. An order lacks finality where it remains tentative, provisional, contingent, subject to recall, revision or reconsideration by the issuing agency. No appeal lies from a temporary or partial award made pursuant to section 287.510.

Alcorn v. McAninch Corp., 236 S.W.3d 111, 114 (Mo.App.2007) (internal citations and quotations omitted); see also Petelik v. Motor Control Specialists, 190 S.W.3d 517, 520 (Mo.App.2006). However, there are two exceptions to this rule. See Dennis v. H & K Machine Service Co., 186 S.W.3d 484, 486 (Mo.App.2006). "First, [an appeal may be taken] where an award designated `temporary and partial' is not entered pursuant to section 287.510 but is an award of permanent total disability pursuant to section 287.200.2." Alcorn, 236 S.W.3d at 114; see Dennis, 186 S.W.3d at 486. This exception is not relevant to the present matter.

"The second exception states, as a general rule, that an appellate court may review the issue of the employer's liability where an employer claims it is not liable for paying any compensation and is disputing all liability." Alcorn, 236 S.W.3d at 115 (emphasis added). "[I]t has been stated, 'a court can review the issues on which liability turns, such as notice or whether an employee's injuries are work-related.'" Id. (quoting Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 398 (Mo. App.1996)).

This second exception derives from the procedure set forth in 8 C.S.R. 20-3.040.[⁵] This regulation provides for prompt review by the Commission, on issues of liability, from temporary or partial orders of [ALJs]. The regulation allows a party to file an application for review with the Commission after the issuance of a temporary or partial award by the ALJ, upon the ground that the party is not liable for payment of any compensation.

Muller v. St. Louis Housing Authority, 175 S.W.3d 191, 194-95 (Mo.App.2005).

In examining Employer's motion to dismiss, we begin by exploring the points relied on in the present matter to determine whether they raise issues within the purview of this Court's statutory authority. Claimant's first point challenges the Commission's authority to review the issue of costs when the award arises from a temporary or partial order. Likewise, in his second point, Claimant maintains that even if the Commission had authority to review the issue of costs, it erred in reversing the ALJ's award because its actions were not supported by competent and substantial evidence.

Based on the points asserted, we determine this Court does not have jurisdiction to review Claimant's assertion. As recited in Alcorn, 236 S.W.3d at 114, appellate courts may only review temporary or partial orders of the Commission under two scenarios: where the award of permanent or total disability pursuant to section 287.200.2 is at issue or when the issue is of the employer's liability and "an employer claims it is not liable for paying any compensation and is...