Lewis v. Container Port Group

• Decision Date: 15 March 1994
• Docket Number: No. 64708,64708
• Citation: 872 S.W.2d 134
• Parties: Paul LEWIS, Employee/Respondent, v. CONTAINER PORT GROUP, Employer/Appellant, and Employers' Insurance of Wausau, Insurer/Appellant.
• Court: Missouri Court of Appeals

Page 134

872 S.W.2d 134

Paul LEWIS, Employee/Respondent, v. CONTAINER PORT GROUP, Employer/Appellant, and Employers' Insurance of Wausau, Insurer/Appellant.

No. 64708.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 15, 1994.

Ernest F. Brasier, Law Office of Mark R. Rudoff, St. Louis, for employer-appellant.

Burton A. Librach, Librach & Rothman, Clayton, for employee-respondent.

CRANE, Presiding Judge.

Employer/insurer appeals from the Labor and Industrial Relations Commission's order dismissing employer/insurer's Application for Review of Temporary or Partial Award. We dismiss this appeal for lack of jurisdiction.

On April 27, 1990 claimant, Paul Lewis, an independent tractor-trailer driver, was injured while driving a truck for employer Container Port Group. In June, 1990 claimant filed a claim for compensation under the Missouri Workers' Compensation Act against employer and insurer, Wausau Insurance Co., for injuries to his "back, right knee, headaches, neck & nervous."

An Administrative Law Judge (ALJ) heard this claim on June 8, 1992. The parties agreed that the disputed issues at the hearing were: medical causation, future medical care, nature and extent of temporary total disability, and nature and extent of permanent partial disability.

On September 2, 1992, the ALJ issued a "Temporary or Partial Award," which recited in part:

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

The ALJ found that claimant's low back, neck and right knee injuries and his symptoms of Post Traumatic Stress Disorder were caused by the April 27, 1990 accident, but that his headaches and vision problems were not caused by the accident. She found that claimant was suffering from Obstructive Sleep Apnea and that it was aggravated or accelerated by the accident. She found that claimant was paid temporary total disability benefits from the date of the accident through August 2, 1990 and that he was no longer entitled to further benefits for the low back, neck and right knee injuries or for the Post Traumatic Stress Disorder.

She further found that claimant is "temporarily totally disabled as a result of his Obstructive Sleep Apnea." She ordered the employer to pay temporary total disability benefits from December 10, 1990 to the time of the award and for an undetermined number of additional weeks. Because of the need for ongoing treatment, the ALJ found she could not determine the extent of permanent partial disability.

On September 16, 1992 employer/insurer filed an Application For Review with the Commission. In the Application for Review, employer/insurer alleged that the ALJ's award was erroneous because:

Although [Claimant's obstructive sleep apnea] may have been mildly aggravated by the accident, the accident did not cause claimant's obstructive sleep apnea, nor did the accident cause claimant's obstructive sleep apnea to escalate to the level of disability. Claimant's obstructive sleep apnea would have progressed to its present, disabling severity had claimant not been in the accident.

On September 13, 1993 the Commission dismissed employer's/insurer's Application for Review pursuant to 8 CSR 20-3.040 ¹ because it found that "The employer/insurer are not denying any and all liability, just that portion of the award which pertains to sleep apnea." The Commission's order went on to state:

The Commission construes the above rule [8 CSR 20-3.040] as requiring an allegation that the employer/insurer deny all liability, not just liability for a portion of the award. The rule also is not intended to allow review of the nature and extent of a temporary award. The Commission having fully considered the Application for Review filed in this cause and pursuant to the above-cited rule finds it inappropriate at this time to review the temporary or partial award issued by the administrative law judge. Wherefore, the Commission finds that said Application for Review of the Temporary or Partial Award must be and is hereby dismissed. The cause is remanded to the Division of Workers' Compensation for any further proceedings as are necessary. (Emphasis in original).

Claimant urges that we have no jurisdiction to review the Commission's action because it has not issued a final award. We agree.

Here, the ALJ made a temporary or partial award, for temporary total disability benefits, leaving open the determination of the extent of permanent partial disability. Section 287.510, RSMo 1986, provides for temporary or partial awards which may be modified and may be kept open until a final award can be made.

The decisions appealable in workers' compensation proceedings are only those expressly declared to be appealable by statute. Blanford v. Robinett's Motor and Truck Service, Inc., 865 S.W.2d 874, 876 (Mo.App.1993). The Missouri constitution, art. 5, § 18 provides that all final decisions of administrative officers or bodies are subject to direct judicial review. Section 287.495, RSMo 1986, provides that the final awards of the Commission may be appealed to the Missouri court of appeals.

Finality is found when the agency arrives at a terminal, complete resolution of the case before it. Blanford, 865 S.W.2d at 876...