White v. Anderssen Mobile X–Ray Serv.

• Citation: 389 S.W.3d 222
• Decision Date: 18 December 2012
• Docket Number: No. ED 98181.,ED 98181.
• Parties: Maria WHITE, Respondent, v. ANDERSSEN MOBILE X–RAY SERVICE, Appellant.
• Court: Court of Appeal of Missouri (US)

389 S.W.3d 222

Maria WHITE, Respondent,

v.ANDERSSEN MOBILE X–RAY SERVICE, Appellant.

No. ED 98181.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 18, 2012.

Dale M. Weppner, Eric K. Eickmeyer, St. Louis, MO, for appellant.

Mark R. Bahn, Fenton, MO, for respondent.

LAWRENCE E. MOONEY, Presiding Judge.

The employer, Anderssen Mobile X–Ray Service, L.L.C., appeals the temporary or partial award of the Labor and Industrial Relations Commission wherein the Commission determined that the motor-vehicle accident involving the claimant, Maria White, arose out of and in the course of the claimant's employment, and that section 287.020.5 RSMo. (Supp.2011) ¹ does not bar compensation. The incident in question occurred after the 2005 amendments to the workers' compensation law. Under these constraints, we conclude that we are without jurisdiction to review the Commission's temporary or partial award, and we must dismiss the appeal.

The claimant worked as a staff technologist, and drove a minivan provided by the employer. She carried x-ray equipment in the minivan, and drove to each patient's location to take ordered x-rays for the patient. The claimant and the employer had a written agreement whereby the claimant was to begin her shift at the employer's office at 3:00 p.m. The agreement then expressly provided, however, that the claimant's “start time will be 30 minutes prior to arrival in the office.” The claimant and her former supervisor testifiedthat they understood the agreement to mean that the claimant was to call the office thirty minutes prior to her anticipated arrival at 3:00 p.m., and the dispatcher would let her know whether she should proceed to the office or proceed to a patient assignment to take x-rays.

On March 2, 2010, the claimant was driving to work in the employer's van. At 2:30 p.m. she called her employer's office, and the dispatcher told the claimant that the employer had no patient assignments for her at that time and that she should report to the employer's office. At about 2:55 p.m., a few blocks from the employer's office, another vehicle struck the rear of the van the claimant was driving. The employer acknowledged at oral argument that the claimant was on duty at the time of the accident. The claimant filed a claim for compensation, alleging injury to her neck, lower back, and left shoulder as a result of the March 2, 2010 motor vehicle accident.

As stipulated by the parties, the Administrative Law Judge (ALJ) held a hearing solely on the issue of whether the claimant's injury arose out of and in the course of her employment, or whether section 287.020.5 bars compensation.² The ALJ determined that the claimant's accident arose out of and occurred in the course of her employment because “[s]he was not simply driving from her home to [e]mployer's place of business. She was already working and fulfilling her job duties at the time of her accident.”

The Commission affirmed and supplemented the ALJ's decision. In a 2–1 decision, the Commission concluded that the claimant was not injured while traveling from her home to the employer's principal place of business, but instead while traveling from her required “call-in” or “check-in” point and the office. The Commission explained that the claimant was not traveling between “work and home” but rather between “work and work” when the accident occurred. The employer appeals.

The employer characterizes the Commission's award as a final award, but it is not. The Commission designated its award in this case as a temporary or partial award. The Commission expressly stated that the proceedings were continued and held open until a final award could be made, and referenced section 287.510.

“We have a duty to determine sua sponte whether we have jurisdiction to hear an appeal.” Bolen v. Orchard Farm R–V School Dist., 291 S.W.3d 747, 749 (Mo.App. E.D.2009). Section 287.510 provides that:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.Section 287.495 RSMo. (2000), the statutory source for appellate jurisdiction to review decisions issued under the Worker's Compensation Act, authorizes an appeal to this Court from a final award of the Commission. Bolen, 291 S.W.3d at 749. Before the Act's 2005 am...