Court of Appeals of Missouri, Southern District, First Division
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
Home Care, Inc. ("Employer") is attempting to
appeal the decision of the Labor and Industrial Relations
Commission ("Commission") confirming an
administrative law judge's "AMENDED
TEMPORARY AWARD" of workers' compensation
"temporary total disability" benefits to Lisa Leech
("Claimant"). In its request to the Commission for
review, Employer emphasized that it is denying all liability.
filed a motion to dismiss the appeal on the ground that no
statutory authority allows this Court to review an award of
temporary or partial benefits. Because the prior decisions of
this court support that assertion, we grant Claimant's
motion and dismiss the appeal.
authority to grant an award of temporary or partial benefits
is set forth in section 287.510,  which states:
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
the parties agreed, and the Commission found, that the
instant award was made pursuant to section 287.510. In
workers' compensation cases, the right to appeal springs
from section 287.495, which authorizes appeals from a final
award of the Commission. Korte v. Fry-Wagner Moving &
Storage Co., 922 S.W.2d 395, 397 (Mo. App. E.D. 1996).
There is no statutory authority for an appeal from a
temporary or partial award made pursuant to section 287.510.
Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 343
(Mo. banc 1991); Norman v. Phelps Cty. Reg'l Med.
Ctr., 256 S.W.3d 202, 205 (Mo. App. S.D. 2008).
affirming Employer's liability, the Commission
specifically found that the award was only
"temporary" and "subject to further
order[.]" Moreover, the proceedings were "kept open
until a final award [could] be made." "Pursuant to
section 287.495, a 'final award' is one which
disposes of the entire controversy between the parties."
Edwards v. Zweifel, 498 S.W.3d 860, 862 (Mo. App.
E.D. 2016). All three districts of this court have held that
an order lacks finality when it remains tentative,
provisional, or contingent, subject to recall, revision, or
reconsideration by the Commission. Williams v.
Tyson Foods, Inc., 530 S.W.3d 522, 524 (Mo. App. W.D.
2017); Norman, 256 S.W.3d at 203-04; Petelik v.
Motor Control Specialists, 190 S.W.3d 517, 520 (Mo. App.
recognizes Norman and Bolen v. Orchard Farm R-V
School District, 291 S.W.3d 747 (Mo. App. E.D. 2009), in
its suggestions opposing Claimant's motion to dismiss the
appeal, but it argues that these cases were wrongly decided.
In its reply brief, Employer argues that
[w]hile [section] 287.495.1 does discuss final Awards
becoming conclusive, the term final Award is clearly and
intentionally absent from the next sentence in which the
legislature grants the appellate court jurisdiction to review
"all decisions of the Commission pursuant to this
chapter where the Division has original jurisdiction over the
This precise argument was directly rejected in
Bolen, 291 S.W.3d at 750-51.
also cites tit. 8 C.S.R., section 20-3.040, which provides
that an aggrieved party may apply to the Commission for
review of a temporary or partial award "upon the ground
that the applicant is not liable for payment of any
compensation[.]" In Employer's view, this regulation
"clearly anticipate[s] a temporary or partial Award
being appealed if any party feels aggrieved by the actions of
the administrative law judge in the instance in which they
believe they are not liable for the payment of any
compensation." The claim that this regulation
"expressly permits review of temporary or partial awards
on the issue of liability" was also rejected in
Bolen, 291 S.W.3d at 750. More importantly, the
reliance upon any administrative regulation is futile as
"the scope of appellate review [is limited] to that
which is strictly granted by statute[.]"
Norman, 256 S.W.3d at 205.
287.495 and 287.510 do not authorize this court to review a