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Nisbett v. Tri-State Motor Transit

Missouri Court of Appeals, Southern District
May 3, 2001
45 S.W.3d 545 (Mo. Ct. App. 2001)

Summary

dismissing appeal where the Commission, on review of an ALJ's decision denying all benefits, entered an “Order Remanding to Allow Record to be Supplemented” to permit the claimant to depose a medical witness

Summary of this case from Grauberger v. Atlas Van Lines, Inc.

Opinion

No. 23977

May 3, 2001

APPEAL FROM LABOR AND INDUSTRIAL RELATIONS COMMISSION.

Ronald G. Sparlin, Counsel for Appellant.

No brief filed by Respondent, Counsel for Respondent.


Opinion:


After hearing, an associate administrative law judge entered an award denying any workers' compensation benefits to the Employee because he failed to introduce into evidence any medical testimony or records establishing that his heart problems were related to his employment.

Employee sought review by the Labor and Industrial Relations Commission ("Commission"). The Commission issued an "Order Remanding to Allow Record to be Supplemented," and remanded the matter to the Division of Workers' Compensation ("Division") to allow Employee the opportunity to depose Dr. Russell Allen. Employer appeals.

The Court of Appeals has no appellate jurisdiction in a workers' compensation case except as expressly conferred by statute. Martin v. Jet Envelope, Inc ., 943 S.W.2d 321, 322 (Mo.App. 1997). Section 287.495, RSMo Supp. 1998, provides that final awards may be appealed; such an award is one that disposes of the entire controversy between the parties. Id . See also Smith v. Smiley Container Corp ., 997 S.W.2d 126, 128 n. 1 (Mo.App. 1999). What may be considered an exception to this rule is that there may be appellate review on the issue of liability, although an award is denominated "temporary or partial." Cahall v. Cahall , 963 S.W.2d 368, 371 (Mo.App. 1998). See also Korte v. Fry-Wagner Moving Storage Co ., 922 S.W.2d 395, 398 (Mo.App. 1996) (recognizing two situations where courts have looked behind an award designated "temporary or partial" to determine if it is in fact a final award for the purpose of appeal).

In Korte , following a temporary or partial award, the administrative law judge ordered that the employer and insurer conduct further medical tests and provide the results of the tests to the tribunal. The Commission affirmed and adopted the award and order. The employer-insurer appealed, challenging the Commission's authority to provide for further medical tests. On appeal, the Court of Appeals determined that this type of award was not reviewable on appeal and the appeal was dismissed. 922 S.W.2d at 398.

Appeal in a workers' compensation matter lies from a final award of the Commission. Section 287.495, RSMo Supp. 1998. There is no final award by the Commission here and none of the exceptions referred to above apply. Therefore, no appeal lies.

The appeal is dismissed.

GARRISON, J., and RAHMEYER, J., concur.


Summaries of

Nisbett v. Tri-State Motor Transit

Missouri Court of Appeals, Southern District
May 3, 2001
45 S.W.3d 545 (Mo. Ct. App. 2001)

dismissing appeal where the Commission, on review of an ALJ's decision denying all benefits, entered an “Order Remanding to Allow Record to be Supplemented” to permit the claimant to depose a medical witness

Summary of this case from Grauberger v. Atlas Van Lines, Inc.

dismissing appeal where the Commission, on review of an ALJ decision denying all benefits, entered an "Order Remanding to Allow Record to be Supplemented," to permit the claimant to depose a medical witness

Summary of this case from Jackson v. Stahl Specialty Co.

In Nisbett the commission issued an "Order Remanding to Allow Record to be Supplemented," whereas here the commission issued an "ORDER (Reversing Decision of Administrative Law Judge and Remanding for Hearing)."Nisbett, 45 S.W.3d at 545.

Summary of this case from Smith v. Semo Tank & Supply Co.

In Nisbett, the Southern District dismissed the employer's appeal from an order issued by the commission which remanded the matter to the Division of Worker's Compensation to allow the claimant the opportunity to depose an expert witness in order to establish his injury was work related.

Summary of this case from Smith v. Semo Tank & Supply Co.
Case details for

Nisbett v. Tri-State Motor Transit

Case Details

Full title:Thomas J. Nisbett, Employee/Respondent v. Tri-State Motor Transit…

Court:Missouri Court of Appeals, Southern District

Date published: May 3, 2001

Citations

45 S.W.3d 545 (Mo. Ct. App. 2001)

Citing Cases

Smith v. Semo Tank & Supply Co.

Korte v. Fry-Wagner Moving Storage Co., 922 S.W.2d 395, 398 (Mo.App.E.D. 1996). Claimant cites the Southern…

Jackson v. Stahl Specialty Co.

Similarly, this Court has no appellate jurisdiction to review a Commission decision which remands a workers'…