Teddy Ray Chapman, Employee/Respondent, v. Didion and Sons Foundry Company, Employer/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Teddy Ray Chapman, Employee/Respondent, v. Didion and Sons Foundry Company, Employer/Appellant. Case Number: ED79528 Handdown Date: 12/18/2001 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Robert Lee Hinson, III and Mary Anne Lindsey Counsel for Respondent: Timothy James Walk Opinion Summary: Didion & Sons Foundry Company appeals a labor and industrial relations commission order reinstating the workers' compensation claim of Teddy R. Chapman and remanding for an evidentiary hearing, after an administrative law judge had dismissed the claim for failure to prosecute. On appeal, Didion & Sons argues that the commission lacked jurisdiction to enter its order because Chapman's application for review requesting such relief was untimely. DISMISSED. Division Three holds: This court lacks appellate jurisdiction over Didion & Sons' appeal at the present time, because the commission's order is not a final award. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: DISMISSED. Crandall, Jr., and Ahrens, JJ., concur. Opinion: Didion & Sons Foundry Company ("Employer") appeals from an order of the Labor and Industrial Relations Commission ("Commission") which reinstated the workers' compensation claim of Teddy R. Chapman ("Claimant") after an administrative law judge dismissed the claim for failure to prosecute. Employer argues on appeal that the Commission

lacked jurisdiction to enter its order because Claimant's application for review seeking such relief was untimely filed. Because the order that is the subject of Employer's appeal is not a final award, we lack appellate jurisdiction and accordingly dismiss the appeal. Background Claimant filed a claim for compensation alleging that he had sustained injuries to his eyes and face while repairing a machine at Employer's plant. On December 14, 2000, after Claimant failed to appear at a scheduled hearing, the ALJ issued an order dismissing his claim for failure to prosecute. Approximately three months later, Claimant filed an application for review with the Commission seeking to have the ALJ's Order of Dismissal set aside. The application for review alleged, inter alia, that Claimant had been unable to attend the scheduled hearing because at the time he had been incarcerated in the St. Charles County jail. On April 14, 2001, the Commission entered its order in this matter. After an analysis of relevant case law, the Commission concluded that although a workers' compensation claim may not be dismissed for failure to prosecute solely because a claimant is incarcerated and unable to attend a scheduled hearing, an incarcerated claimant nevertheless "has an obligation to prosecute his claim with the tools that he has available, and if represented, then through his counsel." The Commission further found that in his application for review Claimant had "allege[d] facts, which if true, may constitute good cause for the failure to participate in the scheduled hearing and for filing his Application for Review in an untimely manner." The Commission specifically noted that its review of the file indicated that Claimant may not have received notice of the Order of Dismissal, in that a copy of the certified envelope was marked "return to sender." Accordingly, the Commission, citing Eighmy v. Tandy/O'Sullivan Industries, 867 S.W.2d 688, 691 (Mo. App. S.D. 1993), remanded the matter to the Division of Workers' Compensation for an evidentiary hearing. The Division was ordered at the remand hearing "to fully develop the facts" regarding (1) the failure of Claimant to appear at the scheduled hearing, (2) whether Claimant or his counsel notified the Division of his incarceration, (3) whether Claimant or his counsel requested a postponement of the matter, (4) what efforts, if any, Claimant or his counsel had made to prosecute the claim prior to the Order of Dismissal, (5) the circumstances leading to dismissal of the claim for failure to prosecute, and (6) when Claimant received notice of the Order of Dismissal. Employer appeals from the Commission's order. Discussion In its sole point on appeal, Employer contends the Commission lacked jurisdiction to do anything other than dismiss Claimant's application for review because the application was untimely under section 287.480 RSMo (2000), in

that it was filed more than twenty days after the ALJ's award.(FN1) Relying upon our holdings in Knuckles v. Apex Industries, 762 S.W.2d 542, 543 (Mo. App. E.D. 1988) and Merritt v. Shoney's, Inc., 925 S.W.2d 494, 495 (Mo. App. E.D. 1996), Employer argues that the timely filing of an application for review is jurisdictional, and that the statute does not allow a good cause exception for filing out of time. Before we may consider the merits of this claim, however, we must first determine whether we have appellate jurisdiction. Beckmann v. Miceli Homes, Inc., 45 S.W.3d 535, 538 (Mo. App. E.D. 2001). We conclude that we do not. Only a "final award" of the Commission is appealable. Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397 (Mo. App. E.D. 1996). On September 4, 2001, this Court issued an order in the instant case noting that the Commission's order of April 14, 2001 does not appear to be a final award, and directing Employer to file a memorandum of law addressing this jurisdictional issue. In response, Employer has filed a memorandum which essentially argues that the Commission's order must be appealable if it was entered without jurisdiction. However, appellate jurisdiction in workers' compensation cases is expressly limited by statute, and the mere fact that an order of the Commission may arguably have been entered without jurisdiction would not make the order appealable if it is not a final award.(FN2) See Korte, 922 S.W.2d at 397. The Commission's order here is not a final award, because it does not dispose of the entire controversy between the parties. Id. Accordingly, the appeal herein is dismissed. Footnotes: FN1. A dismissal of a claim for failure to prosecute is an award, subject to review and appeal in the same manner as other workers' compensation awards. Shelton v. Missouri Baptist Medical Center, 998 S.W.2d 832, 834 (Mo. App. E.D. 1999). FN2. Employer has not challenged the Commission's jurisdiction to enter the complained of order by means of seeking a writ of prohibition. See State ex rel. Famous Barr Co. v. Labor and Indus Relations Commission, 931 S.W.2d 892, 893 (Mo. App. W.D. 1996), overruled on other grounds, Farmer v. Barlow Truck Lines, 979 S.W.2d 169, 170 (Mo. banc 1998). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.