Western District Agrees: No Appeals Until There is a Final Award

The Missouri Court of Appeals for the Western District has weighed in on a growing issue in the arena of worker's compensation law in the State of Missouri. That Court reached the same conclusion that the Missouri Supreme Court reached in Abrams v. Ohio Pac. Express: employers have no right to appeal the granting of a temporary award by an administrative law judge.

In Motor Control Specialties, Inc v. Labor and Industrial Relations Commission, 323 S.W. 3d 843 (Mo. App. WD 2010), the Court rejected the arguments of the employer that the regulation which did not allow such appeals was, among other things, inconsistent with state statutes and a violation of their right to due process. The Court relied on Abrams in finding that the regulation was not inconsistent with the statute.

As far as whether the regulation violated due process, the Court held that "intermediate decision-making steps within the agency, before decision become final, are constitutionally permissible. It is only after an administrative decision is final that intervening steps between judicial review become unconstitutional because they preclude direct review of that final decision. The regulation only addresses intermediate decision-making before the decision becomes final. Thus the regulation is constitutional because it does not thwart judicial review of a final decision." Motor Control, 852.

The worker's compensation plaintiff's attorney in me likes this decision, obviously. It means that should an ALJ make a temporary award, my client should not have to wait while that decision is appealed in order to get the compensation the ALJ has determined is warranted.

However, there is another part of me, I guess the law student part of me, that has a real problem with this decision. A temporary award represents an award of compensation to an injured worker. This means that the employer's insurance company is going to have to pay the injured worker pursuant to that award. I have a hard time with a system that does not allow for a party to appeal to a higher tribunal when that party now has an obligation to pay based on a decision of a judge in a lower tribunal.

The plaintiff's attorney in me is also concerned about the ramifications of the lack of review. What if a temporary award is granted improperly? This means the employer could argue that my client received monies they were not entitled to. Will they then look to my client for reimbursement of the temporary award payments?

I certainly don't profess to have an easy answer to this problem created by the statutes and regulations as they are currently written. Perhaps the best answer would be to re-write them to make them clear and remove some of the ambiguities, but even then it would not be likely that they would change the reg to allow for the appeal of temporary awards. They would likely simply make it even more clear that such appeals are not allowed.

Perhaps the agency and legislature should consider allowing for the employer to appeal the temporary award to the Labor and Industrial Relations Commission, but make them do so in a quick fashion to avoid delay of valid payments. Also, subject them to penalties should their appeal be denied (such as payment of interest or attorney's fees on the temporary award should their appeal be denied). This would hopefully provide an incentive to the employers to only appeal those temporary awards that are truly unjust.

The more I thought about this issue, the more I felt like that guy with the two angels on his shoulders. In one ear I am hearing one thing, and the complete opposite in the other ear. Maybe some of you can give me some insight to sway me one way or the other.