# In the Missouri Court of Appeals **Eastern District** DIVISION TWO JOHN FOWLER, ) No. ED100599 ) Respondent, ) Appeal from the Labor and ) Industrial Relations Commission vs. ) ) T. J. AHRENS EXCAVATING, INC., ) ) Respondent, ) and ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Filed: Appellant. ) May 20, 2014
The Division of Employment Security appeals the order of the Labor and Industrial Relations Commission. The Commissi on’s decision is not final, and we must dismiss the appeal The Division determined that John Fowler (“Claimant”) was eligible for unemployment benefits from T.J. Ahrens Ex cavating, Inc. (“Employer”). The Employer appealed to the Appeals Tri bunal on the grounds that Clai mant was not available for work. The Appeals Tribunal was concerned th at the appeal may not have been filed by an authorized party and set a hearing to decide whether the appeal was lawful and to determine Claimant’s eligibility. At the hearing, there was testimony regarding the validity of the notice of a ppeal and testimony from both parties as to Claimant’s availability for work. The Appeals Tribunal concluded that the notice of appeal was notvalid and dism issed the appeal. It made no de termination as to the merits of Employer’s appeal. On Employer’s application for re view, the Commission concluded that Employer’s notice of appeal to the Appeals Tribuna l was lawful and timely. Although it had the record of the Appeals Tribunal hear ing containing evidence regarding the merits of the appeal, the Commission did not want to “deprive the parties of one level of administrative review.” Therefore, it rema nded the matter back to the Appeals Tribunal with directions to review th e transcript and issue a new d ecision solely on the merits. The Division filed a motion to the Commission asking it to reconsider its determination that the notice of appeal to the Appeals Tribunal was lawf ul. That motion was denied, and this appeal follows. There has been no response to this a ppeal by Claimant or Employer. In an unemployment compensation case, appellate review of the Commission’s decision is governed by Article 5, Section 18 of the Missouri Constitution and Section 288.210 of the Missouri Revised Statutes. Sanders v. Division of Employment Security , 392 S.W.3d 540, 542 (Mo. App. W.D. 2013). Ther eunder, only final decisions of an administrative officer are reviewab le. Article 5, Section 18 (“All final decisions, findings, rules and orders on an y administrative officer or b ody . . . shall be subject to direct review by the courts as provided by law”); Section 288.210 (a party may appeal “[w]ithin twenty days after a deci sion of the commission has become final ”) (emphasis added). A decision is final for appeal purpose s when “the agency a rrives at a terminal, complete resolution of the case before it. An order lacks finality in this sense while it remains tentative, provisional, or contingent, subject to recall, revi sion or reconsideration by the issuing agency.” Dore & Associates Contracting, Inc. v. Missouri Department of Labor & Industrial Relations Commission , 810 S.W.2d 72, 75 (Mo. App. W.D. 1990) 2(quoting National Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d 669, 671 (D.C.Cir.1983)). A Commission’s decision remanding a matter for a determination on the merits is not final and appealable. Labor and Indutrial Relati ons Comm issi on v. Hoffman , 825 S.W.2d 874, 875 (Mo. App. W.D. 1992); see also Smith v. Semo Tank & Supply Co. , 99 S.W.3d 11, 14 (Mo. App. E.D. 2002) (Commi ssion determination that workers’ compensation settlement approved by AL J was a nullity, remanding for hearing on merits, was not final).; Hickman v. Division of Employment Security , 448 S.W.2d 270, 273 (Mo. App. 1969) (circuit court order rema nding to Commission for reconsideration of merits in light of particular overlooked evidence was not final); Taylor v. Civil Service Commission of St. Louis County , 969 S.W.2d 763, 764-65 (Mo. App. E.D. 1998) (circuit court’s remand for further proceedings in Civil Service Commission for additional hearings on accuracy of drug tests in employee termination case was not final). “The logic behind such a rule is obvious, that being to avoid hearing appeals on a piecemeal basis. One appeal should suffice to determine all controverted issues.” Hoffman , 825 S.W.2d at 876. We find Hoffman to be the most instructive on this issue. There, the Division found that certain workers were employees, no t independent contract ors, for purposes of Employment Security Law. Id. at 875. The employer appeal ed, but the Appeals Tribunal determined the appeal was untimely and ther efore it had no authority to consider the merits. Id. On appeal, the Commission adopted the Appeals Tribunal’s findings, which was appealed to the circuit court. Id. at 875-76. The circuit court determined that the appeals to the Appeals Tribunal and the Co mmission were timely and remanded to the Commission to make the appropri ate findings as to the merits of the employer’s claim. Id. at 876. On appeal, the appellate court conc luded that the circuit court’s remand order 3was not final. Id. The court distinguished its situa tion from one in which a remand is ordered after a determin ation of the merits: In the instant case there has been no decision on the merits. The circuit court reversed the decision of the Co mmission and determined that [the employer’s] appeal was timely filed. Finding the appeal ti mely filed, the circuit court remanded the cause for a determination of the merits, i.e., whether the alleged work ers were independent c ontractors or employees under the applicable statute. Id. (comparing cases where decision is reve rsed and remanded on grounds it was not supported by substantial and competent evidence). The situation in this case is very similar to Hoffman . There has been no determination of the merits of Employer’s appeal. Although the Appeals Tribunal took evidence on the issue, neither it nor the Commission even addressed the substance of Employer’s claim, namely that Claimant wa s not available for work. As the Commission pointed out, the parties have not yet receive d any level of administrative review on the merits. The Commission’s remand is for the purpose of allowing the Appeals Tribunal to make that determination on the evidence it has already taken. It is in no way a terminal or complete resolution of the case before it. In this situation, an appeal is premature and would result in piecemeal resolution of this matter. There is no re ason one appeal will not suffice to determine all controverted issues in this case. The appeal is dismissed.

ROBERT G. DOWD, JR., Judge
Lawrence E. Mooney, P.J. and Sherri B. Sullivan, J., concur.

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