                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 Commission’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 Excavating, Inc. (“Employer”). The Employer

appealed to the Appeals Tribunal on the grounds that Claimant was not available for

work. The Appeals Tribunal was concerned that 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 appeal and testimony from both parties as to Claimant’s

availability for work. The Appeals Tribunal concluded that the notice of appeal was not
valid and dismissed the appeal. It made no determination as to the merits of Employer’s

appeal.

          On Employer’s application for review, the Commission concluded that

Employer’s notice of appeal to the Appeals Tribunal was lawful and timely. Although it

had the record of the Appeals Tribunal hearing 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 remanded the matter back to the Appeals Tribunal

with directions to review the transcript and issue a new decision 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 lawful. That motion was denied,

and this appeal follows. There has been no response to this appeal 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). Thereunder, only final decisions of an

administrative officer are reviewable.      Article 5, Section 18 (“All final decisions,

findings, rules and orders on any administrative officer or body . . . 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 decision of the commission has become final”) (emphasis

added). A decision is final for appeal purposes when “the agency arrives 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, revision 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 Relations Commission 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) (Commission determination that workers’

compensation settlement approved by ALJ 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 remanding 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, not independent contractors, for purposes of

Employment Security Law. Id. at 875. The employer appealed, but the Appeals Tribunal

determined the appeal was untimely and therefore 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 Commission were timely and remanded to the

Commission to make the appropriate findings as to the merits of the employer’s claim.

Id. at 876. On appeal, the appellate court concluded that the circuit court’s remand order
                                             3
was not final. Id. The court distinguished its situation from one in which a remand is

ordered after a determination of the merits:

       In the instant case there has been no decision on the merits. The circuit
       court reversed the decision of the Commission and determined that [the
       employer’s] appeal was timely filed. Finding the appeal timely filed, the
       circuit court remanded the cause for a determination of the merits, i.e.,
       whether the alleged workers were independent contractors or employees
       under the applicable statute.

Id. (comparing cases where decision is reversed 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 was not available for work. As the Commission

pointed out, the parties have not yet received 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 reason 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.


                                               4
