Wolter v. Hannibal Regional Hospital

121 S.W.3d 259, 2003 Mo. App. LEXIS 1843

• Court: Missouri Court of Appeals
• Decided: November 25, 2003
• Docket: No. ED 83561
• Status: Published

Opinion

SHERRI B. SULLIVAN, Chief Judge.

Margaret Wolter (Claimant) appeals from an order of the Labor and Industrial Relations Commission (Commission) denying her application for review as untimely. We dismiss the appeal for lack of jurisdiction.

A deputy of the Division of Employment Security (Division) determined that Claimant was disqualified from unemployment benefits because her employer discharged her from work for misconduct connected with work. Claimant filed a timely appeal with the Appeals Tribunal, which mailed to her a Notice of Telephone Hearing. Claimant failed to follow the instructions on the notice, and as a result, the Appeals Tribunal dismissed her appeal. On August 8, 2003, the Appeals Tribunal mailed its decision to Claimant. On September 11, 2003, Claimant filed an application for review with the Commission. The Commission denied Claimant’s application for review because it was untimely under Section 288.200.¹ Claimant now appeals to this Court.

In response to Claimant's appeal, the Division has filed a motion to dismiss the appeal. The Division contends that Claimant’s untimely appeal to the Commission divested both the Commission and this Court of jurisdiction to consider her appeal. Claimant has not filed a response to the Division’s motion.

Section 288.200.1 gives a claimant thirty days following the mailing of the Appeals Tribunal decision to file an application for review with the Commission. The Appeals Tribunal mailed its decision to Claimant on August 8, 2003. Therefore, Claimant’s application for review was due by September 7, 2003, within thirty days of the mailing of the Appeals Tribunal decision. Because September 7, 2003 was a Sunday, Claimant actually had until September 8, 2003 to file her application for review. Section 288.240. Claimant filed her application for review with the Commission on September 11, 2003. Accordingly, Claimant’s application for review was untimely.

Claimant’s failure to timely file her application for review with the Commission divested both the Commission and this Court of jurisdiction. McAtee v. Bio-Medical Applications of Missouri, Inc., 87 S.W.3d 894, 895 (Mo.App. E.D.2002). The procedures outlined for appeal by statute in unemployment security cases are mandatory. Id. Additionally, Section 288.200 provides no mechanism to seek a special order to file a late application for review. Id.

The Division’s motion to dismiss is granted. Claimant’s appeal is dismissed for lack of jurisdiction.

LAWRENCE E. MOONEY, J., and GEORGE W. DRAPER III, J„ concur.

1 . All statutory references are to RSMo. (2000), unless otherwise indicated.