Lisa Ann Powell, Claimant/Appellant v. Catholic Charities of St. Louis and Division of Employment Security, Respondents.

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: Lisa Ann Powell, Claimant/Appellant v. Catholic Charities of St. Louis and Division of Employment Security, Respondents. Case Number: ED88352 Handdown Date: 09/26/2006 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Lisa Ann Powell, Pro Se Counsel for Respondent: Larry Raymond Ruhmann Opinion Summary:

Lisa Ann Powell appeals from the decision of the Labor and Industrial Relations Commission denying her claim for unemployment benefits. REMANDED WITH DIRECTIONS. Division Five holds: The case must be remanded to the Commission to hold a hearing and make findings of fact regarding the date on which Claimant's notice of appeal is deemed filed in accordance with section 288.240, because Claimant sent her notice of appeal by United States Postal Service, but it failed to contain a postmark and Claimant asserts the notice of appeal was timely mailed. Citation: Opinion Author: Booker T. Shaw, Chief Judge Opinion Vote: REMANDED WITH DIRECTIONS. Norton, J., and Cohen, J. concur. Opinion:

Opinion of August 29, 2006 is withdrawn. New opinion follows. Lisa Ann Powell (Claimant) appeals from the Labor and Industrial Relations Commission's (Commission) decision denying her claim for unemployment benefits. The Division of Employment Security (Division) originally filed a motion to dismiss the appeal for lack of a timely notice of appeal. Claimant has filed suggestions in opposition to the motion. The Division subsequently filed a motion to remand the case to the Commission. A deputy for the Division initially determined that Claimant was disqualified for unemployment benefits after concluding that she was discharged from her employment for misconduct connected with her work. The Appeals Tribunal affirmed this determination with a slight modification. The Commission affirmed the decision of the Appeals Tribunal by order mailed to the parties on June 5, 2006. The Commission received Claimant's notice of appeal to this Court from the United States Postal Service on July 10, 2006, but the envelope had no postmark. The Commission's secretary noted on the notice of appeal form that she received the notice of appeal on July 10, 2006. Section 288.210, RSMo 2000, requires that the notice of appeal to this Court from the Commission's decision be filed within twenty days of decision becoming final. The Commission's decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. In this case, Claimant's notice of appeal was due on July 5, 2006. Sections 288.200.2, 288.210. Section 288.240, RSMo 2000, provides that any notice of appeal "when mailed to and received by . . . the commission, be deemed to be filed as of the date endorsed by the United States post office on the envelope or container in which such paper is received." The record on appeal shows only that Claimant mailed the notice of appeal, but the envelope does not contain a postmark. The Division has requested a remand to determine the date of filing of the notice of appeal. In her response, Claimant stated that she mailed the notice of appeal on July 5, 2006. This case is identical to a recent case handed down by the Southern Division. In Dixon v. Stoam Industries, Inc., No. SD27407 (Mo. App. S.D., filed July 24, 2006), the Southern Division was unable to determine if the claimant's notice of appeal was timely because the envelope failed to contain a postmark. The court noted that the date the Commission actually receives the notice of appeal is the date of filing, unless section 288.240 mandates an earlier date within which to deem the notice of appeal filed. Id., slip op. at 1. Relying upon cases in the workers' compensation arena, the court concluded that the claimant was entitled to prove, if possible, the date on which the notice of appeal was or should have been actually postmarked and placed in the mail. Id., slip op. at 3. The court remanded the case to the Commission to determine the date on which the claimant's notice of appeal was deemed filed. Id., slip op. at 4.

We believe the decision in Dixon is the appropriate course of action in this case. The Division's motion to remand is granted.(FN1) We remand this case to the Commission with directions to hold a hearing and make findings of fact regarding the date on which Claimant's notice of appeal is deemed filed in accordance with section 288.240, and to certify the date of such filing to this Court. Footnotes: FN1.The motion to dismiss and this appeal are stayed pending the certification by the Commission of the date of the filing of Claimant's notice of appeal. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.