Loren Wilson, Appellant, v. 3-M, Respondent, Second Injury Fund State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Loren Wilson, Appellant, v. 3-M, Respondent, Second Injury Fund State of Missouri, Respondent. Case Number: 53943 Handdown Date: 05/19/1998 Appeal From: Labor and Industrial Relations Commission of Missouri Counsel for Appellant: John B. Boyd, John R. Boyd and Michelle Daum Haskins Counsel for Respondent: Brian J. Fowler and Cara Lee Harris Opinion Summary: Loren Wilson filed a workers' compensation claim in 1991. In April 1995, an Administrative Law Judge dismissed Mr. Wilson's claim for failure to prosecute but then set aside that dismissal before the time had run for filing an appeal of that order. Mr. Wilson therefore did not appeal that dismissal. One and one-half years later, the ALJ determined he had acted beyond the scope of his authority in setting aside his dismissal, that the order purporting to set aside the dismissal was void, and that, because Mr. Wilson had not appealed the April 1995 dismissal within twenty days of its entry, he had waived his right to appeal. Mr. Wilson appealed to the Labor and Industrial Relations Commission, which agreed with the ALJ and held the appeal untimely. Mr. Wilson appeals. REVERSED AND REMANDED. Division III holds: Mr. Wilson first argues that the Commission erred because his motion to set aside the dismissal of his claim should have been treated as an Application for Review, based on a "Statement of Policy" issued by the Commission There is nothing in the record to show that the policy statement was in effect at the time of the dismissal, and the only inferences permissible from the record are to the contrary. Even if the policy statement was in effect, it states only that a motion to set aside that is filed with the Division but not acted upon within 20 days of the award will be considered an Application for Review. Here, Mr. Wilson did not file anything and a timely ruling was made, so the Statement of Policy does not apply by its own terms.

Mr. Wilson also argues that the Commission erred in denying his Petition for Review because his counsel did not receive proper notice of the hearing. This issue is raised for the first time on appeal, and we find no plain error here. Mr. Wilson received proper notice of the hearing by certified mail. The statute does not require notification of counsel but merely provides notification of counsel in the alternative. Here, no fault can be apportioned to the Division for failing to notify Mr. Wilson's attorney, when he had not entered a written appearance or given an address at which he could have received notification. Finally, Mr. Wilson argues that ALJs have implicit authority to set aside an award during the 20-day appeal period. The Court agrees. The Court held in Sheets v. Labor and Indus. Relations Comm'n, 622 S.W.2d 391 (Mo. App. 1991), that implicit in the legislature's grant of authority to an ALJ to make an award is the authority to set aside that award during the 20-day period before the time for appeal has run. Even the Division's regulations implicitly so recognize. In so holding, the Court does not suggest that an ALJ has the sort of equitable or inherent authority enjoyed by a judge of the circuit court. Instead, implicit in the legislature's grant of authority to ALJs to dismiss for failure to prosecute is the power to set aside that dismissal within the period provided for appeal of that dismissal. The Court rejects the Division's argument that, even if an ALJ would otherwise have such power, it is prohibited from setting aside its award by section 287.610.2. That statute only states that an ALJ "shall have no jurisdiction whatsoever upon any review hearing, whether in the way of an appeal from an original hearing or by way of reopening any prior award." The ALJ in this case did not conduct a review hearing when he set aside his prior dismissal within the 20-day period provided for appeal to the Commission. In so holding, the Court recognizes that it reaches a result contrary to that reached by the Eastern District of this Court in State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303 (Mo. App. 1996), and similar cases. Citation: Opinion Author: Laura Denvir Stith, Judge Opinion Vote: REVERSED AND REMANDED. Spinden, P.J., and Smith, J. concur. Opinion: Mr. Wilson filed a workers' compensation claim in 1991. In April 1995, an Administrative Law Judge (ALJ) dismissed Mr. Wilson's claim for failure to prosecute, but then set aside that dismissal before the time had run for filing an appeal of that order. One and one-half years later, the ALJ determined he had acted beyond the scope of

his authority in setting aside his dismissal, that the order purporting to set aside the dismissal was void, and that, because Mr. Wilson had not appealed the April 1995 dismissal within twenty days of its entry, he had waived his right to appeal. Mr. Wilson appealed to the Labor and Industrial Relations Commission (the Commission), which agreed with the ALJ and held the appeal untimely. Mr. Wilson appeals. Contrary to the Eastern District of this Court, we find that the ALJ did have authority under controlling statutes and regulations to set aside his dismissal during the twenty-day period for filing an appeal with the Commission. The statutes preclude the ALJ only from exercising review authority by hearing appeals or reopening cases; setting aside a dismissal during this limited time period does not constitute review. Accordingly, we reverse the Commission's decision and remand for further proceedings consistent with this opinion. I.FACTUAL AND PROCEDURAL HISTORY Loren Wayne Wilson filed a claim for compensation with the Missouri Division of Workers' Compensation in June 1991. An ALJ of the Division held a number of hearings between January 8, 1992, and March 15, 1995. Initially, Mr. Wilson was represented at these hearings by Darren J. Morrison. Mr. Morrison was allowed to withdraw on October 5, 1993. There were three hearings following Mr. Morrison's withdrawal at which Mr. Wilson failed to appear either by counsel or in person. At a hearing held on June 27, 1994, the minutes reveal that Mr. Wilson appeared in person and an entry indicates "Boyd." Appellant Wilson now claims that this was a reference to attorney John R. Boyd, and that the latter began representing him on that date. Mr. Boyd did not enter a written appearance and his name was not entered as Mr. Wilson's attorney on the Division's hearing minute sheet at that time, however. No doubt for this reason, on February 9, 1995, when the Division mailed notice of the upcoming March 15, 1995, hearing to Mr. Wilson by certified mail, it did not mail a copy of the notice to Mr. Boyd as Mr. Wilson's attorney. The notice clearly stated that if Mr. Wilson did not appear at the hearing, his "claim may be dismissed for want of prosecution." At the March 15, 1995 hearing, Mr. Wilson failed to appear either by counsel or in person. On April 6, 1995, the ALJ entered an order dismissing the claim for failure to prosecute. Mr. Wilson apparently informed Mr. Boyd of this dismissal, and Mr. Boyd orally requested that the ALJ set aside the dismissal. On April 19, 1995, within the twenty-day period provided for filing an Application for Review of the ALJ's decision with the Commission, the ALJ made an entry on the Division's minute sheet stating that the dismissal would be set aside for good cause shown. On May 19, 1995, Mr. Boyd formally entered his appearance with the Division as attorney

for Mr. Wilson. On October 1, 1996, the ALJ sent a letter to counsel canceling a previously scheduled hearing and explaining that he believed he had lost jurisdiction to proceed once he entered his order of dismissal on April 6, 1995, and that he had acted beyond his authority in later setting aside the dismissal. The ALJ closed the file for this reason by an order dated December 6, 1996. On December 17, 1996, Mr. Wilson filed an Application for Review with the Commission. On February 7, 1997, the Commission dismissed the Application for Review. It noted that Section 287.480,(FN1) requires a claimant dissatisfied with the ALJ's award to file an Application for Review within twenty days of the ALJ's award. Mr. Wilson filed his Application within twenty days of the ALJ's ultimate decision to close the file, but he did not file his Application within twenty days of the ALJ's original April 6, 1995, dismissal for failure to prosecute. Of course, he did not do so because the ALJ had set aside that dismissal just thirteen days later. The Commission determined, however, that the ALJ had lost jurisdiction over the case once he entered his order dismissing the case and, thus, the ALJ had no jurisdiction to set aside that April 6, 1995, award. It, thus, found the ALJ's order purporting to set aside the dismissal was void and of no effect. The relevant statutes, therefore, required Mr. Wilson to have filed his appeal within twenty days of the ALJ's original April 6, 1995, award. Since he did not do so, the Commission denied the appeal as untimely. This appeal followed. II.STANDARD OF REVIEW Our review of the Commission's decision is limited. We will reverse, remand, or modify only if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was insufficient competent evidence to support the award. Section 287.495.1. We review the entire record, including all legitimate inferences drawn therefrom, in the light most favorable to the Commission's decision. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 598 (Mo. banc 1994). III.WHETHER THE COMMISSION HAD JURISDICTION TO PROCEED ON THE APPLICATION FOR REVIEW Mr. Wilson presents three arguments why the Commission erred in ruling that his appeal was untimely because the ALJ had no jurisdiction to set aside his initial order, entered on April 6, 1995, dismissing Mr. Wilson's claim for failure to prosecute. We address each in turn. A.The "Statement of Policy" did not Confer Jurisdiction on the Commission. Mr. Wilson first argues that the Commission failed to consider the effect of the Commission's "Statement of Policy" issued on July 10, 1990.(FN2) That document states in full:

The Division of Workers' Compensation and the Labor and Industrial Relations Commission will treat Motions to Set Aside Orders of Dismissals or similar applications filed with an administrative law judge of the Division of Workers' Compensation within twenty (20) days of the award of the administrative law judge and which have not been acted on within the twenty (20) day period within which the Division of Workers' Compensation retains jurisdiction of a workers' compensation matter, as an Application for Review to the Commission. This will preclude the possibility of a timely request for review by an administrative law judge being rendered null and void due to the inability of the administrative law judge to act on the request within twenty (20) days. This Statement of Policy was signed by all three of the then members of the Commission and by the Director of the Division of Workers' Compensation. Mr. Wilson states that as a result of this Statement of Policy, his motion to set aside the dismissal of his claim should be treated as an Application for Review. Thus, he claims, he timely filed his Application and the Commission erred in dismissing his appeal as untimely. The Employer and the Second Injury Fund counter that the Statement of Policy was not adopted as a rule or internal policy and, therefore, it is not binding. We need not resolve this issue, for assuming that the Statement of Policy was properly adopted at the time rendered, it does not aid Mr. Wilson for at least two reasons. First, the Statement was issued on July 10, 1990. There is nothing in the record to show it was still in effect at the time of the dismissal on April 6, 1995. The only inferences permissible from the record are to the contrary. That is, if a motion to set aside made to the ALJ is treated by the Commission and the Division as an Application for Review, then why was the Claimant's motion not so treated, and why did the Commission dismiss the Application as untimely filed? Regardless of the procedure that was in effect on July 10, 1990, at the time at issue here, the Commission and the Division did not treat motions to set aside as Applications for Review. Second, even if the Statement of Policy were in effect in 1995, it states only that a motion to set aside that is filed with the Division but not acted upon within twenty days of the award will be considered as an Application for Review filed with the Commission. Here, the claimant did not file anything, but instead simply informally requested the ALJ to set aside his prior award dismissing the claim. Further, Mr. Wilson alleges that the ALJ did set aside his April 6, 1995, award. The Statement of Policy merely purports to treat filed motions to set aside as Applications when the ALJ fails to timely rule on the motion. Thus, given the fact that Mr. Wilson did not file his motion but made it orally, and given his allegation that a timely ruling was made, the Statement's provision

treating a motion to set aside as an Application for Review does not apply here by its own terms. B.Notice of the March 15, 1995, Hearing Was Adequate. Mr. Wilson also argues that the Commission erred in denying his Petition for Review because his counsel did not receive proper notice of the March 15, 1995, hearing. At the time that hearing was held, however, no attorney had entered a written entry of appearance on Mr. Wilson's behalf. Mr. Boyd had apparently attended the June 27, 1994, hearing, as the minutes reveal that Mr. Wilson appeared in person and by "Boyd." However, the Division did not receive Mr. Boyd's address, phone number, or written entry of appearance. On February 9, 1995, by certified mail, the Division mailed notice to Mr. Wilson of the upcoming final hearing set for March 15, 1995. This notice clearly stated that if Mr. Wilson did not appear, his claim might be dismissed for failure to prosecute. As already noted, neither Mr. Wilson nor his counsel appeared at the hearing and the ALJ dismissed the claim on April 6, 1995. Mr. Boyd later orally requested that this dismissal be set aside, claiming that he was Mr. Wilson's counsel and had not received notice of the hearing. It was not until May 19, 1995, that Mr. Boyd entered his written appearance as attorney for Mr. Wilson. The issue of the lack of notice of the hearing was not raised by Mr. Wilson in his untimely December 17, 1996, Application for Review, and is raised for the first time on appeal. Where, as here, an error is raised for the first time on appeal, we may review it only if we find on the face of the record that plain error has occurred. State v. Gray, 887 S.W.2d 369, 387 (Mo. banc 1994), cert. denied, 115 S.Ct. 1414 (1995). Relief under the plain error standard also requires that the defendant show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice would occur if the error is not corrected. State v. Silvey, 894 S.W.2d 662, 671 (Mo. banc 1995). We do not find plain error, or indeed any error, on this record. Although Mr. Wilson claims the error was in the failure to notify his attorney of the pending hearing, he cites to Section 287.655,(FN3) the statutory provision for notification of dismissal of a claim for failure to prosecute. It does not apply to determine whether Mr. Wilson's attorney was entitled to notice of the hearing. The latter issue is governed by the general notice-of-hearing provision, Section 287.520. It states that: Any notice required under this chapter shall be deemed to have been properly given and served when sent by registered or certified mail properly stamped and addressed to the person or entity to whom given, at the last known address in time to reach the person or entity in due time to act thereon, or to counsel for that person or entity in like manner. Notice may also be given and served in like manner as summons in civil actions. Section 287.520. (Emphasis added) Mr. Wilson did receive proper notice of this hearing by certified mail. This

statute does not require the notification of counsel, but merely provides for notification of counsel in the alternative. Here, no fault can be apportioned to the Division for failing to notify Mr. Boyd, when Mr. Boyd had not entered a written appearance, or given an address at which he could have received notification. C.An ALJ Has Authority to Set Aside an Order During the Twenty-Day Appeal Period Unless a Statute Provides Otherwise, and No Statute Deprived the ALJ in this Case of that Authority. Mr. Wilson finally argues that authority to set aside an award during the twenty-day appeal period is specifically granted to ALJs by the Division's own regulations. And indeed, it is uncontested that the Commission's regulations in effect at the time the ALJ acted provided that: [a]n Administrative Law Judge shall not have any authority to change or modify a final award issued by an Administrative Law Judge after the lapse of twenty (20) days from the date of issuance of an award or after an Application for Review . . . has been filed with the Commission in connection with any final award, order or decision of an Administrative Law Judge. 8 C.S.R. 20-3.010(2)(C). While the regulation explicitly states only that an ALJ has no power to modify or change a final award after the lapse of the twenty-day period for filing an Application for Review with the Commission, or after such an Application has in fact been filed, we agree with Mr. Wilson that implicit in the regulation is a recognition of an ALJ's power to set aside his or her award until either twenty days have passed or one of the parties has filed an Application for Review. There would be no point to a regulation denying an ALJ the power to set aside an award after the twenty-day appeal period if the ALJ did not have the power to set aside his or her awards during that twenty-day appeal period. The Second Injury Fund and the employer argue, however, that this regulation is invalid because it grants to ALJs powers beyond those permitted to be conferred on them by the applicable statutes. They also argue that the ALJ had no other basis of authority to set aside the order of dismissal. In support, they cite us to the decision of this Court in Sheets v. Labor and Indus. Relations Comm'n, 622 S.W.2d 391, 393 (Mo. App. 1991). Although Sheets involved an appeal from a decision by an appeals tribunal in an unemployment compensation proceeding, it is factually quite similar to this case. In Sheets, the appeals tribunal first issued a decision reversing the order of the deputy and finding the claimant was entitled to benefits. Ten days later, the appeals tribunal set aside its prior decision. It reset the case for hearing and ultimately issued a decision affirming the determination of the deputy against the claimant. The claimant appealed to the Commission, which affirmed, as did the circuit court. The claimant then appealed to this Court.

We held that the claimant's appeal to the Commission was untimely because not filed within ten days of the original decision of the appeals tribunal, as then required by the relevant statutes. We agreed with the Commission that because the relevant statutes and regulations did not specifically state that the appeals tribunal had jurisdiction to set aside its original decision, it did not have this power, noting that an "administrative tribunal is a creature of statute and exercises only that authority invested by legislative enactment." Id. at 392-93. The Second Injury Fund and the employer argue that the rationale of Sheets governs here, and requires us to hold Mr. Wilson's appeal untimely because it was not filed within twenty days after the ALJ issued his original award and an ALJ has no authority to set aside a dismissal for failure to prosecute even within the twenty- day period provided for appeal of that award to the Commission. As counsel for Mr. Wilson notes, however, we held in Eleven Star Inc. v. Director of Revenue, 764 S.W.2d 521, 524 (Mo. App. 1989), that an ALJ does have the power to set aside a prior dismissal for failure to prosecute. In that case, the Administrative Hearing Commissioner (AHC) dismissed for failure of a taxpayer to prosecute an appeal of an adverse determination by the Director of Revenue. The AHC denied the taxpayer's motion to set aside the order of dismissal, ruling that the Tax Commission had no inherent authority or power, but rather had only the power granted to it by statute. Since the statutes did not state the AHC could set aside its prior order within the time provided for appeal of that order, the AHC concluded he had no such authority.(FN4) This Court reversed. We reaffirmed the holding in Webb v. Labor and Indus. Relations Comm'n, 674 S.W.2d 672, 673 (Mo. App. 1984), that: an administrative body has the inherent power to set aside a dismissal for good cause as a necessary corollary to the power of dismissal and it has the inherent power to reinstate the appeal. This court reaffirms Webb and holds that an administrative body has the inherent power to set aside a dismissal which the administrative body has entered for good cause shown. Eleven Star, 764 S.W.2d at 522. We held that the Commission had this power for the thirty-day period during which a Petition for Review of that decision could be filed, or until such a Petition was filed, whichever occurred first. Id. We also recognized that the legislature could, by statute, limit the right of an administrative body to withdraw its prior dismissal during this period. Id. While Eleven Star dealt with a ruling of the Tax Commission rather than a ruling of an ALJ of the Division of Workers' Compensation, its reasoning clearly applies here and requires us to recognize the implicit authority of

an ALJ to set aside a dismissal for failure to prosecute where the ALJ does so within the time provided for appeal of the ALJ's decision, in the absence of a statute depriving the ALJ of such power.(FN5) In so holding, we do not mean to suggest that an ALJ has the sort of equitable or inherent authority enjoyed by a judge of the circuit court, nor do we read Eleven Star as so holding. To the contrary, it is well-settled that an ALJ has only the authority conferred on him or her by statute and regulations issued pursuant to statute. See, e.g., Mikel v. Pott Industries/St. Louis Ship, 896 S.W.2d 624, 626 (Mo. banc 1995); Brown v. Melahn, 824 S.W.2d 930, 933 (Mo. App. 1992). We simply apply the principle set out in Eleven Star and hold that implicit in the legislature's grant of authority to ALJs to dismiss awards is the power to set aside that dismissal within the period provided for appeal of that award. The authority to set aside thus comes not from any power inherent in the ALJ's position as ALJ, but rather as a necessary corollary to the legislature's grant of authority to the ALJ to make awards. Such authority lasts only until such time as an appeal is filed or as the twenty-day period for appeal has run. The Second Injury Fund and the employer argue that Eleven Star does not benefit Mr. Wilson here, however, for that case recognizes that the legislature may by statute limit or entirely deprive the ALJ of the authority to set aside its prior order of dismissal even during the twenty-day period for filing an Application for Review. They argue that Section 287.610.2 specifically does just that. The cited statute provides that ALJs: shall only have the jurisdiction to hear and determine claims upon original hearing and shall have no jurisdiction whatsoever upon any review hearing, whether in the way of an appeal from an original hearing or by way of reopening any prior award. Section 287.610.2 (emphasis added). Thus, respondents assert, the italicized portion of this provision expressly deprives the ALJ of any authority to reopen its award once it is made, and that this is precisely what the ALJ did below when he set aside his prior dismissal of Mr. Wilson's claim during the twenty-day appeal period. We agree with the Second Injury Fund and the employer that the ALJ's dismissal con-stitutes an "award" under the statute, for Section 287.655 specifically provides in relevant part that "an order of dismissal . . . shall be deemed an award and subject to review and appeal in the same manner as provided for other awards in this chapter." Id. Thus, an ALJ has no authority to reopen a case which has been dismissed. We disagree that this is what the ALJ did here, however, or that Section 287.610.2 otherwise prohibits the ALJ from setting aside his award during the twenty-day appeal period. More specifically, Section 287.610.2 does not specifically state that an ALJ shall have no jurisdiction whatsoever to set aside an order during the twenty-day appeal period. To the contrary, it says simply that an ALJ shall have no jurisdiction whatsoever upon any "review hearing, whether in the way of an appeal from an

original hearing or by way of reopening any prior award." Thus, it only deprives the ALJ of authority to review a prior award either by hearing an appeal of the original hearing or by reopening a prior award. These limitations on the ALJ's authority are consistent with related provisions of the workers' compensation statutes, and should be read in pari materia with them. Angoff v. M. & M. Management Corp., 897 S.W2d 649, 654 (Mo. App. 1995) ("'All consistent Statutes relating to same subject are in pari materia and are construed together as though constituting one act, whether adopted at different dates or separated by long or short intervals'"), quoting State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991). Thus, Section 287.410, entitled "Powers and functions of the division of workers' compensation," gives the Commission the discretion to carry out its duties as it may prescribe by regulations, but limits that discretion by providing that the power to review and change awards under Sections 287.470 and 287.480 "may not be delegated, but such power and duty shall be exercised exclusively by the commission. . . ." Section 287.470 gives the Commission the authority to rehear an award at any time after it is made, upon proper notice to the parties. Section 287.480 gives the Commission authority to hear Applications for Review if filed within twenty days of the ALJ's award. Read together, these three sections provide that the Commission can delegate matters to ALJs in its regulations, except that it cannot delegate to ALJs its power to rehear awards as set out in Section 287.470 or its power to hear appeals from awards as set out in Section 287.480. Consistent with these provisions, the statute which sets out the powers of ALJs prohibits them from usurping the powers of the Commission set out in Sections 287.470 or 287.480 by stat--ing that an ALJ "shall have no jurisdiction whatsoever upon any review hearing, either in the way of an appeal from an original hearing" - the type of review provided for in Section 287.480 - "or by way of reopening any prior award" - the type of review provided for in Section 287.470. The problem with the Commission's argument is that the ALJ is not performing a review function, and is neither hearing an appeal nor reopening a prior award, when the ALJ sets aside a prior dismissal within the twenty-day period provided for appeal to the Commission. To analogize to the civil rules, a civil trial judge has no authority to hear appeals of its own rulings. Neither may it reopen cases by setting aside final orders which have been appealed or for which the time for appeal has run except if the requirements of Rule 74.06 are complied with. How-ever, Rule 75.01 permits a judge to set aside an order during the thirty-day period for appeal unless the record on appeal is earlier filed. The trial judge is not thereby reviewing its prior decision or reopening it; it is simply setting aside its prior order on original hearing during the time period before the reviewing court acquires

jurisdiction of the appeal and before the time for filing an appeal runs out. Section 287.655 gives an ALJ authority to dismiss a claim, and states such a dismissal is an award. Eleven Star holds that an ALJ who has authority to dismiss a claim necessarily and implicitly also has authority to set aside that dismissal within the appeal period. In addition, the Commission's own regulations at the time in question implicitly provided that an ALJ had such power during that time period. In exercising that power here, the ALJ was neither reopening a prior award nor reviewing his prior award; he was setting aside his order and continuing with the original hearing, as he had jurisdiction to do. He, therefore, had jurisdiction to enter his order. The Commission erred in determining otherwise. We are aware that our decision is in conflict with the decision of the Eastern District in State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 306-07 (Mo. App. 1996), and with its recent decision reaffirming Doe Run in Doneff v. Treasurer of State of Missouri, No. 72436, slip op. at 3 (Mo. App. E.D. Feb. 10, 1998), holding that Section 287.610.2 deprives ALJs of jurisdiction to set aside an award once it is rendered. In so ruling, however, neither Doe Run nor Doneff explained how, in setting aside its prior decision, the ALJ was con-ducting a review hearing either by appeal or by reopening its prior award. They appear to assume that setting aside an award constitutes one of these forms of review. For the reasons already noted, we do not agree. Accordingly, we reach a result contrary to that reached in Doe Run and in Doneff.(FN6) For the reasons set out above, the decision of the Commission is reversed and remanded for proceedings consistent with this opinion. All concur. Footnotes: FN1. All statutory citations are to RSMo 1994 unless otherwise indicated. FN2. On July 7, 1997, this Court sustained Mr. Wilson's motion to supplement the record with a "Statement of Policy." The Missouri State Treasurer, as Custodian of the Second Injury Fund, has moved that we reconsider our ruling on this issue. Because we determine that the Statement of Policy is not determinative of this appeal, we choose not to revisit our prior decision to permit it to be filed in this Court. FN3. Section 287.655 provides that: Any claim before the Division may be dismissed for failure to prosecute in accordance with the rules and regulations promulgated by the Commis-sion, except such notice need not be by certified or registered mail if the person or entity to whom notice is directed is represented by counsel and counsel is also given such notice at counsel's last known address. Moreover, even if Mr. Wilson's point could be interpreted to complain that he did not receive proper notice of the dismissal of his claim, Section 287.655 does not provide that notice of dismissal must be provided to counsel.

Rather, it provides that if the party is represented by counsel and counsel is notified, the notice need not be by certified mail. Mr. Wilson was notified of both the date of the hearing and the order of dismissal by certified mail. This is all that the statute requires. FN4. The AHC in that case, Paul M. Spinden, is now a member of this Court and of the panel which is determining this appeal. FN5. Although this is inconsistent with some of the principles set out in Sheets, it can be distinguished from that case on the basis that the issue in Sheets was the power of an ALJ to entirely revise the substantive basis of a decision, not the power of the ALJ to take back a dismissal for failure to prosecute. The latter dismissal, of course, did not reach the merits of the claim. Moreover, in Sheets, there was no regulation authorizing the ALJ to set aside its prior decision during the appeal period. Here, there is a regulation implicitly so permitting. To the extent that Sheets is inconsistent with the reasoning of our later decision in Eleven Star, however, it should no longer be followed. FN6. This Court concurred with the holding of Doe Run in State ex rel. Famous Barr Co. v. Labor & Industrial Rel. Comm'n, 931 S.W.2d 892, 893 (Mo. App. 1996). In Famous Barr, however, the motion to set aside was not heard or ruled on within the twenty-day period provided for filing a Petition for Review. Thus, it was untimely under both Doe Run and under our decision here today, which requires that the ALJ actually set aside his or her order within the twenty-day appeal period. To the extent that dicta in Famous Barr adopts the rationale of Doe Run, it should no longer be followed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.