Margaret Cheryl (Duncan) Wolter, Appellant v. Hannibal Regional Hospital & 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: Margaret Cheryl (Duncan) Wolter, Appellant v. Hannibal Regional Hospital & Division of Employment Security, Respondents. Case Number: ED83561 Handdown Date: 11/25/2003 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Margaret Cheryl (Duncan) Wolter, Pro Se Counsel for Respondent: Cynthia A. Quetsch Opinion Summary: Margaret Wolter appeals from the labor and industrial relations commission's order denying her application for review as untimely. APPEAL DISMISSED. Division Five holds: This Court lacks jurisdiction to review Wolter's appeal because she failed to timely file her application for review with the commission. Citation: Opinion Author: Sherri B. Sullivan, Chief Judge Opinion Vote: DISMISSED. Mooney, J., and Draper, J., concur. Opinion: 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. (FN1) 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.

Footnotes: FN1. All statutory references are to RSMo. (2000), unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.