Roger Shaw, Claimant/Appellant, v. LSI-Lowery Systems, Inc., 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: Roger Shaw, Claimant/Appellant, v. LSI-Lowery Systems, Inc., and Division of Employment Security, Respondents. Case Number: ED90659 Handdown Date: 01/22/2008 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Roger Shaw (pro se) Counsel for Respondent: Matthew R. Heeren Opinion Summary: Roger Shaw appeals the decision of the Labor and Industrial Relations Commission dismissing his application for review concerning his claim for unemployment benefits. DISMISSED. Division Five holds: Shaw's appeal must be dismissed because he did not file his application for review with the commission in a timely fashion, depriving the commission and this court of jurisdiction over the case. Citation: Opinion Author: Patricia L. Cohen, Chief Judge Opinion Vote: DISMISSED. Shaw and Baker, JJ., concur. Opinion: Roger Shaw (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing his application for review concerning his claim for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible to receive unemployment benefits, because he was discharged from his employment for misconduct connected with work. Claimant appealed to the Appeals Tribunal of the Division. On August 10, 2007, the Appeals Tribunal issued a decision dismissing Claimant's appeal.(FN1) On September 12, 2007, Claimant filed an application for review with the Commission. The Commission dismissed his application for review, concluding it was untimely. Claimant appeals to this Court. The Division has filed a motion to dismiss Claimant's appeal. The Division asserts that Claimant's application for review to the Commission was untimely and thus, the Commission and this Court are without jurisdiction to review her case. Claimant has not filed a response to the motion. In an unemployment case, a claimant has thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. Here, the Appeals Tribunal mailed its decision to Claimant on August 10, 2007. The application for review was due thirty days later, on Monday, September 10,

1. Section 288.200.1; Section 288.240, RSMo 2000. Claimant filed his application for review by facsimile on

September 12, 2007, and it was untimely under section 288.200.1. The unemployment statutes fail to provide any exception to the thirty-day requirement and thus, the failure to file a timely application for review divests the Commission of jurisdiction. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App.E.D. 2003). Because our jurisdiction is derived from that of the Commission, we also lack jurisdiction. Blanchard v. Shurn & Associates, Inc., 209 S.W.3d 22, 24 (Mo.App.E.D. 2006). Therefore, we must dismiss Claimant's appeal. The Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction. Footnotes: FN1. The Appeals Tribunal had previously dismissed Claimant's appeal as untimely, but this dismissal was set aside and the Tribunal conducted a hearing to determine if Claimant had good cause for missing the deadline as set forth in section 288.070.8, RSMo 2000.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.