Opinion
No. 71856
OPINION FILED: July 22, 1997
Appeal from The Labor and Industrial Relations Commission, Judge.
Robert T. Hart, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Karla O. Boresi, Assistant Attorney General, for respondent.
Reinhard, P.J., Karohl, J., and Russell, J., concurring.
Claimant appeals from the dismissal by the Labor and Industrial Relations Commission (Commission) of her application for review of the dismissal of her claim for Second Injury Fund (Fund) benefits by the Administrative Law Judge (ALJ). We reverse and remand.
The report of injury and claim for compensation stated that on November 21, 1989, claimant, a school principal, was injured in a car accident while driving to pick up Thanksgiving baskets.
The minutes reveal that the claim was dismissed on June 19, 1995, for "failure to prosecute," and the ALJ entered an order of dismissal the following day. On June 28, 1995, the dismissal was set aside. On November 1, 1996, claimant and the Fund attorney appeared, and the ALJ found that he had no jurisdiction underFamous Barr Company v. Labor and Industrial Relations Commission, 931 S.W.2d 892 (Mo.App.W.D. 1996), which held that an ALJ loses jurisdiction once a dismissal has been entered.
On November 5, 1996, claimant filed an application for review with the Commission. The Commission dismissed the application for lack of jurisdiction because it had been filed more than twenty days after the entry of the dismissal order.
On appeal, claimant contends the twenty day time limit did not apply because the record did not indicate that she received notice of the June 20, 1995, dismissal order.
Section 287.480, RSMo 1994, provides that an application for review must be filed within twenty days from the date of the award. A dismissal is an award for purposes of Chapter 287.Famous Barr, 931 S.W.2d at 893.
All statutory citations are RSMo 1994.
Section 287.460.1 provides that "a copy of the award shall immediately be sent by United States mail to the parties in dispute and the employer's insurer." Section 287.520 also sets forth notice requirements:
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 287.655 also refers to the notice requirement for dismissal orders:
Any claim before the division may be dismissed for failure to prosecute in accordance with rules and regulations promulgated by the commission, 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.
See also MO. CODE REGS. tit. 8, Section 50-2.010(19), which provides that a notice of dismissal must be sent by certified mail unless the party is represented by an attorney. Here, claimant appeared pro se at the hearings before the ALJ.
Failure to comply with the statutory notice requirements extends the twenty day time limit for filing an application for review.Eighmy v. Tandy/O'Sullivan Industries, 867 S.W.2d 688, 691 (Mo.App.S.D. 1993).
In Eighmy, the Commission dismissed the claimant's application for review because it was filed more than twenty days after the order of dismissal by the ALJ. 867 S.W.2d at 689. On appeal, the Southern District found that the record contained "no hint" that the Division of Workers' Compensation (Division) complied with section 287.460 by immediately sending the claimant a copy of the ALJ's dismissal of her claim. Id. at 691. The court concluded that the Division's failure to comply with the statutory notice requirement extended the twenty day time limitation for filing the application for review and reversed the Commission's order of dismissal. Id.
Here, the record on appeal contains a "folder file copy" of the ALJ's dismissal order. The order lists the parties and their addresses and states: "Each of the above parties is hereby notified that the Claim for Compensation for the above injury is dismissed." The record contains no other indication that the Division mailed the requisite statutory notice to claimant. As the Western District has noted:
The Fund asserts that the record indicates claimant "received actual notice of the June 20 Dismissal because she had the Dismissal set aside by the ALJ on June 28 . . . ." The page of the record cited by the Fund for this assertion is a portion of the minutes. The relevant entry merely states, "SIF [Fund] dismissal set aside[.] Set SIF P.H." We find nothing in the record showing that the dismissal was "set aside" due to an action by claimant.
When mailing is an issue, proof must establish that the item was mailed. . . . The mailing of a document should be memorialized to chronicle its occurrence. Proof is often uncertain unless a mailing receipt or postmarked envelope are obtained and retained, a docket entry is made[,] or an affidavit is presented, to document the actual mailing.
Weston Transportation, Inc. v. Sharp, 926 S.W.2d 219, 221 (Mo.App.W.D. 1996). (Citations omitted). The record does not sufficiently indicate that the Division complied with the statutory notice requirements regarding the dismissal order. Thus, we conclude that the Commission had jurisdiction over claimant's application for review. See Eighmy, 867 S.W.2d at 691.
Claimant's remaining points on appeal allege various errors in the ALJ's dismissal of her claim. Claimant contends the dismissal was improper because the record contains no reason for the dismissal, claimant did not receive notice of the June 19, 1995 hearing, and the dismissal order was not attested. An evidentiary hearing is necessary to determine the truth or falsity of these allegations. The Commission has authority to hear additional evidence on these issues, or it may remand the case to the ALJ for an evidentiary hearing. See id. at 692.
Claimant apparently failed to consider the minutes, which stated that her claim was dismissed for "failure to prosecute."
The Commission's order dismissing claimant's application for review is reversed. The claim is remanded to the Commission with directions that an evidentiary hearing be held to determine the facts surrounding claimant's failure to appear at the June 19, 1995, hearing and the validity of the dismissal order.
Reversed and remanded.
Kent E. Karohl, J., and Mary Rhodes Russell, J., concurs.
OPINION SUMMARY
Claimant appeals from the dismissal by the Labor and Industrial Relations Commission of her application for review of the dismissal of her claim for Second Injury Fund benefits by the administrative law judge (ALJ).
REVERSED AND REMANDED.
Division One holds: The record did not contain sufficient evidence to indicate that claimant was notified of the ALJ's order of dismissal. Therefore, we reverse and remand for an evidentiary hearing to determine the facts surrounding claimant's failure to appear at the June 19, 1995 hearing and the validity of the dismissal order.