                                         In the
                              Missouri Court of Appeals
                                    Western District
JOSEPH SANDERS,                             )
                                            )
               Appellant,                   )     WD76105
                                            )
v.                                          )     OPINION FILED: January 28, 2014
                                            )
DIVISION OF EMPLOYMENT                      )
SECURITY,                                   )
                                            )
              Respondent.                   )

            Appeal from the Labor and Industrial Relations Commission

 Before Division One: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and
                            Karen King Mitchell, Judge


      Joseph H. Sanders ("Sanders") appeals the decision of the Labor and Industrial

Relations Commission ("Commission") dismissing his application for review because it

was not timely filed. On appeal, Sanders challenges the underlying decision of the

Appeals Tribunal that he was discharged from employment due to misconduct, making

him ineligible for benefits. Because our appellate review is limited to issues determined

by the Commission, and because Sanders does not challenge the Commission's dismissal
of his application for review as untimely, Sanders has not preserved any issue for

appellate review. The Commission's decision is affirmed.

                                    Factual and Procedural History

      Sanders was employed as a maintenance mechanic with Weidenhammer

Packaging Group ("Employer"). Sanders was discharged on April 28, 2012 for failing to

comply with Employer's policy regarding reporting work absences.

      Sanders filed for unemployment benefits. A Division Deputy determined that

Sanders was not disqualified for benefits because the discharge was not a result of

misconduct connected with work. Employer appealed the Deputy's determination to the

Appeals Tribunal.          The Appeals Tribunal held that Sanders knowingly disregarded

Employer's attendance policy and that Employer met its burden of proving that Sanders

was terminated for misconduct connected with work.

      The Appeals Tribunal decision was mailed on August 8, 2012.                          Sanders's

application for review to the Commission was filed December 10, 2012. On January 7,

2013, the Commission dismissed Sanders's application for review "pursuant to section

288.200 RSMo,1 because it was neither postmarked nor received within thirty (30) days

after the Appeals Tribunal Decision was mailed." The Commission's order advised

Sanders that if he chose "to appeal this decision to the Missouri Court of Appeals," he

must do so within thirty days of the date of the order. (Emphasis added.)

      Sanders filed a timely notice of appeal from the Commission's order on

February 4, 2013.

      1
          All statutory references are to RSMo 2000, as updated, unless otherwise noted.

                                                         2
                                  Standard of Review

      Appellate review of the Commission's decision in an unemployment case is

governed by Article 5, Section 18, of the Missouri Constitution and section 288.210.

Sanders v. Div. of Emp't Sec., 392 S.W.3d 540, 542 (Mo. App. W.D. 2013). On appellate

review, we are only authorized to afford a claimant relief from a Commission decision if:

      (1) the Commission acted without or in excess of its power; (2) the award
      was procured by fraud; (3) the facts found by the Commission do not
      support the award; or (4) there was not sufficient competent evidence in the
      record to warrant the making of the award.

Lewis v. Fort Zumwalt Sch. Dist., 260 S.W.3d 888, 889-90 (Mo. App. E.D. 2008); see

section 288.210.

      The decision we review on appeal is the Commission's. Stanton v. Div. of Emp't

Sec., 321 S.W.3d 486, 488 (Mo. App. W.D. 2010). We do not review the decision of the

Appeals Tribunal except to the extent it is adopted by the Commission. Sanders, 392

S.W.3d at 543.

                                        Analysis

      Sanders raises a single point on appeal. He contends that the Commission erred in

denying him unemployment benefits because Employer failed to establish that he was

discharged because of misconduct connected with his work. The Commission did not,

however, make a determination regarding Sander's entitlement to benefits.            The

Commission did not review the Appeals Tribunal's conclusion that Sanders was

discharged from employment due to misconduct connected with his work. Rather, the




                                            3
Commission dismissed Sander's application for review based solely on the ground that

the application was not timely filed.

       We are not permitted to review the issue raised in Sanders's point on appeal, as it

is not an issue that was determined by the Commission. See Section 288.210. Nor are

we permitted to review whether the Commission properly dismissed Sander's application

as untimely filed since that is not a point of error raised by Sanders in this appeal.

Stanton, 321 S.W.3d at 488 (holding that our review on appeal is confined to points of

error properly raised in the appeal); see also Rule 84.13(a) ("Allegations of error not

briefed or not properly briefed shall not be considered in any civil appeal.").2

       We thus deny Sanders's single point relied on, and affirm the unchallenged

decision of the Commission to dismiss Sanders's application for review as untimely. Ex

gratia, we observe that the Commission's decision comports with the limits of its

statutory authority. Pursuant to section 288.200, the Commission has no authority to

entertain an application for review filed more than thirty days after the Appeals Tribunal

decision is mailed. See Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D. 2000)

(holding that section 288.200 "does not provide for late filing and does not recognize any

exceptions for filing out of time").




       2
           But see Rule 84.13(c) permitting plain error review in extraordinary circumstances.

                                                          4
                                                    Conclusion

         The Commission's decision is affirmed.3



                                                       __________________________________
                                                       Cynthia L. Martin, Judge


All concur




         3
           Some of our decisions dismiss the appeal of a claimant who fails to challenge the Commission's dismissal
of an application for review as untimely, theorizing that the only issue determined by the Commission has been
abandoned, leaving no issue preserved for appellate review. See, e.g., Sanders, 392 S.W.3d at 543; Elmore v. Div.
of Emp't Sec., 341 S.W.3d 878, 880 (Mo. App. W.D. 2011); Stanton, 321 S.W.3d at 488. Other decisions point out
that because we have jurisdiction to entertain a timely filed appeal from a Commission decision, we should affirm
the Commission's decision (in lieu of dismissing the claimant's appeal) where the claimant fails to challenge the
Commission's dismissal of an application for review as untimely. See, e.g., Boles v. Div. of Emp't Sec., 353 S.W.3d
465, 468 n. 4 (Mo. App. W.D. 2011) (citing Beebe v. Naviaux, 327 S.W.3d 576, 578 (Mo. App. S.D. 2010).
          The practical effect in either case is the same. However, this author believes the preferred disposition of a
timely filed appeal is to dispose of the appeal on its merits, even where the claimant fails to challenge the
Commission's decision to dismiss an application for review as untimely. This procedural disposition is consistent
with Rule 84.14 which requires us to "award a new trial or partial new trial, reverse or affirm the judgment or order
of the trial court, in whole or in part, or give such judgment as the court ought to give" where we otherwise have
jurisdiction to entertain an appeal. This procedural disposition is also consistent with our power to conduct plain
error review pursuant to Rule 84.13(c) where the plain error, "though not raised or preserved [as required by Rule
84.13(a)]" "affects "substantial rights" such that the failure to consider same on appeal would result in "manifest
injustice or miscarriage of justice." (Emphasis added.)

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