                     MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT

 DONZELL WALKER,                             )
                                             )   WD82533
                     Appellant,              )
    v.                                       )   OPINION FILED:
                                             )
 DIVISION OF EMPLOYMENT                      )   January 7, 2020
 SECURITY,                                   )
                                             )
                      Respondent.            )
                                             )


          Appeal from the Labor and Industrial Relations Commission

                 Before Division Two: Thomas H. Newton, P.J.,
               Anthony Rex Gabbert, and Thomas N. Chapman, JJ.


         Donzell Walker appeals the decision of the Labor and Industrial Relations

Commission dismissing his claim for unemployment benefits. The Commission

determined that Mr. Walker failed to demonstrate good cause for failing to participate

in a hearing. The appeal is dismissed.

                            Factual and Procedural History

         Mr. Walker worked for City Wide Maintenance (Employer), and was

terminated for directing profanity at his supervisor during a telephone conversation

(where his absence from work was being discussed). Mr. Walker filed a claim for

unemployment compensation benefits. A Deputy of the Division of Employment

Security (Division) found Mr. Walker ineligible to receive unemployment insurance
benefits. Mr. Walker appealed that decision, and was mailed a notice of the hearing

before the Appeals Tribunal, on November 5, 2018, at 12:30 pm. Mr. Walker failed to

call in, and his appeal was dismissed. He requested a new hearing, which was

conducted. At that hearing Mr. Walker acknowledged that the address where the

notice was sent was correct, that he had received the notice for the 12:30 pm hearing,

and that he did not participate in the hearing. He testified that he received notice of

another hearing (regarding his ability to work) for that same date, set at 1:15 pm, and

that he did call in for that hearing. When asked why he didn’t participate in the 12:30

pm hearing, he testified as follows:

      Q: All right. Why didn’t you call in for that hearing?

      A: Because, uh, I deal with – I was confused about the, uh, the first
      package or the second package which I had called in at 12:30 but the
      one prior to that, I believe it was 1:15 I mean. I didn’t – I called in at
      1:15 but I didn’t call in at 12:30 because I was confused and I deal with
      a mental illness and I just – I got overwhelmed. This is my first time,
      uh, going through, uh, appeals or trying to get unemployment so I was
      just confused and it – it – it – it – I couldn’t understand what I needed –
      what I needed to do….

      ***

      Q: Okay. So – so I just want to be clear and I believe we asked this but
      I wasn’t – I wasn’t sure I understood it. When – when you received all
      the documents in the mail for the two hearings, uh, on – on November
      5 th , did you notice that they – they were two different notices with two
      different times?

      A: No, sir. I – I only read, uh, the one at 1:15 and I made sure that I
      called in that day because that’s the only one. I—I—I reckon I missed –
      I reckon the other one at 12:30…

      In its decision dismissing Mr. Walker’s claim, the Commission found that,

when he received the two notices, Mr. Walker “only read the notice for the 1:15 pm

hearing.” The Commission further found that Mr. Walker “suffers from a mental

                                            2
health issue…that sometimes causes him confusion. The claimant did not present any

medical evidence regarding his condition.” In its conclusions of law, the Commission

found as follows:

             The claimant did not demonstrate good cause for failing to
      participate (sic) the previous hearing. The claimant failed to participate
      because he did not read the notices provided to him.…The claimant’s
      failure to review the documents provided to him does not constitute
      good cause. The claimant did not demonstrate reasonableness and good
      cause under the circumstances.

             The claimant failed to provide any competent evidence to show
      that his mental health issues caused him to miss the hearing. The
      claimant admitted he had not read the notice. It was the claimant’s
      failure to read the notice, not any confusion, which prevented him fro m
      participating in the hearing….”

      In its decision, the Commission concluded: “Good Cause has not been shown

for failing to participate in the prior hearing….The claimant’s appeal is dismissed.”

This appeal by Mr. Walker followed.

                              Dismissal of Appeal

      In his sole point on appeal, Mr. Walker contends that the Commission erred in

finding him disqualified for unemployment benefits based on his discharge for

misconduct connected with work. Because Mr. Walker does not properly appeal the

only ruling made by the Commission (that he had failed to demonstrate good cause

for failure to participate) and he does not comply with the briefing requirements of

Rule 84.04 for the good cause issue, the appeal is dismissed.

      Rule 84.13(a) provides that “allegations of error not briefed or not properly

briefed shall not be considered in any civil appeal.” Rather than addressing the

Commission’s decision to dismiss appeal of his claim, Mr. Walker’s sole point on




                                           3
appeal addresses the merits of his claim. 1 While Mr. Walker does discuss the reasons

he missed the hearing in his one-paragraph conclusion, he does not even mention the

phrase “good cause” in his brief. 2 A question not presented in an appellant’s brief

will be considered abandoned on appeal. Stanton v. Div. of Emp’t Sec., 321 S.W.3d

486, 488 (Mo. App. W.D. 2010).

       In Stanton, the appellant’s claim for unemployment compensation benefits was

dismissed by the Commission due to his failure to call in and participate in the

hearing before the Appeals Tribunal; and the appellant, like Mr. Walker, challenged

the merits of the claim on appeal, rather than the dismissal for failure to participate.

Id. at 487-88. In dismissing the appeal in Stanton, we observed:

       Our review is confined to those points of error that the appellant
       properly raises on appeal. In this case, Stanton has failed to allege any
       reviewable point of error on the part of the Commission. The
       Commission’s decision upheld the dismissal of Stanton’s case. Stanton,
       however, does not address this issue in his brief. Rule 84.13(a) provides
       that allegations of error not briefed or not properly briefed shall not be
       considered in any civil appeal. Furthermore, a question not presented in
       an appellant’s brief will be considered abandoned on appeal and no
       longer an issue in the case. Because Stanton’s appeal does not contest
       the dismissal of his case for failure to appear at the hearing, he has
       abandoned that issue. Having failed to raise the grounds upon which the
       Commission dismissed his claim, Stanton presents no appealable issue
       for this court to review.

Id. at 488 (internal quotes and citation omitted).


1
  Mr. Walker’s point on appeal asserts that he engaged in no misconduct, and that he did not violate
the employer’s code of conduct (policy). At best, this could be construed to be a challenge to the
sufficiency of the evidence of a decision on the merits of his claim, a decision that the Commission
did not make.
2
  In order to proceed on the merits, at the rescheduled hearing Mr. Walker carried the burden of proof
to first show that he had good cause for his failure to participate in original hearing. Hubbard v.
Schaefer Autobody Ctrs., Inc., 561 S.W.3d 458, 462 (Mo. App. E.D. 2018). “Good cause” is defined
as “those circumstances in which the party acted in good faith and reasonably under all the
circumstances.” 8 CSR § 10-5.040(2)(B).


                                                  4
      Furthermore, Mr. Walker fails to comply with the Rule 84.04 briefing

requirements for the good cause issue. Rule 84.04 describes mandatory requirements

for appellate briefs. Hubbard v. Schaefer Autobody Ctrs., Inc., 561 S.W.3d 458, 460-

61 (Mo. App. E.D. 2018).

      In the interest of judicial impartiality, judicial economy and fairness to
      all parties, pro se appellants are held to the same standards as attorneys
      regarding the mandatory appellate briefing rules. All litigants are
      required to comply with Rule 84.04; an appellate court should not
      speculate as to the parameters of the appellant’s argument because doing
      so would cast the court in the role of the appellant’s advocate.

Id. at 461 (internal citations omitted). “While we prefer to dispose of a case on the

merits whenever possible, if the deficiencies in the brief are such that no claims are

preserved for appellate review, then we must dismiss the appeal.” Scott. v. Potter.

Elec. Signal Co., 310 S.W.3d 311, 312 (Mo. App. E.D. 2010).

      An appellate brief must contain a “Point Relied On” for each issue on appeal

and an argument that substantially follows the corresponding “Point Relied On.”

Hubbard, 561 S.W.3d at 461. Specifically, Mr. Walker’s brief fails to comply with

Rules 84.04(d)(2) and 84.04(e). Under Rule 84.04(d)(2), “each point relied on must

identify the administrative ruling or action the appellant challenges, provide a concise

statement of the legal reasons for the claim on appeal, and explain why the legal

reasons support the claim of error.” Hubbard, 561 S.W.3d at 461 (internal quotes and

citation omitted). Rule 84.04(e) requires the argument to substantially follow the

order of the “Point Relied On.” The argument shall include the applicable standard

of review. Id. Moreover, “[a]ll factual assertions in the argument shall have specific

page references to the relevant portion of the record on appeal.” Id. The argument

“should develop the claim of error by showing the interaction between the relevant

                                           5
principles of law and the facts of the particular case.” Hubbard, 561 S.W.3d at 461

(internal quotes and citation omitted). “Mere conclusions and the failure to develop

an argument with support from legal authority preserve nothing for review. ” Wallace

v. Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018) (internal quotes and citation

omitted).

       Mr. Walker’s brief fails to comply with Rule 84.04 in a number of ways. He

fails to assert a “Point Relied On” challenging the Commission’s decision that he

failed to demonstrate good cause for his failure to appear. While he does raise the

good cause issue in his conclusion, he makes only conclusory claims not supported

by legal argument. He fails to set forth the applicable standard of review for that

issue, to present legal authority or argument for reversal, or to cite to specific page

references to the relevant portions of the record. 3

       Compliance with the briefing requirements of Rule 84.04 is required to give

notice to the other party of the precise matters at issue and t o ensure that appellate

courts do not become advocates for the appellant by speculating facts and arguments

that have not been made. Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo.


3
   Two other problems relate to the preparation and filing of Mr. Walker’s briefs. First, while Mr.
Walker signed his appellant’s brief, another individual also signed it. Specifically, after Mr.
Walker’s signature, the following was set out: “I, Zachary Tyler Ne wman, am the current
Community Specialist for Mr. Donzell Walker, who requires assistance in multiple aspects of his life,
included a demonstrated inability to read paperwork and interpret it for himself” followed by Mr.
Newman’s signature and contact information at Swope Health Services. It is unclear if Mr. Newman
wrote Mr. Walker’s brief. While Rule 5.29(b), governing the unauthorized practice of law, allows an
individual party to be represented by a duly authorized agent in any employment security pro ceeding
before the state division of employment security, it does not provide such in this court.

    Additionally, a second individual, Edward L. Speed, apparently wrote the “Appellant’s Friend of
Court Reply Brief.” The court’s local Rule 26 allows a micus curiae briefs to be filed in cases but
“only with the consent of the parties or upon order of the Court.” Amicus curiae briefs “shall
conform to Rules 84.04 and 84.06.” Id. This purported Friend of Court brief was not filed with the
consent of the parties or upon order of this court and should be ignored. Furthermore, it does not
comply with Rule 84.04.

                                                  6
App. E.D. 2005). In Hampton v. Davenport, 86 S.W.3d 494, 496 (Mo. App. S.D.

2002), the Southern District of our court dismissed an appeal for briefing

deficiencies, noting the importance of giving the court and other parties notice of the

issues on appeal:

      Rule 84.04 mandates what an appellant’s brief shall contain. Violations
      of Rule 84.04 are grounds for a court to dismiss an appeal. Whether an
      appeal will be dismissed for failure to comply with Rule 84.04 is
      discretionary. That discretion is generally not exercised unless the
      deficiency impedes disposition on the merits. A brief impedes
      disposition on the merits where it is so deficient that it fails to give
      notice to [the court] and to the other parties as to the issue presented on
      appeal.

      The garnishee’s appellant’s brief impedes disposition of the case on its
      merits. It does not identify any issue that permits meaningful review. It
      is the appellant’s obligation to identify, with particularity, the proposition
      on which the party relies and to provide accurately referenced authority
      for the proposition. Likewise, an appellant’s obligation includes
      providing authority in support of alleged trial court errors with accurate
      citations to that authority. Were the appellate court to undertake these
      things when an appellant has failed to do them, the appellate court would
      be assuming the role of advocate. It is not the function of the appellate
      court to serve as advocate for any party to an appeal.

Id. at 496 (internal quotations and citations omitted).

      Mr. Walker’s brief discussion in his conclusion of the reasons he did not call

into the hearing does not adequately identify the proposition on which he relies or

provide authority for that proposition to permit meaningful review. Again, Mr.

Walker does not even mention the phrase “good cause” in his brief. To engage in a

good cause analysis, therefore, would require this court to assume the role of

advocate for Mr. Walker on appeal, which we cannot do. Having failed to properly




                                            7
raise or brief the grounds upon which the Commission dismissed his claim, Mr.

Walker presents no appealable issue for this court to review. 4

       The appeal is dismissed.

                                                       /s/Thomas N. Chapman
                                                       Thomas N. Chapman, Judge


Thomas N. Chapman, Judge, writes for the majority. Anthony Rex Gabbert,
Judge, concurs. Thomas H. Newton, Presiding Judge, dissents.




4
  The Dissenting Opinion concedes that Mr. Walker’s briefing was deficient, but nevertheless
concludes that, because the Division did address his failure to demonstrate “good cause” in its brief,
we should allow his appeal to proceed. Since Walker’s sole point on appeal and most of his
argument address the merits of his claim (which was not decided), it is not surprising that the
Division ignored his arguments and addressed the only issue that actually was decided: why the
Commission found that Mr. Walker had failed to demonstrate good cause for failing to participate in
the hearing. However, the Division did not address the novel legal arg uments first posited for Mr.
Walker by the Dissent. Even though Mr. Walker bore the burden of proof that he had good cause to
have missed the 12:30 pm hearing, Hubbard, 561 S.W.3d at 462, even though we are to defer to the
Commission on the credibility of witnesses and the weight given to evidence, Fendler v. Hudson
Servs., 370 S.W.3d 585, 588 (Mo. banc 2012), and in spite of Mr. Walker’s testimony that he
received the two notices but “only read…the one [notice] at 1:15”, the Dissent indicates that the
Commission was nevertheless required to have considered Mr. Walker’s self -serving testimony
competent evidence that his mental illness caused him to miss the hearing, that the Commission erred
in concluding that Mr. Walker failed to demonstrate good cause for having missed the hearing, and
that we must conclude (as a matter of law) that he had good cause to have missed the hearing.
Neither Mr. Walker nor the Division anticipated this argument, and neither should we. “ Were [we] to
undertake these things when [Mr. Walker] has failed to do them, [we] would be assuming the role of
advocate. ‘It is not the function of the appellate court to serve as advoc ate for any party to an
appeal.’” Hampton, 86 S.W.3d at 496 (quoting Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc
1978)).



                                                  8
                        MISSOURI COURT OF APPEALS
                            WESTERN DISTRICT


 DONZELL WALKER,                              )
                                              )   WD82533
                     Appellant,               )
    v.                                        )   FILED: January 7, 2020
                                              )
 DIVISION OF EMPLOYMENT                       )
 SECURITY,                                    )
                                              )
                      Respondent.             )


                                DISSENTING OPINION

         Mr. Donzell Walker appeals pro se a Labor and Industrial Relations

Commission’s (Commission) decision affirming the dismissal of an appeal for failing

to participate in a prior hearing without good cause. Mr. Walker challenges the

ruling, which also effectively denied a request for unemployment compensation

benefits, on the ground that his mental illness caused him to miss the hearing. He

further contends that the evidence was insufficient to show that he was discharged

from employment for misconduct. Because I believe that he met his b urden of

showing good cause to miss the merits hearing, I respectfully dissent.

         I agree that Mr. Walker failed to properly brief the good-cause question.

However, the factual recitation contains the following statement: “Due to Mr.

Walkers [sic] diagnoses and trouble with understanding and interpreting paperwork
he became confused and missed one of his previous appointments with the court due

to no fault of his own.” He also states as part of the argument, “In addition, the

appellant’s schizophrenia disorder is the cause of him missing his previous

appointment.” He concludes as follows:

       In this case, the Commission erred in denying unemployment benefits to
       the appellant for missing a previous telephone hearing. Due to the
       appellant’s mental status he became confused and was unaware of what
       was required of him, causing him to miss his hearing. The failure to
       report for the telephone hearing was not at the fault of the appellant, but
       rather to his inability to interpret the legal information in front of him
       and due to his documentation proving his mental status and inability to
       perform certain tasks [sic] he is entitled to his unemployment benefits
       commencing after his work separation on September 20 th , 2018.


       Because Mr. Walker did not raise the matter in the point relied on, good cause

is not preserved, but this Court may exercise its discretion, ex gratia, to consider the

argument’s merits. Hoeper v. Liley, 527 S.W.3d 151, 161 (Mo. App. W.D. 2017). As

our supreme court has indicated, we may treat a point “as preserved for appellate

review if it provides sufficient notice to the parties and to this Court as to the issues

presented on appeal.” Kohner Props., Inc. v. Johnson, 553 S.W.3d 280, 282 n.1 (Mo.

banc 2018) (citation omitted). We are on such notice, and the briefing suggests that

the Commission was as well in that it chose to respond, addressed the good -cause

issue, and did not challenge Mr. Walker’s appeal for a Rule 84.04 violation. “[W]hen

possible, this Court’s policy is to decide a case on its merits rather than on technical

deficiencies in the brief.” Mo. Bankers Ass’n, Inc. v. St. Louis Cty., 448 S.W.3d 267,

271 n.5 (Mo. banc 2014) (citation omitted). Accordingly, I would address the good -

cause claim on the merits.




                                             2
        City Wide Maintenance Co. (employer) hired Mr. Walker in April 2017 as a

janitorial service representative. His supervisor, Mr. Charles Crawford, terminated

Mr. Walker’s employment on September 20, 2018, allegedly for using profanity in a

telephone call to explain a two-day absence from work. A Division of Employment

Security deputy determined that Mr. Walker was disqualified from receiving

unemployment compensation benefits because he was discharged for misconduct

connected to work, that is, he used profanities toward his employer in violation of the

employer’s code of conduct. 1 Mr. Walker appealed the decision, but failed to call into

and participate in the hearing.

        Mr. Walker had been sent information about two telephone hearings scheduled

for November 5, 2018: one, at 12:30 p.m., was to address the merits of the claim; the

second, forty-five minutes later, involved whether he was available and able to work.

He testified that inexperience with the unemployment claims process and mental

illness—paranoid schizophrenia—caused confusion and anxiety. He testified that,

under these circumstances, “[he] really didn’t understand what [he] needed—what

[he] needed to do.” Mr. Walker participated in the 1:15 p.m. hearing. He later

explained when testifying about missing the earlier hearing that he had a witness for

the 1:15 p.m. hearing, and the referee asked Mr. Walker to step out of the car from

which he had called so the witness’s testimony could be taken. Then when the

referee told him there were no further questions, Mr. Walker wondered why his boss


1
  The employer had responded to the claim for benefits with a letter describing the conduct that
precipitated the termination and outlining other instances of misconduct, including late arrivals, early
departures, absences, and uncooperative behavior that warranted written warnings, a suspension, and
a 90-day probationary period. According to the letter, the use of profanities violated the employer’s
policies of which Mr. Walker was aware. Signed by Mr. Walker in April 2017, part of the policy
included treating co-workers and customers “with dignity and respect. That means we do not use
words that could be construed as harassing, degrading, or offensive.”

                                                   3
had not been on the call and why he was not given the opportunity to defend himself

in that hearing. Mr. Walker realized he must have made a mistake and, less than an

hour after the 1:15 p.m. hearing, called the Appeals Tribunal to state that he did not

know he was supposed to call in for another hearing.

      He was asked by a hearing referee whether he had noticed, after he had

received all of the documents in the mail for the two hearings, that they were for two

different hearings at two different times, Mr. Walker testified, “No sir. I—I only

read, uh, the one at 1:15 and I made sure that I called in that day because that ’s the

only one. I—I—I reckon I missed—I reckon the—the other one at 12:30.”

      The Appeals Tribunal dismissed the appeal because of Mr. Walker’s failure to

appear, and he promptly sought reconsideration. That request included the following

statement:

      On November 5 th , 2018 I was scheduled to have a phone interview at
      12:3pm [sic]. Due to my condition, I became confused and called at
      1;15pm [sic]. I am disabled and have been diagnosed with
      schizophrenia and also suffer from acute memory loss. I am currently a
      client with Swope Health Service located at 3801 Blue Parkway Kansas
      City, MO. My case managers [sic] name is Roy Rambo and his contact
      information is (816) 213-0058. If you have any questions or need
      documentation of my diagnosis he will be able to accommodate you
      with the information that you will need. I deeply apologize for missing
      my phone appointed hearing and I am very hopeful that you will be able
      to show grace and please allow a new phone hearing to be rescheduled.

The Appeals Tribunal reset the case for hearing “to determine whether [Mr. Walker]

had good cause for failing to participate”; evidence on the merits was also ordered to

be taken. The hearing occurred on December 4, 2018.

      The only evidence on the question of Mr. Walker’s receipt of the notices and

his reason for missing one of them is set forth in the hearing transcrip t as follows:



                                            4
Q. All right. Did you receive a copy of this notice in the mail?

A. Yes. I did.

Q. Did you call in to participate in that hearing?

A. No, I didn’t.

Q. All right. Why didn’t you call in for that hearing?

A. Because, uh, I deal with—I was confused about this, uh, the first
package or the second package which I had called in at 12:30 but the
one prior to that, I believe it was 1:15 I mean. I didn’t—I called in at
1:15 but I didn’t call in at 12:30 because I was confused and I deal with
a mental illness and I just—I just got, uh, I was overwhelmed. This is
my first time, uh, going through, uh, appeals or trying to get
unemployment so I was just confused and it—it—it—it—I couldn’t
under—I really didn’t understand what I needed—what I needed to do.

Q. So just to make sure I understand it. You said you had a 12:30
hearing and 1:15 hearing that day?

A. Yes, sir.

Q. Okay. As I’m looking through the, uh, this is the first packet, uh,
which included your appeal documents at the end. That included a, uh,
a determination about, um, uh, I think it was about, um, earnings, um
about—about how you may have earned. Is that—was that what the
other issue was?

A. Uh?

Q. The one you called in for. Do you remember what was discussed in
that hearing?

A. I believe that one was because, uh, they wanted to determine if I
was, uh, capable for, uh, uh, going—going back to work after I gave a
doctor’s note.

Q. Okay. All right. When the—the package you received, did you
notice when you received them that they were two different hearing
times?

A. No, sir.




                                    5
Q. Okay. The hearing that you did call in for, was the employer a party
to that hearing? Were they in that hearing?

A. No. No, sir.

Q. Okay. When did you realize you had missed the 12:30 hearing?

A. After, uh, I had my witness in the car and they—they told me to step
out of the car and I—I stepped out of the car and I was talking to the,
uh, Referee and then when he said that that’s all he needed to know and
I was wondering when I was going to be able to defend myself with Mr.
Crawford and I—that was it. I didn’t have the opportunity so I reckon
I—I made a mistake.

Q. Okay. So—so I just want to be clear and I believe we asked this but
I wasn’t –I wasn’t sure I understood it. When—when you received all
the documents in the mail for the two hearings, uh, on—on November
5 th , did you notice that they—they were two different notices with two
different times?

A. No, sir. I—I only read, uh, the one at 1:15 and I made sure that I
called in that day because that’s the only one. I—I—I reckon I
missed—I reckon the—the other one at 12:30.

Q. Okay. Is there anything else you want to tell me about your failure
to participate in the previous hearing?

A. Uh, I—I was confused and with the type of work and documents
because this is my first time going through it.

Q. Okay. I also want to ask, you mentioned, uh, a mental health issue
and—and confusion. Is that confusion related to your mental health
issues?

A. Yes, sir.

Q. Okay. So what—what is that mental health issue that caused your
confusion?

A. I get—what I do is paranoid schizophrenic [sic] and a lot of times
things just get confusing and I can’t understand a lot of times what—
what I supposed [sic] to be doing and, uh, it just a mental illness that I—
I deal with.

Q. Okay. Again anything else you’d like to tell me, uh, for now just
about the failure to participate in the previous hearing?

                                    6
      A. No, sir.

The employer did not object to this testimony.

      The Appeals Tribunal determined that Mr. Walker did not show good cause for

failing to participate in the 12:30 p.m., November 5, 2018, hearing. Without

addressing the merits of the claim and basing its good-cause determination on two

grounds, the tribunal stated, “[1] The claimant failed to provide any competent

evidence to show that his mental health issues caused him to miss the hearing. [2]

The claimant admitted he had not read the notice. It was the claimant ’s failure to

read the notice, not any confusion, which prevented him from participating in the

hearing.” Its conclusion regarding the lack of “competent” evidence was based on

the tribunal’s specific finding that “[t]he claimant did not present any medical

evidence regarding his condition.” The Appeals Tribunal nevertheless prefaced that

factual finding by stating, “[t]he claimant suffers from a mental health issue. The

claimant’s condition sometimes causes him confusion.” It did not indicate that it did

not believe Mr. Walker’s testimony about his mental health and its effects on his life.

It did not make any finding about his testimony that the confusion caused by his

mental health affected his cognitive ability to discern that he was required to

participate in two hearings on November 5, 2018.

      Mr. Walker appealed this ruling, asking for another opportunity to explain how

his mental illness caused confusion and the inability to read some paperwork and to

present the testimony of his case manager on this matter, once again providing the

manager’s contact information as well as the contact information for the manager’s




                                           7
supervisor. Adopting the decision of the Appeals Tribunal as its own, the

Commission affirmed. Mr. Walker appeals.

                                           Legal Analysis

          In the pro se brief, Mr. Walker seeks to address the merits of the

unemployment compensation claim, which the Commission did not decide, but also

contends that “the Commission erred in denying unemployment benefits to the

appellant for missing a previous telephone hearing. 2 Due to the appellant’s mental

status he became confused and was unaware of what was required of him, causing

him to miss his hearing.” Thwarted in his attempt at this late date to introduce

doctors’ letters to the legal file, 3 a reply brief was filed on his behalf by a “friend of

the court” including documents purporting to show that Mr. Walker (1) was seen and

evaluated in a hospital emergency room before his two-day absence from work and

(2) has been diagnosed with schizophrenia, which creates anxiety in certain situations

and interferes with his ability to concentrate.

          Under section 288.210, “Upon appeal no additional evidence shall be heard.” 4

So any evidence outside the hearing record may not be considered in determining

whether Mr. Walker showed good cause for failing to participate in the November 5,

2018, merits hearing. Our review is limited to the Commission’s good-cause

determination and to the following:




2
 Because the Commission’s decision does not address the merits of Mr. Walker’s appeal of the
deputy’s determination, this court may not consider the matter further.
3
    We denied the motion for evidence that Mr. Walker filed.
4
    Statutory references are to RSMo (2016) as supplemented, unless otherwise indicated.

                                                   8
      (1) That the commission acted without or in excess of its powers;

      (2) That the decision was procured by fraud;

      (3) That the facts found by the commission do not support the award; or

      (4) That there was no sufficient competent evidence in the record to
          warrant the making of the award. . . .

§ 288.210. Further, “[t]he findings of the commission as to the facts, if supported by

competent and substantial evidence and in the absence of fraud, shall be conclusive,

and the jurisdiction of the appellate court shall be confined to questions of law. ” §

288.210. “We do not defer to the Commission’s conclusions of law or its application

of the law to the facts. Additionally, where, as here the Commission adopts the

decision of the Appeals Tribunal, we consider the Tribunal ’s decision to be the

Commission’s for purposes of our review.” Mandacina v. Harrah's of N. Kansas

City, 512 S.W.3d 98, 101 (Mo. App. W.D. 2017) (citation omitted). The Commission

“has the right to pass upon the credibility of witnesses, but where the record reveals

no conflict in the evidence or impeachment of any witness, the reviewing court may

find the award was not based upon disbelief of the testimony of the witnesses. ” Corp

v. Joplin Cement Co., 337 S.W.2d 252, 258-59 (Mo. banc 1960) (“Where the

evidentiary facts are not disputed, the award that should be entered by the Industrial

Commission becomes a question of law and the Commission’s conclusions are not

binding on the appellate court.”); see also Abt v. Miss. Lime Co., 388 S.W.3d 571, 578

(Mo. App. E.D. 2012) (quoting Corp); Peck v. LaMacchia Enters., 202 S.W.3d 77, 82

n.6 (Mo. App. W.D. 2006) (“[T]he Commission may not disregard or ignore




                                            9
undisputed testimony of a witness not shown to have been impeached or disbelieved

by the agency.” (citation omitted)). 5

       “Good cause” is defined, for purposes of what must be shown when a claimant

fails to appear at a hearing, as “those circumstances in which the party acted in good

faith and reasonably under all the circumstances.” M O . C ODE R EGS . A NN . tit. 8, §§

10-5.010(2)(C) & 10-5.035(2)(B) (2018). This definition is the touchstone for our

analysis, so our focus should be on why Mr. Walker missed the notice of the 12:30

p.m. hearing, i.e., whether, under the circumstances, the evidence showed that he

acted in “good faith” and “reasonably.”

       When reviewing a good cause-based decision, “we determine whether the

Commission abused its discretion in refusing to set aside the dismissal for failure to

show good cause. Abuse of discretion is shown where the outcome is so arbitrary and

unreasonable as to shock the sense of justice and indicate a lack of careful

consideration.” Earth City Supply LLC v. Div. of Emp't Sec., 527 S.W.3d 92, 94 (Mo.

App. W.D. 2017) (citations omitted). “We may not substitute our judgment on the

evidence and when the evidence before the Commission would warrant either of two

opposed findings, we are bound by the Commission’s determination.” Wunderlich v.

Jensen, 496 S.W.3d 522, 527 (Mo. App. W.D. 2016).




5
  The Commission here did not indicate that it disbelieved Mr. Walker’s testimony; rather, it stated
that a lack of competent evidence, i.e., medical evidence, “to show that his mental health issues
caused him to miss the hearing” and his admitted failure to read the notice prevented his
participation. Although the Commission believed and found that Mr. Walker had mental health
issues that sometimes caused him confusion, it unmoored that finding from his testimony that his
condition made him unable to understand that he was required to call th e Appeals Tribunal twice on
November 5, 2018.


                                                 10
      On the basis of Mr. Walker’s hearing testimony, the Commission found that

mental illness can cause him confusion. It also found that Mr. Walker received

notification of two hearings that would be held back-to-back on a single day and

“only read the notice for the 1:15 p.m. hearing,” in which he duly participated.

Because Mr. Walker had also received notice of the 12:30 p.m. hearing, but failed to

read it, the Commission concluded that he did not demonstrate good cause for failing

to participate in that hearing. Quoting Flanigan v. City of Kansas City, 926 S.W.2d

98, 102 (Mo. App. W.D. 1996), the Commission stated, “Although there are many

forms of neuroses, nervous disorders, and manifestations of psychological illness, the

existence of a diagnosis of illness does not necessarily excuse the individual from

responsibility for actions.” I do not find Flanigan particularly persuasive on the

issue of whether Mr. Walker had good cause to miss the 12:30 p.m. hearing in that,

unlike here, that case involved the claimant’s eligibility for benefits and not whether

the claimant’s failure to participate in a merits hearing, under the circumstances, was

a result of good faith and reasonable action. As well, in Flanigan we found, despite

medical evidence in the record, that the Commission’s denial of benefits was based

on sufficient evidence showing that the claimant was not without some responsibility

for her own workplace misconduct. Id. at 103.

      The Commission’s decision here is based on what it deemed Mr. Walker’s

failure to provide “any competent evidence” showing that his mental illness caused

him to miss the hearing notice. Although the Commission accepted as competent,

and apparently believed, Mr. Walker’s testimony about the relationship between his

mental illness and his confusion, the Commission focused on the statutes and



                                           11
regulations concerning the evidentiary presumptions of hearing notices mailed to

participants and on what it called his “admission” that “he had not read the notice”

about the 12:30 p.m. hearing. 6 It apparently believed that the evidence did not show

a link under these circumstances between Mr. Walker’s confusion and his failure to

read the notice. In this regard, I believe that the Commission improperly disregarded

competent evidence in the record, i.e., Mr. Walker’s unobjected-to and uncontradicted

testimony that his failure to participate in the merits hearing was due to the confusion

that mental illness causes in his life. 7 I have been unable to find case law indicating

that medical evidence, which the Commission specifically noted was no t presented, is

required to show that a claimant acted in good faith and reasonably in failing to

participate in an appeals hearing where a claimant’s mental illness purportedly caused

him to miss one of two hearing notices when the Division scheduled two hearings




6
 The Commission’s characterization of Mr. Walker’s testimony is not accurate. As indicated above,
Mr. Walker testified that he had “missed” one of two notices for hearings scheduled on the same day.
Missing a notice and not reading it may be two sides of the same coin, but, as discussed further
below, it is all of the circumstances and whether a claimant takes affirmative action on receiving a
notice of hearing that are determinative of a good-cause showing in cases involving a misreading of
or failure to read a hearing notice.
7
  Mr. Walker’s supervisor, Mr. Charles Crawford, participated in the good -cause part of the
December 4, 2018, hearing. After Mr. Walker linked his mental illness with his confusion o ver the
hearing documents and hence his failure to participate in the merits hearing, Mr. Crawford was asked
if he had any questions for Mr. Walker regarding why he failed to participate in the November 5,
2018, hearing. Mr. Crawford’s response was, “No, sir.” Even hearsay evidence, unobjected to
during an administrative hearing, may “be considered as substantial and competent for purposes of
the agency’s findings.” Jenkins v. George Gipson Enters., LLC, 326 S.W.3d 839, 842 (Mo. App.
E.D. 2010); M O . C ODE R EGS . Tit. 8, § 10-5.015(10)(B)4 (“Any evidence received without objection
which has probative value shall be considered by the hearing officer along with other evidence in the
case[.]”). See also cases addressing “back-door” appellate sufficiency challenges to expert testimony
whose admissibility has not been questioned during an administrative hearing. Lacy v. Fed. Mogul,
278 S.W.3d 691, 700 (Mo. App. S.D. 2009) (finding expert testimony admitted without objection
competent, with credibility and weight for the Commission to assess). Here, the Commission made
no finding as to the credibility or weight of Mr. Walker’s testimony linking his mental illness and
confusion with his failure to see the 12:30 p.m. hearing notice, nor did it even mention that
testimony, thus supporting my conclusion that the Commission in fact improperly ignored it .


                                                 12
back-to-back on the same day. 8 I am concerned that the Commission may henceforth

require medical evidence in a good-faith hearing to support a claim that a mental-

health problem led the claimant to act as he or she did. This may raise the

evidentiary bar too high for more than a few good-cause claimants.

       The Commission here premised its ruling on a lack of competent evidence

showing that Mr. Walker’s mental illness caused him to miss seeing the 12:30 p.m.

hearing notice. 9 The uncontested, documentary evidence the Commission had before

it, however, consisted of a record of disciplinary actions against Mr. Walker for

coming in late, leaving early, or being absent from work; going to a work site when it

was closed; and failing to follow instructions or cooperate with supervisors. Mr.

Walker testified about his paranoid schizophrenia and the effect it had on his life,

including causing confusion and anxiety and making him unable to understand what

he is supposed to do at different times, including understanding that two notices for

two different hearings had been sent to him. His testimony was uncontradicted and

unimpeached, and the Commission did not indicate in any way either that it

considered that evidence or did not believe him. His testimony is also consistent with


8
  I understand that many Missouri courts have rejected a compensation award where the claimant
fails to introduce medical evidence to support a claim that he or she had good cause to voluntarily
terminate employment, unless the causal connection is within the common knowledge or experience
of a layperson. See, e.g., Martin v. Div. of Emp't Sec., 460 S.W.3d 414, 419-20 (Mo. App. W.D.
2015). I believe, however, that proof of good cause for missing a hearing is not the same as show ing
eligibility for unemployment-compensation benefits.
9
  To the extent that lack of medical evidence contributed to the Commission’s decision, I seriously
question whether any medical professional would testify to a reasonable degree of medical certainty
that Mr. Walker’s schizophrenia specifically interfered wi th his ability to discern on the day he
received the hearing documents that he had two hearings to participate in on November 5, 2018.
Holding Mr. Walker to such proof to show good cause for missing a hearing under these
circumstances does not comport with the liberal construction accorded to Missouri’s employment
security laws. Piloski v. Div. of Emp’t Sec., 503 S.W.3d 253, 259 (Mo. App. W.D. 2016) (citing
section 288.020).


                                                 13
his work record, and he submitted a statement with his request for reconsideration

addressing his disability and diagnosis which he expressly linked to his confusion

about the two hearings. The case notes as documented by the Appea ls Tribunal for

the 12:30 p.m. hearing reflect that Mr. Walker called in at 2:08 p.m. that day and said

he did not know he was supposed to call in for the 12:30 hearing and “[c]laims to

have a mental illness.”

       While our courts have deemed unreasonable a failure to read or to properly

read a hearing notice, this is not a per se rule, as each case is assessed on its

individual circumstances. We applied this principle in Speed v. Division of

Employment Security, 402 S.W.3d 153 (Mo. App. W.D. 2013). The claimant there

had called into the hearing about ten minutes too early, was disconnected after

waiting on hold, and then tried to call in again six minutes after the scheduled time.

Id. at 154. Her error, according to the Commission, was that she had not called in at

exactly the correct time and thus had not made a good-faith effort to participate. Id.

at 155. We reversed its good-cause determination, stating, “In some cases, although

the claimant failed to follow the instructions on how to appear, good cause may still

be shown for failing to appear when circumstances show claimant ’s ‘affirmative

efforts’ to do so.” Id. at 155 (citing Miller v. Rehnquist Design & Build, Inc., 311

S.W.3d 382, 384, 385 (Mo. App. E.D. 2010); Weirich v. Div. of Emp’t Sec., 301

S.W.3d 571, 576 (Mo. App. W.D. 2010)). We further noted, “Cases in which failure

to follow instructions resulted in affirming the Commission’s decision that a claimant

failed to show good cause generally showed no attempt by the claimant to be present

at the hearing—no affirmative effort to appear.” Id. (emphasis added). Here, Mr.



                                            14
Walker had arranged for a witness to participate in the November 5, 2018, hearing

and called in at 1:15 p.m., believing that this would be his opportunity to defend any

assertions that the employer would make about the circumstances leading to his

termination. His failure to see a second hearing notice or understand that he had to

call in twice on November 5, 2018, was due, according to uncontested testimony, to

the mental health issue that causes him confusion. Contrast these circumstances with

those in Jenkins v. Manpower on Site at Proctor & Gamble, 106 S.W.3d 620, 625

(Mo. App. W.D. 2003), where we upheld the Commission’s decision to dismiss an

appeal for lack of good cause where a claimant asserted that he failed to participate in

his telephone hearing because he did not read the hearing notice properly. In fact,

Mr. Jenkins had testified that he failed to read the notice proper ly because “I guess I

was also busy reading my other mail.” Id.

       Although it is unclear on this record whether the notices for the two hearings

arrived in a single mailing, the record shows that Mr. Walker and a witness

participated in the 1:15 p.m. hearing that day, and he tried to rectify the mistake about

the 12:30 p.m. hearing immediately. 10 No reason other than the confusion caused by

mental illness can possibly explain why Mr. Walker would have called into one

hearing but not the other. And this writer must confess that in twenty years on the

bench, I have never before come across a case involving two hearings scheduled by

the Commission on the same day.



10
  I would note that packets relating to the November 5 and December 4 hearings r eviewed by the
referee and admitted during the evidentiary hearing include duplicate documents, are scrambled in
the legal record on appeal, and do not include anything relating to the 1:15 p.m. hearing. If the
Commission cannot put together a coherent record, it is unreasonable to expect an individual with
paranoid schizophrenia manifesting in confusion and anxiety to fully understand that record and
comply with its requirements.

                                                15
      I believe that the Commission abused its discretion and improperly disregarded

competent evidence in not concluding that Mr. Walker’s mental illness caused the

confusion that resulted in missing the notice for the 12:30 p.m. hearing, particularly

where he had two hearings within forty-five minutes on the same day and participated

with a witness in one of them thus demonstrating an affirmative effort to comply with

the meeting notices. I would also find that the Commission erred by misconstruing

Mr. Walker’s testimony and separating the failure to focus on, read, and understand

the merits-hearing notice from the mental illness that he testified interfered with this

cognitive ability to do so. Mr. Walker met his burden of showing that he acted in

good faith and reasonably under the circumstances and thus had good cause for

missing the November 5, 2018, 12:30 p.m. merits hearing. I would grant this point

and reverse and remand for the Commission to direct the Appeals Tribunal to make a

determination on the merits of Mr. Walker’s appeal.




                                         /s/Thomas H. Newton
                                         Thomas H. Newton, Presiding Judge




                                           16
