ST. LOUIS — The Missouri Court of Appeals for the Eastern District has reversed a decision by the Labor and Industrial Relations Commission that dismissed as untimely an appeal by a St. Louis County employee in his workers’ compensation case against the state’s Second Injury Fund.
The appellate court ruled that the commission’s conclusion, which was that John Tippit failed to file his application for review within the required 20 days, was not supported by sufficient evidence in the record and sent the case back to the Commission for further proceedings, according to the Oct. 31 decision.
Tippit first filed a workers’ compensation claim in January 2016, alleging an injury sustained on Sept. 25, 2015, while working for St. Louis County.
He later settled his claim with the county in December 2016, but his claim against the Second Injury Fund remained pending.
After Tippit’s attorney passed away in December 2020, he retained new counsel, James Martin, in June 2021.
Martin attempted to file an entry of appearance on Tippit’s behalf, but the Division of Workers’ Compensation’s records did not show receipt of the filing, and Martin was never formally listed as counsel of record.
On July 6, 2022, the Division sent Tippit a “Notice to Show Cause Why Claim Should Not Be Dismissed” by certified mail. The notice stated that Tippit needed to contact an Administrative Law Judge by email at “2:30 AM” on Sept. 14, 2022, to address the case’s status. Certified mail tracking showed the notice was delivered to Tippit’s address on July 9, 2022.
Tippit did not respond, and on September 14, 2022, the judge issued a memorandum moving for dismissal of the case for failure to prosecute. The Division’s records show that on Sept. 19, 2022, the judge signed and entered an official “Order of Dismissal” with prejudice.
The Division’s tracking records indicated that the dismissal order was mailed on Sept. 15, four days before the order was actually signed and entered. The certified mail tracking showed delivery to Tippit’s address on Sept. 19, the same day the order was signed. Martin filed a second entry of appearance on Tippit’s behalf a week later, which the Division received on Sept. 27, officially listing Martin as Tippit’s counsel.
In May 2023, Tippit filed an application for review, claiming that neither he nor his attorney had received notice of the dismissal until May 10, 2023.
He asked that the dismissal be set aside, arguing he never received the show-cause notice or the dismissal order. The Commission reinstated the claim for a limited purpose—to hold a hearing allowing Tippit to present evidence that he never received the documents.
After that hearing, the Commission concluded that the Division had properly sent the Sept. 19, 2022, dismissal order by certified mail and found that Tippit’s application, filed nearly eight months later, was untimely. Because the filing deadline was considered jurisdictional, the Commission dismissed Tippit’s appeal, stating it no longer had authority to act in the case.
The appellate court disagreed, finding that the Commission’s conclusion lacked factual support. The court emphasized that, under Missouri law, a claimant has 20 days to file an application for review of an administrative law judge’s decision, and that the time limit begins only after the Division has properly served notice of the award.
The Division’s records are considered prima facie evidence of mailing, but the appellate panel noted inconsistencies in those records that undermined the presumption of proper notice.
Specifically, the court observed that the Division’s records showed the dismissal order was mailed on Sept. 15, before it had been signed and entered on Sept. 19, and that there was no testimony clarifying this discrepancy. The “dismissal memorandum” signed on Sept. 14 did not constitute a final order and could not serve as notice under the statute.
The court also found no evidence that Tippit received actual notice of the dismissal before May 2023.
Because the evidence failed to show that the Division complied with statutory notice requirements, the appellate judges ruled that the 20-day filing deadline never began to run. As a result, Tippit’s May 2023 application for review was not untimely.
Presiding Judge Gary M. Gaertner Jr. wrote that the Commission erred in dismissing Tippit’s appeal, and the appellate panel reversed the decision.
The case is being remanded for the commission to determine whether Tippit had good cause for failing to respond to the earlier show-cause notice and whether he had good cause for failing to prosecute his claim.
Judges Rebeca Navarro-McKelvey and James M. Dowd concurred in the decision.
Missouri Court of Appeals for the Eastern District case number: ED113466
