PURPOSE: This rule establishes procedures for dismissal of certain appeals.

1. (1) Timeliness of Appeals. If it appears to the hearing officer, upon examination of the file, that an appeal was not filed within the time allowed by statute, the hearing officer may:

   1. (A) Dismiss the appeal; or
   2. (B) Set the matter for hearing to include consideration of the merits of the appeal in addition to the timeliness of the appeal. If it is found that no timely appeal was filed, the hearing officer shall dismiss the appeal without ruling on the merits.

2. (2) Failure to Appear for Hearings.

   1. (A) If the appellant fails to appear at a hearing at the scheduled time or location, the appeal shall be dismissed.
   2. (B) If such dismissal is set aside, the matter shall be scheduled for hearing. The threshold issue shall be whether the appellant had good cause for failing to appear for the prior setting. The merits of the appeal may also be heard. If good cause is not found, the 8 CSR 10-5

hearing officer shall reinstate the order of dismissal. If good cause is found, the hearing officer shall rule on the merits of the appeal.

1. (3) Dismissal of Appeals.

   1. (A) An order of dismissal shall recite the essential facts, which establish the failure to file the appeal within the time allowed by statute or the failure of the appellant to appear at the scheduled time, and the order dismissing the appeal.
   2. (B) Copies of the order of dismissal shall be mailed to all parties.
   3. (C) Upon written request of the appellant, or upon its own motion, a hearing officer may set aside an order of dismissal and have the appeal reset for hearing if the request and set aside occur within thirty (30) days of the dismissal.
2. (4) Withdrawal of Appeals. An appellant, subject to the approval of the hearing officer, may withdraw an appeal prior to the mailing of the decision. The withdrawal request must be in writing and signed by either the appellant or the appellant’s representative, or entered orally on the record. If approved, the hearing officer shall issue a written order of withdrawal.

3. (5) Application for Review.

   1. (A) When a written request to reconsider or set aside an order of dismissal is not granted, the request shall be considered an application for review to the Labor and Industrial Relations Commission.
   2. (B) Any written request by the appellant to set aside an order of withdrawal shall be considered an application for review to the Labor and Industrial Relations Commission.

AUTHORITY: sections 288.190 and 288.220.5, RSMo 2000.* Original rule filed Dec. 14, 1982, effective March 13, 1983. Emergency amendment filed July 12, 1984, effective Aug. 13, 1984, expired Dec. 10, 1984. Amended: Filed July 12, 1984, effective Oct. 11, 1984. Amended: Filed Oct. 17, 1988, effective March 26, 1989. Emergency amendment Filed July 25, 1996, effective Aug. 28, 1996, expired Feb. 23, 1997. Amended: Filed July 25, 1996, effective Jan. 30, 1997. Rescinded and readopted: Filed April 30, 2002, effective Oct. 30, 2002.

*Original authority: 288.190, RSMo 1951, amended 1972, 1979, 1984, 1996 and 288.220.5, RSMo 1951, amended 1955, 1961, 1963, 1967, 1971, 1995. On May 13, 1998, the Missouri Court of Appeals, Western District held that 8 CSR 10- 5.040(4), effective March 26, 1989, was INDUSTRIAL RELATIONS invalid as it applies to cases brought under section 288.130.4 because it is plainly inconsistent with the legislature’s intention and is an unreasonable restriction of an employer’s statutory right to an extension to the 15-day period for filing an appeal from the deputy’s determination. Pharmflex, Inc. vs. Division of Employment Security, Case No. WD 53233 (Mo. App. 1998).