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

1. (1) Dismissing an Appeal.

   1. (A) If it appears to an appeals tribunal that an appeal was not filed within the time allowed by law for that type of appeal, an order may be entered reciting the essential facts which establish the failure to file the appeal within the time allowed and dismissing the appeal. A copy of the order shall be mailed to each of the interested parties. Any party excepting to the order, within thirty

2. (30) days after the date of mailing of the order, may request that the order be reconsidered and that the matter be set down for hearing on both the timeliness of the appeal and the merits, in which event the matter may be scheduled for hearing on both issues.

   1. (B) If an appeal is not dismissed the matter may be scheduled for hearing on both the timeliness of the appeal and the merits.

3. (2) Failure to Appear.

   1. (A) Failure of the appellant to appear at the hearing shall constitute grounds for dismissal of the appeal by a written order.
   2. (B) Upon written request of the appellant, or upon its own motion, an appeals tribunal, upon a prima facie showing of good cause, 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.
   3. (C) A threshold issue to be decided at the hearing held to consider a dismissed appeal shall be whether the appellant had good cause for failing to appear for the prior setting. The merits of the appeal also may be heard. If good cause is not found, the appeals tribunal shall reinstate the order of dismissal. If good cause is found, the appeals tribunal also shall rule on the merits of the appeal.
   4. (D) When a written request to 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.
   5. (E) These procedures also shall apply to any case where an interested party, who is not the appellant, fails to appear for a hearing and the resulting decision is adverse to that party’s interests.

4. (3) Withdrawing an Appeal.

   1. (A) An appellant, subject to the approval of the appeals tribunal, may withdraw an appeal prior to the mailing of a decision. The withdrawal request must be in writing and signed by either the appellant or attorney, or entered orally on the record. If approved, the appeals tribunal shall issue a written order of withdrawal.
   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.
5. (4) For the purposes of sections 288.070.8 and 288.130.4, RSMo, and of this chapter, good cause shall be only those circumstances which are completely beyond the reasonable control of the party and then only if that party acts as soon as practical under the circumstances.

AUTHORITY: sections 288.190, RSMo 1994 and 288.220.5, RSMo Supp. 1995.* 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. *Original authority: 288.190, RSMo 1951, amended 1972, 1979, 1984 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 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).