                    MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT


PHILLIP A. PEAVY,                          )
                                           )   WD76827
                    Appellant,             )
   v.                                      )   OPINION FILED:
                                           )
DIVISION OF EMPLOYMENT                     )   August 5, 2014
SECURITY,                                  )
                                           )
                     Respondent.           )


         Appeal from the Labor and Industrial Relations Commission

                    Before Division Three: Gary D. Witt, P.J.,
                   Joseph M. Ellis, and Thomas H. Newton, JJ.


        Mr. Phillip A. Peavy appeals the decision of the Labor and Industrial Relations

Commission (Commission) affirming the dismissal of his unemployment benefits case.

We dismiss the appeal.

                         Factual and Procedural Background

        Mr. Peavy was separated from his employment in 2010. He filed a claim for

unemployment benefits. On July 8, 2010, a deputy of the Division of Employment

Security (Division) informed Mr. Peavy in writing that he was not eligible for benefits

because he was not an insured worker. The deputy’s determination was based on Mr.


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Peavy’s insufficient wage credits. The Division’s notice stated that Mr. Peavy had until

August 9, 2010, to file an appeal before the determination was final.

          In 2013, the Appeals Tribunal received a letter from Mr. Peavy that addressed his

employment benefit eligibility status. In that letter, he claimed to have made an appeal of

that determination on July 27, 2010. He further claimed that an agent from the Division

had contacted him in August 2010. The Appeals Tribunal dismissed his appeal for being

untimely. Mr. Peavy asked for reconsideration of the dismissal because he had appealed

on July 27, 2010, but had received no response for “59 months and 11 days.” The

Appeals Tribunal granted his request and set a hearing to hear the issues of timeliness of

appeal and the merits.

          The Appeals Tribunal sent Mr. Peavy a notice of telephone hearing, which

informed Mr. Peavy to call a designated toll-free number on May 9, 2013, at 9 a.m. Mr.

Peavy failed to call. His appeal was dismissed for nonappearance. Again, Mr. Peavy

requested reconsideration. The Division granted the request and set another hearing date,

this time to hear the issues of good cause for nonappearance, timeliness of appeal, and the

merits.

          At the hearing, Mr. Peavy admitted that he had received notice about the May

telephone hearing. He also admitted that he had read the notice and knew the time of

hearing was scheduled for 9 a.m. He claimed that he had failed to appear because he was

confused about calling in because the case law that he was reading that morning had

mentioned receiving a call. Upon discovery that he should call, Mr. Peavy claimed that



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he immediately called at 9:52 a.m. Evidence was also presented on the timeliness of the

appeal and the merits of the case.

          The Appeals Tribunal reinstated the dismissal for nonappearance because Mr.

Peavy’s failure to follow instructions did not constitute good cause under the law. The

Commission affirmed and adopted the Appeals Tribunal’s decision. Mr. Peavy appeals

pro se.

                                     Standard of Review

          In reviewing the Commission’s decision, “we determine whether the Commission

abused its discretion in refusing to set aside a dismissal for good cause.” Stevenson v.

Div. of Emp’t Sec., 359 S.W.3d 91, 93 (Mo. App. W.D. 2011). “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.” Id. (internal quotation marks and citation

omitted).

                                       Legal Analysis

          Mr. Peavy raises two points. In the first point, he argues that the Commission

erred in denying him unemployment benefits because competent and substantial evidence

did not support the decision, but showed that he was “discharged from his employment in

February 2010” and that the Division “did not dispute [that he] had received eligibility

for unemployment compensation.”         In the second point, Mr. Peavy argues that the

Commission erred in denying him unemployment benefits because competent and

substantial evidence did not support the decision “in that [he had] standing under federal

and state statutes.”

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      “On appeal, this Court may address only those issues determined by the

Commission and may not consider any issues that were not before the Commission.”

Hampton v. Aerotek, Inc., 427 S.W.3d 841, 841-42 (Mo. App. E.D. 2014).              The

Commission’s decision did not address the merits, but instead addressed Mr. Peavy’s

failure to appear. Although Mr. Peavy mentions the dismissal of his appeal in his brief,

his points and arguments challenge only the deputy’s determination rather than the

Commission’s dismissal. Consequently, we do not have an issue to review. Mr. Peavy’s

appeal is therefore abandoned.

                                      Conclusion

      For the above reason, we dismiss the appeal.




                                               /s/ THOMAS H. NEWTON
                                               Thomas H. Newton, Judge


Witt, P.J. and Ellis, J. concur.




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