NATASHA SEARLES v. BOARD OF REVIEW DEPARTMENT OF LABOR ARC GLOUCESTER COUNTY (2013)

Appellant Natasha Searles appeals from a final decision of the Board of Review (Board) dismissing her appeal as untimely, N.J.S.A. 43:21–6(c).  Our examination of the record satisfies us that the Board's final decision was properly premised on facts in the record and is consonant with relevant statutory provisions.   Accordingly, we affirm.

The record discloses the following facts and procedural history leading to the administrative determination under review.

On March 25, 2007, Searles filed a claim for unemployment compensation benefits.   The deputy claims examiner determined that Searles was eligible for benefits.   Searles' employer, ARC Gloucester County, filed an appeal with the Appeal Tribunal.   A hearing was scheduled on May 15, 2007, but Searles failed to appear.   The Appeal Tribunal determined that Searles was disqualified for benefits as of February 11, 2007, because she left work voluntarily without good cause attributable to that work, N.J.S.A. 43:21–5(a).   The Appeal Tribunal's decision was mailed to Searles on May 15, 2007.   On May 25, 2007, Searles filed an appeal with the Board.

In a June 25, 2007 order the Board remanded the matter to the Appeal Tribunal for rehearing and decision.   A hearing was scheduled on July 18, 2007, before the Appeal Tribunal, and Searles, as before, failed to appear.   The Appeal Tribunal again determined that Searles was disqualified from benefits as of February 11, 2007, as she left work voluntarily without good cause attributable to the work.   The Appeal Tribunal mailed its determination to Searles on July 18, 2007.   On October 23, 2010, over three years later, Searles filed an appeal of the Appeal Tribunal's decision with the Board.   In an April 13, 2011 order the Board dismissed Searles' appeal determining that the appeal was filed subsequent to the expiration of the statutory ten-day period from the date of the Appeal Tribunal's decision, and that good cause was not shown for such late filing, N.J.S.A. 43:21–6(c).  It is from that decision that Searles appeals.

The time for filing an appeal to the Board from a decision by the Appeal Tribunal is prescribed by N.J.S.A. 43:21–6(c), which states in pertinent part:

The parties shall be duly notified of such tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the board of review, unless further appeal is initiated pursuant to subsection (e) of this section within 10 days after the date of notification or mailing of the decision for any decision made on or before December 1, 2010, or within 20 days after the date of notification or mailing of such decision for any decision made after December 1, 2010.

In Lowden v. Bd. of Review, 78 N.J.Super.   467 (App.Div.1963), we held that the right to obtain unemployment compensation benefits is “purely statutory” and the “procedural aspects of the enforcement of such right are governed entirely and exclusively by the statute.”  Id. at 469.   We will not review the merits of a decision of the Appeal Tribunal unless the claimant files a timely appeal to the Board.  Id. at 468–69.

Furthermore, in Rivera v. Bd. of Review, 127 N.J. 578 (1992),

the Court held that claimants in unemployment compensation matters have a due process right to notice, which must be considered when applying the statutory appeal requirements.  Id. at 586.   The Court held that, in certain circumstances, a claimant's failure to file a timely appeal may be excused for good cause.  Id. at 590.

Following the Rivera decision, the Board adopted a regulation, which established the factors that constitute good cause for failing to file an appeal within the statutorily-prescribed time.  N.J.A.C. 12:20–4.1(h) states that:

A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause.   Good cause exists in circumstances where it is shown that:

1.  The delay in filing the appeal was due to circumstances beyond the control of appellant;  or

2.  The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

Here, the record shows that the Appeal Tribunal mailed its decision to Searles on July 18, 2007.   Searles waited over three years, until October 23, 2010, to file her appeal with the Board.   In her letter of appeal, Searles did not provide good cause for the late filing.   Searles alleges she was in a car accident on May 3, 2007, and for this reason she was unable to appeal the Appeal Tribunal's July 18, 2007 decision.   However, this May 3, 2007 accident did not prevent Searles from appealing the Appeal Tribunal's May 15, 2007 decision, which she filed on May 25, 2007.   We also note that Searles failed to provide any medical documentation regarding her injuries or any information beyond bald assertions as to why she waited over three years to file her appeal.

We are therefore satisfied that the record supports the Board's finding that Searles' appeal was not filed within the time prescribed by N.J.S.A. 43:21–6(c), and Searles failed to establish good cause for her failure to file a timely appeal.

Affirmed.

PER CURIAM