Opinion
DOCKET NO. A-3642-13T3
06-08-2016
TANE BOGDANOSKI, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and JUPITER ENVIRONMENTAL SERVICES, Respondents.
Melvin R. Solomon argued the cause for appellant (Parsekian & Solomon, P.C., attorneys; Mr. Solomon, on the brief). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stephens, on the brief.) Respondent Jupiter Environmental has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from the Board of Review, Department of Labor, Docket Nos. 417,414; 408,648; and 417,416. Melvin R. Solomon argued the cause for appellant (Parsekian & Solomon, P.C., attorneys; Mr. Solomon, on the brief). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stephens, on the brief.) Respondent Jupiter Environmental has not filed a brief. PER CURIAM
The Board of Review rendered a final decision, finding claimant Tane Bogdanoski ineligible for benefits and liable for a refund and also determined his appeal was untimely. On appeal, claimant challenges that ruling and defends the tardiness of his appeal on the ground that he did not understand the determinations he received and their consequences because English is not his first language. For the reasons that follow, we affirm.
Claimant was employed by Jupiter Environmental Systems and worked in both New York and New Jersey. As the work was seasonal, claimant filed for and received unemployment benefits for a period of time in 2008, 2009 and 2010.
In three separate determinations mailed on April 25, 2011, the deputy director of the Division of Unemployment advised claimant he was ineligible for benefits and liable for a refund. Claimant appealed on November 9, 2012 and the three matters were consolidated for a telephonic hearing before the Appeal Tribunal (Tribunal). During the proceeding, claimant testified in English. He responsively answered the questions asked, providing detailed information as to his employment. He acknowledged receiving the deputy's letters but gave no excuse as to why he had waited nineteen months to appeal the determinations.
In October 2013, the Tribunal issued three separate decisions, one for each of the three periods of ineligibility. Although the Tribunal noted the appeal was untimely, it found good cause for the lateness, reasoning that claimant was elderly and English was not his first language. However, after analyzing the merits of the application, the Tribunal affirmed the deputy, finding that claimant was ineligible for benefits and liable for a refund.
Counsel described claimant as elderly during the telephonic hearing; there are no facts in the record to make this determination. --------
The Board found claimant's appeal was late without good cause, and therefore should not have been addressed on its merits, but instead dismissed. The Board stated:
The claimant's delay in filing due to his failure to read the determination is not considered a circumstance beyond the claimant's control or a circumstance which could have been foreseen or prevented. Likewise, his attorney's contention that the claimant is an elderly person and English is not his first language are not considered good cause for filing a late appeal. It is further noted that the claimant established he was able to effectively communicate in English during the hearing, without the assistance of an interpreter. Hence, the claimant's appeal is dismissed in accordance with N.J.S.A. 43:21-6(b)(1).
On appeal, claimant argues that as English is not his first language, he did not understand the determinations and their consequences.
The scope of our review of an appeal from a final determination of the Board of Review is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Its decision may not be disturbed unless it is shown to be "arbitrary, capricious, or unreasonable." Ibid. We can only intervene "in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994)).
Under N.J.S.A. 43:21-6(b)(1), a claimant has ten calendar days after the notification is mailed to appeal a determination of benefits. A refund determination becomes final "unless the person files an appeal . . . within 20 calendar days after delivery of such determination, or within 20 calendar days after such notification was mailed to his last-known address." N.J.S.A. 43:21-16(d)(1).
In Rivera v. Bd. of Review, 127 N.J. 578 (1992), the Supreme Court established a "good cause" exception to the time limitation for filing unemployment compensation appeals. Id. at 590. ("The allowance for good cause exceptions . . . would . . . go a long way toward protecting due-process rights."). Id. N.J.A.C. 12:20-4.1(h) states:
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 the appellant; or
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.
Claimant participated in the telephonic hearing without requesting an interpreter. He never asserted at any time that he did not understand the determinations mailed to him. He simply stated he did not file a timely appeal because he did not read the instructions. Claimant did not seek counsel to assist him until ten months after he received the determinations. Counsel then waited nine months to file an appeal. Claimant has not demonstrated good cause in filing an appeal nineteen months after the statutory deadline.
The Board's decision is supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION