Opinion
DOCKET NO. A-4338-14T1
06-22-2016
JAMIE L. COHEN, Appellant, v. BOARD OF REVIEW and DOLCE VITA INTIMATES, LLC, Respondents.
Jamie L. Cohen, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Arielle E. Katz, Deputy Attorney General, on the brief). Respondent Dolce Vita Intimates, LLC, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 00021234. Jamie L. Cohen, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Arielle E. Katz, Deputy Attorney General, on the brief). Respondent Dolce Vita Intimates, LLC, has not filed a brief. PER CURIAM
Appellant Jaime L. Cohen appeals from a final decision of the Board of Review (Board), which found she had not filed a timely appeal challenging the denial of her claim for unemployment compensation benefits, and failed to establish good cause for the untimely appeal. We affirm.
Appellant was employed as a sales executive by respondent Dolce Vita Intimates (employer) from October 1, 2013 to March 6, 2014, when she tendered a resignation letter to the employer claiming she had been mistreated by management. She claimed that mistreatment negatively affected her physical and emotional health and, as she was pregnant at the time, that of her unborn child. Appellant filed a claim for employment compensation benefits after she resigned.
On May 23, 2014, a deputy of the Division of Unemployment and Disability Insurance mailed appellant a notice of determination (determination) stating she was disqualified for benefits because she had voluntarily left her job. Specifically, the deputy stated:
You left your job voluntarily because you felt that the work was adversely affecting your health. There is no documentation that the work either caused or aggravated your medical condition. Therefore, your reason for leaving does not constitute good cause attributable to the work.The notice stated that any appeal from the determination must be submitted in writing within seven days after delivery or within ten days after the date of mailing. The notice further indicated the tenth day after the date of mailing was June 2, 2014. Appellant's appeal was post-marked June 7, 2014.
The appeal tribunal scheduled the matter for a hearing on July 8, 2014, but the hearing did not go forward because by then appellant had lost the baby. The appeal was dismissed, without prejudice, and reopened for good cause a few weeks later. A hearing on the appeal was conducted on August 21, 2014.
During the hearing the appeals examiner asked appellant when she received and why she did not timely appeal the determination, which had been mailed to appellant on May 23, 2014. Appellant initially stated she had received the determination on May 24, 2014, but then changed her testimony and claimed she received it on May 27, 2014. Twice appellant testified she carefully read the appeal instructions on the notice of determination, and conceded she was aware she had seven days from the day she received the determination to submit the appeal. When asked why she waited until June 7, 2014 to mail her appeal, she replied:
Honestly, I don't know why. I don't really remember exactly like why. I knew that I was going through appeal time lapses as soon as I got it. I think I just wanted to collect my thoughts and put together a nice letter. And mail it out.
The appeal tribunal found appellant had not filed her appeal of the deputy's determination within the time required by N.J.S.A. 43:21-6(b)(1) and, because no good cause had been shown for filing the appeal out of time, found it did not have jurisdiction to rule on the merits of and dismissed the appeal.
Appellant filed a timely appeal of the appeal tribunal's decision to the Board. Contrary to her testimony before the appeal tribunal, appellant contended she misunderstood the time within which the appeal of the determination had to be filed because of stress she had been experiencing at the time. In its final decision the Board determined the appeal had been properly dismissed because the appeal had not been filed within the time required by N.J.S.A. 43:21-6(b)(1) and appellant failed to show good cause for the late filing. Thus, the deputy's determination was deemed final.
On appeal, appellant asserts she was unable to timely file the deputy's determination because of emotional stress she was under at the time she received the determination. For the first time she submits a letter from a licensed clinical social worker, who opined appellant was in a "compromised mental state."
The scope of our review in an appeal from a final determination of an administrative agency is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The agency's decision may not be disturbed unless shown to be arbitrary, capricious, or unreasonable. Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). 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. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
The time for filing an appeal from an initial decision of a deputy claims examiner on an application for benefits is governed by N.J.S.A. 43:21-6(b)(1), which states:
Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within [ten] calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith, except for such determinations as may be altered in benefit amounts or duration as provided in this paragraph.
In Rivera v. Bd. of Review, 127 N.J. 578 (1992), the Court found the statutory appeal process may not in all cases provide claimants with adequate notice of the time in which appeals must be taken challenging the denial of unemployment compensation benefits. Id. at 586-87. The Court stated, among other things, that a good cause exception to the statutory time limitations on the right to appeal would "go a long way toward protecting" the due process rights of persons seeking benefits. Id. at 590.
The Department of Labor and Workforce Development adopted a regulation defining the circumstances which constitute good cause for an untimely appeal. N.J.A.C. 12:20-3.1(i). The regulation provides 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 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.
[N.J.A.C. 12:20-3.1(i)(1) and (2).]
Here, the appeal tribunal accepted appellant's testimony she received the deputy's determination rejecting her claim for benefits on May 27, 2014. Notwithstanding explicit instructions in the determination setting forth when an appeal had to be submitted - which appellant acknowledged carefully reading and understanding to mean she had until June 3, 2014 to file an appeal - she failed to mail her appeal until June 7, 2014. During the hearing, appellant never attributed the late filing of the appeal to stress or any other emotional or mental condition. In fact, she said she did not remember exactly why she missed the deadline, although believed it was because she just wanted to "collect [her] thoughts and put together a nice letter."
In addition, appellant failed to raise before the appeal tribunal the issue that she was too impaired emotionally from filing a timely appeal of the deputy's determination. "[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . ." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). For the same reason, we may not consider the letter from the licensed clinical social worker. Although appellant raised before the Board the issue of being too stressed to timely file the appeal of the deputy's determination, the Board limited its consideration to the issues raised before the appeal tribunal. We find the Board did not err or abuse its discretion by limiting its consideration to the issues presented before the appeal tribunal.
We are satisfied the record supports the Board's determination that appellant failed to timely file an appeal of the deputy's determination under N.J.S.A. 43:21-6(b)(1) or establish good cause excusing that untimely appeal under N.J.A.C. 12:20-3.1(i).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION