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Wilson v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 21, 2007

ELISA WILSON, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND DRY DOCK RESTAURANTS, RESPONDENTS-RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 111,004.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Claimant Elisa Wilson appeals from a July 21, 2006 final decision of the Board of Review, dismissing her appeal as untimely. We affirm.

I.

Wilson applied for and was granted temporary disability benefits, based on a work-related injury she suffered in September 2003. She appealed the determination of the deputy granting her benefits, claiming that she was entitled to a higher weekly benefit amount. After a hearing, the Appeal Tribunal affirmed the amount awarded by the deputy. The Appeal Tribunal's decision was mailed to Wilson on May 22, 2006. The decision included a notice to Wilson that any further appeal must be filed within ten days of the date of mailing of the decision, as required by statute, N.J.S.A. 43:21-6(c). However, consistent with the agency's regulations, N.J.A.C. 12:20-4.1(h), the notice also advised Wilson that

[t]he appeal period will be extended if good cause for late filing is shown. Good cause exists in situations where it can be shown that the delay was due to circumstances beyond the control of the appellant which could not have been reasonably foreseen or prevented.

Wilson's appeal was thus due on June 1, 2006. She sent the Board an appeal by letter dated June 5, 2006, which was received at the Board on June 12, 2006. Her letter explained that she could not get the letter copied and mailed sooner because her feet were swollen "for the past 3 days" and she could not leave her house. She did not, however, explain why she did not even begin preparing the appeal letter until four days after it was due to be filed at the Board. The Board dismissed her appeal as untimely.

II.

We may not disturb the Board's decision unless it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The Board's decision passes muster under that standard of review. R. 2:11-3(e)(1)(D). Claimant's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

On this appeal, Wilson contends that she made a showing of good cause for the late filing based on her "work-related physical impediments which limited her mobility" and "her financial constrain[t]s which restricted her access to legal counsel." Her brief does not repeat her contention, made to the Board, concerning her feet having been swollen leading to an inability to mail the appeal letter, nor does it explain why her appeal was dated several days after it was due to be filed with the Board. Her contention concerning lack of legal counsel was not raised before the Board as a reason for the late filing and hence may not be argued on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

20070821

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