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Terrill v. Board of Review

March 8, 2010

DARLENE M. TERRILL, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND TRIM GYM FITNESS CENTER, LLC, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 174,293.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2010

Before Judges Carchman and Parrillo.

Appellant Darlene M. Terrill appeals from a final decision of the Department of Labor and Workforce Development Board of Review affirming the Appeals Tribunal dismissal of appellant's appeal. In addition, the Board affirmed the determination that appellant was liable for the refund of unemployment benefits of $8,554. We reverse and remand for a new hearing on the merits of appellant's claim.

These are the relevant facts. In February 2006, appellant was employed as a sales manager at respondent Trim Gym Fitness Center, LLC. On February 12, 2007, appellant informed her employer that she was resigning effective March 1, 2007, due to health problems, which she attributed to work. She filed a claim for unemployment benefits and received benefits in the sum of $8,554. Thereafter, on December 27, 2008, the Appeals Tribunal determined that appellant was disqualified for benefits because she "left work voluntarily." In addition, the Tribunal concluded that appellant "failed to discuss [her] problems with [her] employer in an attempt to obtain other work prior to leaving." The Tribunal found that appellant's reason for leaving did not constitute good cause and that she was ineligible for benefits.

Two documents were sent to appellant. The first, the decision of the Appeals Tribunal, was mailed on December 27, 2007, and enclosed instructions regarding the appeal noted that the time for an appeal ran from "seven (7) calendar days after delivery or within ten (10) calendar days after the mailing of this notice." The second document was the request for refund of unemployment benefits and according to the face of that document, it was mailed on December 31, 2007. Appellant responded by submitting a single letter appealing the decision of the Appeals Tribunal as well as the alleged overpayment. That letter was dated January 8, 2008, and postmarked January 10, 2008. The appeal was timely as to the overpayment and four days delinquent as to the denial of her claim on the merits.

Appellant participated in a telephonic hearing on February 15, 2008. At the hearing, she testified that she received the Notice of Refund, which was date stamped as being mailed on December 31, 2007, on January 4, 2008. Appellant was unaware of the date on which she received the Notice of Determination, which was mailed on December 27, 2007. On February 19, 2008, the Appeals Tribunal issued a decision holding that the appeal was timely, and that appellant was disqualified for benefits, as she had left work voluntarily without good cause attributable to work. The Tribunal affirmed the determination of the deputy and the Director, and held appellant liable for refund of benefits in the sum of $8,554, received for weeks ending April 28, 2007 through October 20, 2007.

Appellant filed a timely appeal of the Appeals Tribunal's decision, and on April 14, 2008, the Board of Review remanded the matter for additional testimony regarding appellant's working conditions and how such conditions affected her health, for medical documentation to support her contentions, as well as to rule on the issue of timeliness of her appeal of the deputy's determination. The appellant and the employer appeared at a hearing on May 8, 2008. Appellant again noted that she did not recall when she received the notice of determination of the deputy. When asked by the hearing examiner, "Is there any reason that you didn't file your appeal sooner? Sooner to, in other words, they give a specific date on here." Appellant replied, "I don't-I don't have an answer."

On May 16, 2008, the Appeals Tribunal dismissed the appeal as untimely citing N.J.S.A. 43:21-6(b)(1). The Tribunal found no good cause having been established. The Appeals Tribunal made the following findings of fact:

The Deputy and the Director mailed a determination to the appellant's address of record on 12/27/2007. The claimant is unaware [sic] of when she received the determination of the Deputy or how long she had it.

The claimant received the determination of the Director on 1/4/2008.

The claimant filed an appeal to both determinations on 1/10/08. The appeal was not filed earlier because she did not decide to do so until this time.

On a claim for benefits dated 4/22/2007 with a weekly benefit rate of $329.00 the claimant received benefits totaling $8,554.00 for weeks ...


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