September 19, 2011
LARISA SLUTSKAYA, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND HHCH HEALTH CARE, INC., RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 277,253.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 6, 2011
Before Judges Payne and Messano.
Claimant, Larisa Slutskaya, appeals from a final determination of the Board of Review dismissing her appeal from the denial of her claim for unemployment benefits on the ground that it was untimely.
The date of mailing of the denial of benefits by Deputy J. Hanley was March 9, 2010. N.J.S.A. 43:21-6(b)(1) requires that claimant file any appeal within seven calendar days after delivery of notification of the initial determination or within ten calendar days after such notification was mailed to her last-known address. Otherwise, the initial determination becomes final. Claimant's appeal was not filed until March 31, 2010.
In Rivera v. Board of Review, 127 N.J. 578 (1992), the Supreme Court held in a case in which unemployment compensation was denied to a Puerto Rican migrant worker employed in New Jersey because of the late filing of his appeal, that due process requires that adequate notice of the agency's rejection of a claim be given to the claimant, but left the "system for sending notice and treating untimely appeals" to the discretion of the agency. Id. at 590. As we have described the decision, in Rivera, the Court recognized that "state statutes providing for the payment of unemployment compensation benefits create in the claimants for those benefits property interests protected by due process." Id. at 584 (quoting Wilkinson v. Abrams, 627 F.2d 650, 664 (3d Cir. 1980)). It recognized further that, in the context of the case before it, due process required both adequate notice and an opportunity to be heard. Rivera, supra, 127 N.J. at 583. Although the Court acknowledged our decision in Louden v. Board of Review, 78 N.J. Super. 467 (App. Div. 1963) holding that the process due unemployment benefit claimants was defined and limited by State statute, thereby requiring strict adherence to the statute's ten-day filing requirement, the Court observed that its "understanding of property rights and the nature of due process has evolved significantly" since Louden was decided in 1963. Rivera, supra, 127 N.J. at 585. In the Court's view, "strict adherence to limitation periods without regard to their underlying purposes disserves the goals of justice." Ibid. (summarizing the holding of White v. Violent Crimes Compensation Bd., 76 N.J. 368, 376 (1978)). "Rather than being jurisdictional, the notice statute, N.J.S.A. 43:21-16(d), serves to implement or execute the due process protections mandated by the United States and New Jersey constitutions." Rivera, supra, 127 N.J. at 586.
[Garzon v. Bd. of Review, 370 N.J. Super. 1, 6 (App. Div. 2004).]
The "good cause" exception to time limitations on appellate filings imposed in unemployment benefit actions is now codified at N.J.A.C. 12:20-4.1(h), which provides:
(h) 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.
In the present matter, the record establishes that claimant was advised of her right of appeal and of the deadline for filing that appeal, which was March 19, 2010. The record does not reflect whether she was informed of the consequences of her failure to meet that deadline.*fn1 Additionally, we do not know whether, prior to her hearing before the Appeal Tribunal, claimant was informed that her appeal was untimely, of the good cause exception to the filing deadline, and what good cause might entail.
At the commencement of the hearing conducted by the Appeal Tribunal on May 17, 2010, the Appeals Examiner enumerated the issues on appeal, stating among other things:
[T]he first issue is timeliness of the appeal. Timeliness of the appeal means there was a Notice of Determination that was mailed out to the claimant that she was being held disqualified for benefits. It also advised the claimant that she had a right to appeal. If the claimant cannot show good cause why she did not appeal within that timeframe, the timeliness of the appeal becomes the primary issue. What that means is that I will rule on why the appeal is late and will not rule on the merits of the appeal. Do all parties understand the timeliness of the appeal?
No explanation was given at the hearing regarding what might constitute good cause.
Thereafter, the only inquiry on the subject of good cause consisted of the following exchange:
Q. Okay Ma'am. There was a notice of determination that was mailed out to you on March 8, 2010*fn2 that advised you that you were being held disqualified for benefits. Do you remember receiving that notice?
A. Yes. They said I was (inaudible) benefits.
Q. Okay. And on that notice ma'am it told you that you had a right to appeal.
A. Yes. I think I sent the letter.
Q. Okay. Okay. According to my records you did not appeal the March 8, 2010 letter.*fn3 Why didn't you appeal that disqualification?
A. I wasn't understand what's going on. That letter was - I have to find somebody who can explain for me and translate for me.
A. I got a second letter.*fn4
Q. No. The second letter was -
A. (Inaudible) the person to translate for me exactly what's going on in national language.
A. Then I sent the appeal.
Q. How long was it that you had the first appeal - I mean the first letter before you had somebody translate it?
A. I don't remember. Sorry. I don't know why. I don't remember.
Q. So you don't remember when you received it.
A. I don't remember. I so sorry.
Q. Okay. So when you got the second letter, the second letter came - that was mailed to you on March the 24th. Then you had somebody read that one to you?
A. Right. Yes. I found translator. The person exactly translate to me what's going on. They explained to me and help me write the letter. Maybe you received my letter.
Q. I have all the letters. Okay. So the only reason you didn't appeal the first letter*fn5 was because you didn't understand it.
A. Yes. Absolutely.
Q. Okay. Duly noted ma'am.
On the basis of this colloquy, the Appeals Examiner ruled:
The Deputy mailed a determination to the appellant's address of record on 03/09/10. The claimant could not remember on what date the determination was received. The claimant filed an appeal on 03/31/10. The appeal was not filed earlier because the claimant did not understand what she needed to do to file.
N.J.S.A. 43:21-6(b)(1) provides that an appeal must be filed within ten (10) days of the mailing of the determination, or within seven (7) days of the receipt of the determination. The appeal was not filed within these limits and good cause has not been shown for the appeal being filed late. The Tribunal has no jurisdiction to rule on the merits of the appeal. The appeal is dismissed.
The Appeals Examiner's opinion was affirmed in a final decision by the Board of Review. This appeal followed.
Our review of the transcript in the hearing in this matter satisfies us that claimant had great difficulty understanding spoken English, and that her answers to many of the questions asked by the Appeals Examiner were totally unresponsive and given in broken English. The record does not reflect the identity of claimant's native country or language, because those questions were never asked. Claimant was never asked whether she understood spoken English sufficiently well to provide accurate responses to the questions asked of her at the hearing.
Similarly, the Appeals Examiner did not inquire into the extent of claimant's ability to read and understand English so as to know that a timely response was required to preserve her appellate rights. Further, there was no inquiry into the extent of claimant's efforts to locate a translator and to obtain both an accurate translation of the document at issue and an understanding of its content. Claimant was given no opportunity to further elaborate on the testimony given on the issue of good cause, and indeed, was admonished throughout the hearing when she attempted to volunteer information that she considered to have been relevant to her claim.
Additionally, as we have stated previously, the record - which may be incomplete - does not reflect any notice to claimant at the time that her claim was denied that failure to comply with stated time limitations on appeal would be regarded as jurisdictional. And as a final matter, there is no evidence in the record that, prior to the Appeal Tribunal hearing, claimant was informed that the timeliness of her appeal would be a threshold issue, that a lack of timeliness could be excused by evidence of good cause, and what types of evidence would constitute good cause.
In summary, the record in this matter fails to establish that claimant had notice that she would be required to establish before the Appeal Tribunal good cause for the untimely submission of her notice of appeal and that she was informed what good cause might entail. Due process requires that a party giving testimony at a hearing such as this receive "notice defining the issues and an adequate opportunity to prepare and respond." McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978)). "'There can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice.'" Nicoletta, supra, 77 N.J. at 162 (quoting Dep't of Law & Pub. Safety v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971)). Here, there is no evidence of the notice required by due process.*fn6
Additionally, because of the cursory and inaccurate nature of the questioning by the Appeals Examiner, the record fails to support any conclusion concerning whether or not claimant had good cause for her failure to comply with statutory appellate time limitations. As a consequence, we reverse the decision of the Board of Review and remand the matter for a further hearing, upon proper notice, with respect to the timeliness of claimant's appeal and the merits of her claim.
Reversed and remanded.