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Larisa Slutskaya v. Board of Review

September 19, 2011

LARISA SLUTSKAYA, APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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