NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2013
On appeal from the Board of Review, Department of Labor, Docket No. 364, 852.
Elkind and DiMento, PA, attorneys for appellant (Steven S. Lubcher, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher J. Hamner, Deputy Attorney General, on the brief).
Before Judges Fuentes and Haas.
Jessica Wileman appeals from a final decision of the Board of Review dated August 7, 2012, dismissing her appeal as untimely. After reviewing the record before us and mindful of prevailing legal standards, we have opted to exercise the discretionary authority conferred to us by Rule 2:8-3(b) and, on our own motion, summarily affirm the Board's decision.
Appellant was employed as Assistant Vice President and Branch Manager by Citizens Bank from 2006 to November 30, 2008. Appellant claims she left her employment that day and subsequently sought a "medical leave" due to "personal health reasons, including work related stress, anxiety, panic attacks, inability to sleep, nausea and migraine headaches." The physician whom appellant consulted estimated appellant was capable of returning to work sometime in February 2009.
According to appellant, she was ready and willing to return to work on February 2, 2009. Before she could return to work, however, she received a letter from her employer dated January 29, 2009, terminating her from her position due to unexcused medical absences. Although appellant contests the merits of this determination by her employer, our decision affirming the Board of Review's decision is based exclusively on the timeliness of appellant's appeal. As such, we need not, and specifically do not, express any opinion concerning the underlying basis of appellant's termination from her employment.
Appellant filed a claim for unemployment benefits on February 1, 2009, and received benefits totaling $28, 562. On October 24, 2011, the Director of the Division of Unemployment Insurance sent appellant a Notice of Determination informing her that she had been found ineligible to receive unemployment compensation benefits pursuant to N.J.S.A. 43:15-5(a) because she had voluntarily left employment on January 23, 2009, without good cause attributable to such work. The Director also noted that appellant was "not available for your fact finding interview on 07/13/10 . . . . Since you were not available for your fact finding interview, you have not demonstrated good cause attributable to work." Finally, the Notice of Determination clearly stated:
Any appeal from this determination must be submitted in writing within 7 days after delivery or within 10 days after the date of mailing. The tenth day after the date of mailing is: 11/03/11.
It is not disputed that appellant did not file an appeal of the Director's October 24, 2011 determination to the Appeal Tribunal until December 7, 2011. Despite the undisputed untimeliness of appellant's appeal, the Appeal Tribunal conducted a hearing on this matter on May 14, 2012, at which appellant participated telephonically.
At the May 14, 2012 hearing before the Appeal Tribunal, appellant explained as follows:
A. I know that I had it longer than I was supposed to have it. My problem was that I -- I'm sure you guys hear this all the time but I do have a very hectic schedule and I was a little confused about what I was supposed to do. I did try to call and it's impossible. I went to the unemployment office that's local to me and they told me to call in from one of their phones. I was disconnected several times.
A. No. I don't. I'm sure they received them on the dates ...