Magnuson v. DWS

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Paula A. Magnuson,
Petitioner,

v.

Department of Workforce Services,
Workforce Appeals Board,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000506-CA

F I L E D
September 28, 2000 2000 UT App 269 -----

Original Proceeding in this Court

Attorneys:
Paula A. Magnuson, West Valley City, Petitioner Pro Se
Suzan Pixton, Salt Lake City, for Respondent

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Before Judges Jackson, Billings, and Orme.

PER CURIAM:

Petitioner Paula Magnuson seeks review of the Workforce Appeals Board's decision that she failed to demonstrate good cause for late filing of an appeal from a decision determining an overpayment of benefits and assessing a penalty. This case is before the court on its own motion for summary disposition. The Board filed a response, while Magnuson responded that she did not want summary disposition and wished to file a brief.(1) We affirm.

A party who disputes the Department of Workforce Services' decision on benefits "may file an appeal from the determination with the Division of Adjudication within ten days after the date of mailing of the notice of determination." Utah Code Ann. § 35A-4-406(3)(a) (1997). A late appeal may be considered if a claimant can demonstrate "good cause." See Utah Code Admin. P. R994-406-308 (2000) (establishing circumstances constituting good cause). The decision whether good cause exists is a mixed question of law and fact that should be affirmed if it is "reasonable." Autoliv ASP v. Workforce Appeals Bd., 2000 UT App 223,¶11, 400 Utah Adv. Rep. 3.

The decision advised Magnuson that it would "become final unless appealed in writing within ten days," and provided further instructions. It is undisputed that Magnuson received the February 8, 1995 decision, but she did not file an appeal until June 21, 1999, over four years later. There was no evidence that she filed an appeal within ten days of "actual receipt" of the decision or that circumstances beyond her control prevented her from filing an appeal. See Utah Code Admin. P. R994-406-308 (a) & (b). The credibility of her testimony that a department employee told her the decision was a mistake and would be taken care of is for the Board, not this court, to evaluate. See Jim Whetton Buick v. Department of Employment Sec., 752 P.2d 358, 360 (Utah Ct. App. 1988) ("It is not this Court's role to decide which testimony is more credible."). We see no error in the Board's discounting her testimony in this regard. Magnuson presented no "compelling and reasonable" circumstances to justify her late filing. Utah Code Admin. P. R994-406-308(c). The Board's conclusion that Magnuson did not present good cause for the late filing of her appeal is reasonable, and the Board correctly determined that it lacked jurisdiction to consider the merits of the appeal.

Magnuson did not provide sufficient evidence to establish that a mistake as to fact had occurred, and the Board correctly concluded that there was no basis to exercise its continuing jurisdiction under Utah Code Ann. § 35A-4-406(2) (1997).

The decision of the Board is affirmed.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. The sua sponte motion directed the parties to file memoranda in lieu of a brief, and advised that failure to file a memorandum may result in the court's granting of the motion.