Santistevan v. DWS

----ooOoo----

Bernice L. Santistevan,
Petitioner,

v.

Department of Workforce Services,
Workforce Appeals Board,
and Utah Theatrical Payroll Services,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991073-CA

F I L E D
April 27, 2000
  2000 UT App 113 -----

Original Proceeding in this Court

Attorneys:
Bernice L. Santistevan, Salt Lake City, Petitioner Pro Se
Suzan Pixton, Salt Lake City, for Respondent

-----

Before Judges Bench, Billings, and Davis

PER CURIAM:

Petitioner seeks review of a decision of the Workforce Appeals Board affirming the decision of the administrative law judge that denied her appeal from a decision of ineligibility for unemployment insurance benefits as untimely. We affirm.

Decisions of the Division of Workforce Information and Payment Services of the Department of Workforce Services may be appealed to the Division of Adjudication "within 10 days after the date of mailing the notice." Utah Code Ann. § 35A-4-406(3) (a) (1997). The petitioner failed to appeal the May 5, 1999 decision within 10 days after the date it was mailed. Thus, the notice of appeal filed August 8, 1999 was untimely. Petitioner asserts that the Workforce Appeals Board erred in ruling that she failed to show good cause for her untimely filing. An untimely appeal filed with an administrative law judge pursuant to section 35A-4-406(3) "may be considered on its merits if it is determined that the appeal was delayed for good cause." Utah Code Admin. P. R.994-406-308(1).

Good cause is limited to circumstances where it is shown that: (a) the appeal was filed within 10 days of actual receipt of the decision if such receipt was beyond the original appeal period and not the result of willful neglect; or

(b) the delay in filing the appeal was due to circumstances beyond the control of the appellant; or

(c) the appellant delayed filing the appeal for circumstances which were compelling and reasonable. Id.

Petitioner contends that the delay in her filing was due to circumstances beyond her control because she was given the wrong fax number by department personnel. However, petitioner fails to explain how the department's alleged error caused the delay, where the evidence clearly demonstrates that she failed to call back and get the proper fax number after the first fax attempt failed, and that she actually had the proper fax number on her copy of the original decision. Moreover, petitioner completely abandoned her attempt to file an appeal for nearly three months after her original attempt failed. Regardless whether the department's alleged error might excuse a slightly tardy appeal, it most certainly cannot be reasonably relied upon to excuse such a late filing. Petitioner did not act reasonably under the circumstances and the Board did not abuse its discretion in ruling that she failed to show good cause for her untimely filing.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge