MARIA BAYON v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4938-05T54938-05T5

MARIA BAYON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and MORRISTOWN MEMORIAL

HOSPITAL,

Respondents.

_________________________________________

 

Submitted June 20, 2007 - Decided July 17, 2007

Before Judges Wefing and Weissbard.

On appeal from Department of Labor,

Division of Workers' Compensation, Claim

Docket No. 101,747.

Anthony Van Zwaren, attorney for appellant.

Stuart Rabner, Attorney General, attorney for Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

Carmagnola & Ritardi, attorneys for respondent Morristown Memorial Hospital (Steven F. Ritardi, on the letter relying on the brief filed on behalf of the Board of Review).

PER CURIAM

Maria Bayon appeals pro se from a final agency determination of the Board of Review (Board) affirming a decision of the Appeal Tribunal (the Tribunal) dismissing as untimely her appeal from a Deputy's decision denying her application for Additional Benefits During Training (ABT). We affirm.

Bayon filed a claim for unemployment compensation benefits on or about July 24, 2005. A determination of the Deputy Claims Examiner was mailed on August 22, 2005, holding Bayon eligible for benefits, without disqualification, from July 24, 2005. On September 1, 2005, Bayon's former employer, Morristown Memorial Hospital (the Hospital), filed an appeal of the determination of the Deputy, which was docketed as #86,408. A hearing in that matter was held before the Tribunal on September 28, 2005.

On September 29, 2005, a decision was mailed by the Tribunal holding that Bayon was disqualified for benefits as of July 17, 2005, pursuant to N.J.S.A. 43:21-5(a), finding that Bayon's voluntary leaving was without good cause attributable to the work. On October 7, 2005, Bayon filed an appeal of the decision of the Tribunal with the Board. On December 2, 2005, the Board affirmed the decision of the Tribunal in docket #86,408, finding that Bayon was given a full and impartial hearing and a complete opportunity to offer any and all evidence. Bayon never appealed the decision of the Board.

Meanwhile, Bayon filed an application for ABT. A determination of the Deputy was mailed on December 14, 2005, holding Bayon ineligible for ABT under the Workforce Development Partnership Program because she was not permanently separated from employment due to a substantial reduction in work opportunities in her job classification at her former worksite.

On February 1, 2006, Bayon filed an appeal of the Deputy's December 14, 2005 determination, which was docketed as #101,747. A hearing in that matter was held before the Tribunal on February 17, 2006, in which Bayon and a Spanish interpreter participated via telephone.

On February 17, 2006, a decision was mailed by the Tribunal dismissing Bayon's appeal as untimely under N.J.S.A. 43:21-6(b)(1), finding that the determination of the Deputy was mailed on December 14, 2005, Bayon received the determination of the Deputy by December 28, 2005, yet Bayon did not file her appeal until February 1, 2006, because she claimed to have been mourning her father's death on December 12, 2005.

On February 25, 2006, Bayon filed an appeal of the decision of the Tribunal with the Board. On April 6, 2006, the Board affirmed, finding that Bayon's appeal was properly dismissed in accordance with the provisions of N.J.S.A. 43:21-6(b)(1).

Bayon now appeals, contending that, (1) her dismissal was involuntary and, (2) that she established good cause for the late filing of her appeal to the Tribunal.

In its decision of September 29, 2005, on Bayon's initial claim for benefits, the Tribunal set forth the following findings of fact, which are well-supported by the record:

The claimant was employed as a dietetic assistant for the above-named employer from 11/12/01 through 7/7/05, when the claimant left the job because she could no longer do her regular job due to complaints by nurse manager and patients and she did not want to accept another job offered by her employer.

The employer had spoken a number of times with the claimant about her difficulty communicating verbally because of her accent. The employer paid for classes in English as a second language . . . and training to qualify her as a dietetic assistant. The employer had no other place for the claimant in her job category as both nurse managers refused to have the claimant work on their floors due to communication problems.

The employer offered the claimant her old job as a dietary worker at her new pay scale and the same hours. The claimant did not want to return to her old job which did not require her to communicate with the staff and patients. The claimant was given two weeks vacation and told to respond to the job offer by 7/22/05. The claimant did not contact her employer again.

With respect to Bayon's timeliness argument, N.J.S.A. 43:21-6(b)(1) provides:

Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final. . . .

Here, the Deputy's determination was delivered to Bayon on December 14, 2005, but she did not file her appeal until February 1, 2006, forty-seven days after receipt of the Deputy's action.

We had held in Lowden v. Bd. of Review, 78 N.J. Super. 467, 470 (App. Div. 1963), that the statutory time limit for administrative appeals of unemployment compensation decisions was an "absolute deadline" and could not be extended by the agency or by a court. However, in Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992), the Court held that due process required that in certain circumstances a "good cause" exception to the appeal deadline exists. In light of that ruling, the Board promulgated N.J.A.C. 12:20-4.1(h), which provides:

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.

At the hearing, Bayon testified that she did not file her appeal by December 21, 2005, because her father died on December 12, 2005, and she did not feel well emotionally.

Both the Tribunal and the Board found that Bayon had not established good cause for her late filing. That determination is supported by the record and is neither arbitrary, capricious, nor unreasonable. In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)). We note that, contrary to Bayon's contention, the notice of her ineligibility for ABT clearly set out the applicable seven-day time limit under a section prominently labeled "Right to Appeal."

Even if we were to disregard Bayon's failure to appeal in time, a consideration of her appeal on its merits likewise leads to a denial of her claim for ABT. In her earlier case, which was not appealed, it was determined that Bayon had left work voluntarily without good cause attributable to her work. That conclusion, which has preclusive effect in the matter under review, precludes receipt of ABT which requires that termination result from a substantial reduction in work opportunities at the worksite. N.J.S.A. 43:21-60a; N.J.A.C. 12:23-5.1(a)(2). We reject Bayon's attempt in this appeal to argue that the earlier case was wrongly decided. To accept that argument would permit an appeal manifestly out of time.

Affirmed.

 

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A-4938-05T5

July 17, 2007