DIANE A. WAITES v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1903-10T4

DIANE A. WAITES,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and THE RESIDENCE

AT LAKERIDGE, LLC, and SUNRISE

SENIOR LIVING,

Respondents.

_______________________________________

November 18, 2011

Submitted October 25, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Board of Review, Department of Labor, Docket No. 288,341.

Diane A. Waites, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Deputy Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).

Respondents, Residence at Lakeridge, LLC and Sunrise Senior Living, have not filed a brief.

PER CURIAM

Diane A. Waites (Waites) appeals from a final determination of the Board of Review (Board), which was mailed on October 29, 2010, dismissing her appeal as untimely. We affirm.

This appeal arises from the following facts. Waites was employed by Lakeridge, as a certified home health aide, beginning in July 2008. Waites was also employed by Sunrise Assisted Living Management, Inc. (Sunrise), as a certified home health and nursing aide, beginning in February 2008. For personal reasons, Waites left both positions on October 3, 2009, to move to Florida.

Waites asserted that she worked for three different entities in Florida between February 2010 and April 2010. She did not, however, present proof of such employment. These positions were temporary and Waites became unemployed. At some point, Waites eventually relocated to Georgia.

On May 23, 2010, Waites filed a claim for unemployment compensation benefits with the New Jersey Department of Labor. A deputy claims examiner determined that Waites was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) because she left her employment with Lakeridge and Sunrise voluntarily without good cause attributable to the work.

Waites appealed the deputy's determination to the Appeal Tribunal, which conducted a telephonic hearing in the matter on July 21, 2010. Thereafter, the Appeal Tribunal issued a written decision upholding the deputy's determination. The Appeal Tribunal found that Waites was disqualified for benefits as of September 27, 2009.

The Appeal Tribunal's decision was mailed on July 22, 2010. It stated in part that, "This decision will become final, unless, within ten (10) days of the date of mailing or notification, a written appeal is filed with the Board of Review[.]" Waites filed an appeal to the Board on August 10, 2010.

The Board thereupon issued an order dismissing the appeal. The Board found that Waites filed the appeal beyond the time prescribed by N.J.S.A. 43:21-6(c). The Board noted that Waites had not shown good cause to extend the time for appeal. The Board's decision was mailed on October 29, 2010. This appeal followed.

Waites argues that the Board's decision should be reversed because she was qualified for unemployment compensation benefits. However, as we have explained, the Board did not address the merits of Waites' appeal because it was not timely filed.

The time for filing an appeal to the Board from a decision by the Appeal Tribunal is prescribed by N.J.S.A. 43:21-6(c), which states in pertinent part that unless an appeal from a determination of a deputy claims examiner

is withdrawn, an appeal tribunal . . . shall affirm or modify the findings of fact and the determination. The parties shall be duly notified of such tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the board of review, unless further appeal is initiated pursuant to [N.J.S.A. 43:21-(6)(e)] within [ten] days after the date of notification or mailing of the decision.

In Lowden v. Bd. of Review, 78 N.J. Super. 467 (App. Div. 1963), we held that the right to obtain unemployment compensation benefits is "purely statutory" and the "procedural aspects of the enforcement of such right are governed entirely and exclusively by the statute." Id. at 469. We will not review the merits of a decision of the Appeal Tribunal unless the claimant files a timely appeal to the Board. Id. at 468-69.

Furthermore, in Rivera v. Bd. of Review, 127 N.J. 578 (1992), the Court held that claimants in unemployment compensation matters have a due process right to notice, which must be considered when applying the statutory appeal requirements. Id. at 586. The Court held that, in certain circumstances, a claimant's failure to file a timely appeal may be excused for good cause. Id. at 590.

Following the Rivera decision, the Board adopted a regulation, which established the factors that constitute good cause for failing to file an appeal within the statutorily-prescribed time. N.J.A.C. 12:20-4.1(h) states that:

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 appellant; or

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

Here, the record shows that the Appeal Tribunal mailed its decision to Waites on July 22, 2010. Under N.J.S.A. 43:21-6(c), Waites had until August 1, 2010 to file her appeal. N.J.A.C. 12:20-4.1(c) provides that when an appeal to the Board is filed by mail, the date of the appeal will be the date the letter of appeal was postmarked.

Waites' appeal was postmarked August 10, 2010. However, in her letter of appeal, Waites did not provide good cause for the late filing.

We are therefore satisfied that the record supports the Board's finding that Waites' appeal was not filed within the time prescribed by N.J.S.A. 43:21-6(c), and Waites failed to establish good cause for her failure to file a timely appeal.

Affirmed.