Willardson v. DWS

----ooOoo----

Eric Willardson,
Petitioner,

v.

Department of Workforce Services,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020513-CA

F I L E D
September 19, 2002 2002 UT App 298 -----

Original Proceeding in this Court

Attorneys:
Jay L. Kessler, Salt Lake City, for Petitioner
Lorin R. Blauer, Salt Lake City, for Respondent -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

This case is before the court on Respondent's motion for summary disposition, pursuant to rule 10 of the Utah Rules of Appellate Procedure, on the grounds that the issue for review is so insubstantial as to not merit further consideration by the court. Petitioner appeals Workforce Services Appeals Board's decision that he was not entitled to back-dated unemployment benefits.

Petitioner sought back-dated benefits, claiming good cause existed for his failure to timely apply, pursuant to Utah Administrative Code R994-403-107a (2001). He claimed that his employer's failure to adequately post notice, pursuant to Utah Code Ann. § 35A-4-406 (2001), of unemployment benefits amounted to good cause. At the hearing before the Administrative Law Judge, the West Valley Administrative Services Director testified that notices were posted in the personnel office of City Hall and in all other buildings, including fire stations. However, he also testified that Petitioner would only have gone into the personnel office when he applied for the job and that there was no posting in the Public Works Department, where Petitioner worked.

Respondent argues that any deficiency in posting was incidental to Petitioner's failure to timely file. We agree. This court will review application of rules by Workforce Services with moderate deference. See Ekshteyn v. Department of Workforce Servs., 2002 UT App 74,¶5, 45 P.3d 173. The ultimate decision of whether good cause exists is a mixed question of law and fact and should be affirmed only if reasonable. See id.

This court has interpreted "good cause" for failure to timely file as those circumstances that are out of the control of the applicant, for example hospitalization. See id. at ¶12. Good cause does not include failing to file because of circumstances within the control of the applicant, for example lack of knowledge or procrastination. See id. Petitioner's failure to apply for benefits for at least seven weeks after he was notified of the existence of benefits was due to circumstances within his control. We further agree that Petitioner's misunderstanding of whether he would qualify for benefits is not good cause. Petitioner was not entitled to rely on information received from the school employment office in determining qualification for benefits. See Utah Admin. Code R44-403-107a(3)(k) (2001) (reliance on inaccurate advice from parties other than the Department is not good cause for late filing).

Accordingly, the Board's determination that Petitioner failed to demonstrate good cause for late filing of his claim was reasonable. Respondent's motion for summary affirmance is granted.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge