Opinion
DOCKET NO. A-6083-12T4
04-22-2015
STEPHEN D. DETAR, Appellant, v. BOARD OF REVIEW, and GREAT LAKES DREDGE & DOCK CORP., Respondents.
Stephen D. Detar, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Great Lakes Dredge & Dock Corp. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from the Board of Review, Department of Labor, Docket No. 418,746. Stephen D. Detar, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Great Lakes Dredge & Dock Corp. has not filed a brief. PER CURIAM
Stephen D. Detar appeals from a final determination of the Board of Review (Board) dismissing his administrative appeal as untimely, pursuant to N.J.S.A. 43:21-6(c). Our review of the record satisfies us that the Board's final decision was properly based on facts in the record and is consistent with the law. Accordingly, we affirm.
We discern the following facts from the record.
Detar worked for Great Lakes Dredge & Dock Co. as a deck hand. On October 31, 2012, he was terminated due to a failed random drug test. At the suggestion of his employer, he entered a substance abuse rehabilitation program. He also filed a claim for unemployment compensation benefits. The Director of the Division of Unemployment Insurance denied the claim in two separate Notices of Determination mailed on December 19, 2012. One stated that Detar was ineligible for benefits from November 25, 2012 because he was ineligible to work due to participation in a substance abuse rehabilitation program. The other stated he was ineligible for benefits from November 25, 2012 through January 19, 2013 because his positive drug test resulted in a discharge for misconduct.
On January 8, 2013, Detar appealed to the Appeal Tribunal. On February 1, 2013, the Appeal Tribunal determined that although Detar's appeal was timely because he did not receive the Deputy's determination until January 2013, the appeal was denied on the basis that Detar was "disqualified for benefits under N.J.S.A. 43:21-5(b), from [October 28, 2012], as the discharge [for cocaine use] was for severe misconduct connected with the work." In addition, the Appeal Tribunal found that the issue of whether Detar was ineligible for benefits due to his unavailability to work was "academic" because he was ineligible due to his termination for severe misconduct. Further, Detar's potential liability for refund of benefits was remanded to the Director for an initial determination.
On March 15, 2015, Detar appealed the Appeal Tribunal's determination that he was disqualified for benefits due to his termination based on severe misconduct. On May 17, 2013, the Board dismissed the appeal as untimely. The Board found no good cause was shown for filing the appeal more than twenty days after the Appeal Tribunal's mailing of its February 1, 2103 decision. See N.J.S.A. 43:21-6(c).
Meanwhile on remand, the Director determined on February 5, 2013, that Detar was obligated to refund $3666 received as benefits for weeks ending November 3, 2012 through February 2, 2013. Detar appealed the refund request to the Appeal Tribunal on March 11, 2013. Sometime in April, he asked to withdraw the request to appeal the refund request but wanted to continue his appeal of the denial of benefits.
On April 18, 2013, the Appeal Tribunal approved Detar's withdrawal of his appeal of the refund request. However, the Board remanded the matter to the Appeal Tribunal to conduct a hearing to decide all issues related to both appeals due to the employer's disagreement with Detar's withdrawal of the refund request.
On June 12, 2013, the Appeal Tribunal conducted a hearing and dismissed Detar's appeal of the Director's refund request determination, finding that his appeal was not timely filed and no good cause was shown for filing late. Detar received the Director's determination on February 15, 2013, but did not file his appeal until March 11, 2013. Pursuant to N.J.S.A. 43:21-6(b)(1), an appeal of the Director's decision must be filed ten days of the mailing of the determination, or within seven days of receipt of the determination. Detar testified that he filed the appeal late because he thought he was going to get his job back. He also contended that he was misled by his former employer into filing for unemployment benefits rather than for temporary disability benefits while he was in a drug rehabilitation program.
On July 11, 2013, the Board affirmed the Appeal Tribunal's decision and rejected Detar's appeal. This appeal followed.
We are guided by well-established principles in our review of the Board's decision. We exercise a limited role in reviewing agency decisions involving unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. We also afford some deference to, although we are not bound by, an agency's interpretation of its governing statute and its own regulations. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). We may intervene when the agency's action is arbitrary, capricious, or unreasonable, or "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
As previously stated, the time to appeal a Director's determination is seven calendar days after delivery or ten calendar days after mailing, which was set forth in the determination Detar received. N.J.S.A. 43:21-6(b)(1). The definition of a good cause exception to those time requirements is provided in N.J.A.C. 12:20.3-1(i):
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:The statute contains the time limit for action. Such limitations on actions are necessary to derive certainty of result and to prevent a party from sitting on his or her rights. The shortness of the limitations period does not make it unfair or otherwise excuse a party's noncompliance. See Lowden v. Bd. of Review, 78 N.J. Super. 467, 470 (App. Div. 1963) ("It has already been held by our Supreme Court that this time limitation, though short, may be said to be fair."). Significantly, courts are not free to extend the statutory limitations periods, which the Legislature intended to be an absolute deadline. Ibid.
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.
Applying these principles, we discern no basis to alter the Board's decision. We are satisfied that Detar received due process in that he was adequately apprised of the appeal deadline and requirements, yet failed to file a timely appeal and did not demonstrate good cause for his late appeal. Detar admitted that he did not file a timely appeal, and asserted that he waited to appeal because he thought he was getting his job back. We see no connection between getting his job back and waiting to file an appeal. Regardless of whether Detar received his job back, the Director's refund request determination could only be rescinded upon the filing of a timely appeal. See N.J.S.A. 43:21-6(b)(1) (stating unless a claimant files a timely appeal the Director's decision "shall become final and benefits shall be . . . denied in accordance therewith"). Thus, no good cause existed for Detar's late filing of his appeal.
Detar further argues that the Board should have addressed the merits of his argument that he sought unemployment benefits due to his employer's erroneous advice that he file for unemployment benefits while he was in drug rehabilitation, instead of temporary disability benefits. We disagree. In order to address the merits of this argument it still must be presented in a timely manner. As noted, the Board properly determined Detar did not show good cause for his late filing. Consequently, failure to file his appeal within the statutorily-imposed deadline warrants dismissal of his administrative appeal to the Board.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION