Opinion
DOCKET NO. A-0587-13T4
04-27-2015
MICHELLE GUZMAN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ATTERRO, INC., t/a PROSTAFF PERSONAL SERVICE Respondent.
Reddin Masri, LLC, attorneys for appellant (Raymond B. Reddin, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from the Board of Review, Department of Labor, Docket No. 428,955. Reddin Masri, LLC, attorneys for appellant (Raymond B. Reddin, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). PER CURIAM
Appellant Michelle Guzman appeals from the Board of Review's final decision, which affirmed the Appeal Tribunal's determination that her unemployment appeal was untimely. We affirm.
On December 10, 2012, Guzman was terminated from her position just one day after she started the job. She promptly filed a claim for unemployment benefits. On February 26, 2013, the Deputy Director (Deputy) of the Division of Unemployment and Disability Insurance determined she was not qualified for benefits because she had been discharged for misconduct connected with the work. See N.J.S.A. 43:21-5(b). A notification of the Deputy's determination was mailed to Guzman on February 26, 2013. It is not disputed that, pursuant to N.J.S.A. 43:21-6(b)(1), the notification stated Guzman could appeal within seven days of delivery of the notification or within ten days after such notification was mailed to her.
If an appeal is not timely filed, a decision becomes final. Ibid. Guzman admitted she received the notification during the last week of February 2013 but did not file an appeal until June 11, 2013.
The Appeal Tribunal conducted a hearing on Guzman's appeal on July 9, 2013. Guzman admitted she failed to read that part of the notification advising of the deadlines within which to appeal. She also assumed the notification was for a claim for unemployment benefits she filed in August 2012 in connection with another position from which she had been terminated.
The Appeal Tribunal found Guzman's appeal untimely and that good cause did not exist to excuse the untimely filing of the appeal. See N.J.A.C. 12:20-3.1(i). This regulation provides that "good cause" may be found where the claimant shows that "[t]he delay in filing the appeal was due to circumstances beyond the control of the [claimant,]" or which "could not have been reasonably foreseen or prevented." Ibid.
Guzman appealed to the Board of Review, and contended for the first time that she had been prevented from filing a timely appeal because she had surgery on her foot on February 16, 2013. She claimed she was unable to drive a vehicle and required therapy for three months. The Board of Review affirmed the Appeal Tribunal. We note that in the record there is a letter from Guzman's physician stating surgery was on November 26, 2012. Despite having the surgery she was able enough to go to work in December 2012.
The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Furthermore, "'[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).
Here, it is undisputed Guzman received the notification of the Deputy's decision during the last week in February 2013, and that the notification stated that she had only ten days to file an appeal. She did not file her appeal until June 11, 2013. That she confused the notification with another matter does not constitute good cause under N.J.A.C. 12:20-3.1(i).
Second, we do not address her argument, raised for the first time before the Board of Review, that she was too impaired physically to have timely filed an appeal from the initial determination. This contention is outside of the record before us. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). It was incumbent upon the claimant to present testimony on this issue at the initial hearing, where the examiner could have given it full and fair consideration.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION