Timely and Valid Appeal - Sections 8-806, 8-508, 8-5A-10 - Maryland Unemployment Decisions Digest - Appeals

Introduction

The provisions dealing with a timely and valid appeal are located in Section 8-806, 8-508 and 8-5A-10 of the Labor and Employment Article of the Maryland Annotated Code.

The claimant and the employer are both entitled to receive notice of any benefit determination issued by a claims examiner. The benefit determination notice shall be mailed to the parties' last known address or otherwise delivered to the parties. It is presumed in law that a letter properly posted will be delivered to the address in due course. This presumption is rebuttable. Border v. Grooms, 267 Md. 100, 297 A.2d 81, 83 (1972).

Pursuant to Section 8-806(g)(1), the claimant or the employer may appeal an initial benefit determination within 15 days after the date of mailing of the benefit determination notice or the date of delivery. This appeal will be heard by a hearing examiner unless the Board removes the case to itself. The period for filing an appeal from the claims examiner's determination may be extended by the hearing examiner for good cause shown. COMAR 09.32.11.01B(3).

Under COMAR 09.32.11.01B(2), an appeal is considered filed on the earlier of the following dates: (a) The date the appeal is delivered in person to any office of the Department of Labor, Licensing and Regulation; or (b) The U.S. Postal Service postmarked date on which a letter of appeal, properly addressed and stamped, is mailed to any office of the Department of Labor, Licensing and Regulation.

Proper notice under the unemployment insurance law requires that the parties be given actual notice of the ramifications of the penalty imposed. The notice form must be presented in such a manner so as to "enable a person of ordinary perception to understand the nature and purpose of the notice." Ottenheimer Publishers, Inc. v. Employment Security Administration, 275 Md. 514, 340 A.2d 701, 704 (1975).

If a party files a late appeal because he or she did not receive proper notice of the benefit determination, the Board will likely hold that the party had good cause for filing late. If an appeal is filed late due to a party's illness or some other emergency, the Board will likely find good cause for the late appeal. The same result will occur if the late appeal was caused by agency error or confusion caused by the agency. A party's failure to act upon actual notice is generally not good cause for a late appeal. Likewise, the failure of a party's authorized representative to file a timely appeal is not good cause for a late appeal.

The Board of Appeals does not have jurisdiction to consider an untimely appeal from a decision of a hearing examiner. COMAR 09.32.06.02(B)(2)

If a claimant is initially determined eligible for benefits, that claimant will be and must be paid benefits while any appeal by the employer is pending. California Department of Human Resources v. Java, 402 U.S. 121, 91 S.Ct. 1347 (1971). The Maryland legislature enacted Section 8-809 in order to preserve the right of the agency to recoup benefits paid to a claimant pending appeal, if the employer eventually prevails in the appeals process set up in Section 8-806 of the law. By doing so, the legislature intended to preserve the integrity and meaning of the appeals process.

Timely and Valid Appeal - Sections 8-806, 8-508, 8-5A-10

I. In General

A. Actual Notice of Determination
Proper notice under the unemployment insurance law requires that an employer be given actual notice of the ramifications of the penalty imposed. The notice form must be presented in such a manner so as to "enable a person of ordinary perception to understand the nature and purpose of the notice." Ottenheimer Publishers, Inc. v. Employment Security Administration, 275 Md. 514, 340 A.2d 701, 704 (1975). The same also applies to claimants. Waters v. State Farm Insurance Company, 1108-BR-82.

The claims examiner's determination was mailed to the claimant at the wrong house number, in an envelope that did not give the city, state or zip code of the destination; therefore, the determination was never mailed to the claimant's last known address within the meaning of Section 8-806. The time limit within which the determination could be appealed did not begin to run until the claimant was given actual notice of the determination nearly five years later. The claimant exercised his appeal rights under Section 8-806 in a proper and timely manner. Harris v. Concord Fibers, 577-BR-82.

B. Mailing of Appeal
The last day to appeal the benefit determination was May 25, 1987, however, this was a federal holiday, Memorial Day. The employer's appeal letter was postmarked May 26, 1987. The Board held that the employer filed a timely appeal. Since the last day to file a timely appeal was a legal holiday, the last day to appeal was automatically extended by operation of law until the following day, May 26, 1987. See, Article 94, Section 2 of the Annotated Code of Maryland. Since the appeal was timely filed within the meaning of Article 94, Section 2, there is no need to reach the issue of "good cause" for a late appeal under Section 8-806. Jackson v. Monumental Life Insurance Company, 904-BH-87.

The employer's appeal letter was dated April 11, 1989, the last date to appeal. The letter was stamped by the agency as received on April 13, 1989. The effective date of an appeal is the postmarked date. In this case, however, the envelope in which the appeal was received was not preserved. Under these circumstances, the Board accepted the date on the letter as the date of the appeal and held that the employer filed a timely appeal under Section 8-806. Means v. Embassy Suites, Inc., 693-BR-89.

On a benefit determination with an appeal deadline of January 5, 1999, an employer appeal was received at the Hagerstown local office on January 8, 1999. The letter of appeal, prepared by an employer representative, was undated. There was no post marked envelope nor was an explanation provided by the employer representative. The Board affirmed a finding of late appeal for reasons which do not constitute good cause. Bonnie S. Williams, 952-BR-99.

C. Burden of Proof
In the case of Mohr v. Universal C.I.T., 216 Md. 197, 140 A.2d 49 (1958), the Maryland Court of Appeals ruled that proof of mailing is accomplished by testimony proving the mere existence of an invariable office custom or system of addressing and mailing. Beverly, et al. v. Housing Authority of Baltimore, 1030-BR-83.

The appellant has the burden of proving when the appeal letter was mailed. The appellant has not met that burden when the only evidence provided on the issue is an affidavit from the appellant's representative. This person was not present to be cross-examined. The affidavit was vague concerning the mailing procedures used by the appellant, and it was insufficient to establish definitely that the envelope was deposited in the mail in the regular course of business on a specific day. The mailing procedure was not set out in any detail, nor was it proven that the procedure was a fixed routine. Taylor v. AT and T Company, 1019-BH-92.

II. Good Cause

A. Good Cause Determination by Hearing Examiner
The language of the statute provides that the 15-day appeal period may be extended by the Board for good cause. Sections 8-509(b) and 8-806(g)(2) confer upon the Board the authority and jurisdiction to authorize hearing examiners to make findings and conclusions on any issues arising in a hearing, including good cause under Section 8-806. Under these sections, the hearing examiners have the authority to determine the issue of good cause for a late appeal under Section 8-806. Premick v. Roper Eastern, 141-BR-83.

Once an appeal has been filed late, the burden is on the appealing party to show by credible evidence that good cause exists. Cooper v. Holy Cross Hospital, 328-BR-86.

B. Late Receipt of Determination or Decision
Where the monetary determination was not mailed to the employer, the employer had good cause for the late appeal which it filed as soon as it became aware of the determination. Chambers v. Baltimore City Department of Housing, 543-BH-85.

The claimant did not receive notice of his disqualification or his right to appeal until after the appeal deadline had passed. The claimant had good cause for filing a late appeal under Section 8-806. Young v. Carl Julio, et al., 561-BH-90.

C. Improper Address
Good cause exists where the claimant notified the agency of his change of address prior to his receipt of his nonmonetary determination, which was sent to an incorrect address. Twyman v. Howard W. Clark, Inc., 436-BH-82.

Where a claimant had stopped filing claims and had no reason to keep the agency informed of his change of address, he had good cause to file a late appeal of a second determination that was issued unbeknownst to him after he had moved. McClewee v. National Center on Institutions and Alternatives, Inc., 1840-BR-94.

D. Presumption of Delivery
The claimant successfully rebutted the presumption that the determination, if properly mailed, was received soon thereafter. The claimant provided sworn testimony that he did not receive the determination (postmarked July 6) until July 21, which was the last date to file an appeal. In addition, the claimant produced two sworn statements of witnesses to the arrival of the notice as well as the envelope itself which had irregular markings on it. Therefore, the claimant had good cause for filing a late appeal on July 28. Gamber v. Windsor Service, Inc., 1175-BH-81.

The record contained no copies of the benefit determination allegedly mailed to the employer, who denied ever receiving it. The Board found no evidence that the determination existed; therefore, the Board gave the employer the benefit of the doubt and found that the employer filed a timely appeal within the meaning of Section 8-806. Miller v. Sparrows Point Country Club, 501-BR-89.

E. Inability to Comprehend Determination
A learning disabled claimant who could not read and understand the determination had good cause for filing a late appeal when he waited one week to come in and inquire about the appeal so that he could complete a training program. The claimant would have been expelled from the program for missing time to inquire about the appeal. George, 833-BH-83.

The confusing wording of one of the benefit determinations received by the claimant (he received more than one), that he was disqualified until he supplied a physician's statement, coupled with the claimant's limited educational background and communication skills, resulted in tremendous confusion for the claimant who believed that he could not file an appeal until he obtained a note from his doctor. Since that was the reason why he filed a late appeal, the Board concluded that this constituted good cause for his late appeal. Clark v. WC and AN Miller Development Company, 170-BR-87.

F. Improper Notice
The claimants, who had been given notice of a weekly penalty, but who had not been given notice of the ramifications of that penalty with regard to extended benefits, were not given proper notice of the decision. Therefore, the claimants should have another opportunity to litigate the issue which brought about the weekly penalty in the first place. The claimants had good cause to file late appeals. Waters v. State Farm Insurance Company, 1108-BR-82.

The benefit determination that the claimant received incorrectly summarized Section 8-1008, thereby effectively denying the claimant adequate notice of his rights under the unemployment insurance law. Based on the incorrect notice, the claimant did not immediately appeal the determination. Shortly thereafter, the claimant learned that he should be eligible for full benefits and then appealed the determination. Since the determination was misleading and did not fairly inform the claimant of the issue, it was not sufficient notice within the meaning of Section 8-806. The claimant filed a late appeal, but for good cause. Kress, 104-BH-88.

G. Illness or Other Emergency
The claimant was out of town during the hearing and appeal period attending to her seriously ill father, and filed a late appeal upon her return. Good cause exists due to the serious nature of the domestic matter which had detained the claimant. Sortino v. Western Auto Supply Company, 896-BH-83.

Where the claimant's appeal was one day late because of his hospitalization, good cause is supported. Hamm v. Abacus Corporation, 619-BH-84.

H. Appeal Not Taken or Lost
Where a claimant's initial appeal is either not taken or lost by the agency, good cause exists for filing a late appeal. Ridgeley v. Glenelg Country School, 352-BR-83.

The claimant received three benefit determinations simultaneously, denying her benefits. The last day to appeal for all three was July 7, 1989. She took all of these determinations to the local office prior to the appeal deadline with the intention of having them take care of these matters. She was under the impression that all of these matters had been dealt with and that she had an appeal meeting the following week. However, the meeting the following week had to do with only one of the determinations. Later, upon realizing that she had not filed an appeal, she did so. The claimant made a good faith effort to appeal her case prior to the appeal deadline. Her failure to perfect an appeal at that time was due to miscommunication. The claimant had good cause for filing a late appeal. DiBartolomeo v. Yaffe and Company of Baltimore, Inc., 1089-BH-89.

I. Incorrect or Misleading Information from Agency
The claimant, upon receiving her adverse determination, contacted the local office and was incorrectly informed that she need not do anything until after she was again physically able to work. Therefore, the claimant had good cause for filing a late appeal under Section 8-806. Redden v. General Electric Company, 577-BR-88.

The wording of the benefit determination was vague and confusing. This led the claimant to believe that he had already met all the conditions to have the penalty lifted. The claimant's misinterpretation was reasonable in light of all the circumstances. The claimant had good cause for filing his appeal late. Danish v. S.J.T. Service Corporation, 203-BR-90.

The last date for the claimant to file an appeal was August 30, 1991. The claimant filed her appeal in person on the next working day, September 3, 1991. The claimant had visited the local office on August 30, 1991 with the intention of filing an appeal, but was deterred by a sign which stated that no claims would be taken after 3:00 p.m. Since the claimant attempted to file her appeal in person during normal business hours on the last date to file the appeal, but was deterred by a sign which to her meant that she was not allowed to come in and file the appeal, the claimant had good cause for filing her appeal one working day late. Beasley v. Genesis Health Ventures, 1477-BR-91.

Due to misinformation given to the appellant-employer by the Agency with regard to procedure and the effect of benefit charges against its tax account and the rights to appeal, the Board found good cause for the employer filing a late appeal. Omwattie Deodat v. Just a Buck, Inc., 2315-BH-98.

III. Circumstances in Which Good Cause Is Not Supported

A. Confusion or Misunderstanding
Where the claimant had the ability to read the determination but simply neglected to read the portion of it clearly captioned "Appeal Rights" and filed his appeal months later, good cause was not found. Faust v. Glynn Emrich Company, 298-BH-85.

The last day to file a timely appeal was April 27, 1988, but the appeal was not filed until April 28, 1988. The claimant received this determination and understood it. The claimant offered that he misplaced his papers, found them "the day after," mixed up the date in his head and then contacted the local office. The claimant failed, without good cause, to file a timely appeal under Section 8-806. Simon v. Ronald F. Varelli, 920-BH-88.

B. Relocation Without Notice
Where the claimant moved repeatedly and failed to notify the agency of her new address, and in addition failed to make efforts to have her mail forwarded, the claimant does not have good cause for filing a late appeal on the grounds that she did not receive the determination on time. Grimes v. DHEW, 393-BH-84.

C. Inaction by Authorized Representative
The claimant's excuse for filing her appeal eight days late is that she was waiting for her attorney to file it. The failure of an authorized representative to file a timely appeal does not give a party good cause for a late appeal under Section 8-806. Noel v. Government Employees Insurance Company, 1042-BR-89.

D. Failure to Act Upon Actual Notice
Where the determination was misaddressed and the claimant received it possibly after the last date to appeal (February 19), but before the end of February, and where the claimant did not file her appeal until March 21 and stated that the reason for her further delay was "nothing in particular," good cause was not found. Oguledo v. Bradlee's, 36-BR-86.

The claimant understood the benefit determination but did not file a timely appeal because he obtained a new job 13 days after the claims examiner's determination was mailed to him. Later, upon being separated from the second job, the claimant filed his appeal. The fact that the claimant thought he had a new job and would not need benefits is not good cause, where the claimant understood the determination and had ample opportunity to appeal it. Garlitz v. Gateway Motors, Inc., 573-BR-87.

The claimant was mailed a benefit determination notice which stated that the last day to file a timely appeal was April 22, 1988. The claimant did not file an appeal until August 24, 1988. His reason for filing an appeal was that a friend told him in August that he might be eligible for benefits under a new law. He had not filed an appeal earlier because he had assumed that his determination was correct. The claimant failed, without good cause, to file a timely appeal under Section 8-806. Dahlheimer v. Tracor Hydronautics, Inc., 39-BR-89.

The last day to file a timely appeal was January 24, 1989. The employer's appeal was postmarked January 25, 1989. The employer's reason for the late appeal was that he was awaiting proof of the claimant's guilt concerning an alleged theft. However, the employer had received the notice from the agency that plainly stated the last date to appeal, but disregarded it. Therefore, the employer filed a late appeal without good cause under Section 8-806. Brown v. Winchester and Woods, Inc., 643-BR-89.

IV. Appeals to the Board of Appeals

A. Good Cause Not Recognized
The last day to file an appeal to the Board was February 4, 1987. The employer's appeal was hand-delivered to the Board on February 5, 1987. Under COMAR 09.32.06.01B, an appeal is considered filed on the earlier of the following dates: (a) The date the appeal is delivered in person to any office of the Department of Labor, Licensing and Regulation (formerly DEED); (b) The U.S. Postal Service postmarked date on which a letter of appeal, properly addressed and stamped, is mailed to any office of the Department of Labor, Licensing and Regulation. The Board has jurisdiction to consider appeals only if the appeal is filed within the proper time limit. The Board therefore has no authority to hear an appeal in this case. James v. University of Maryland, 380-BH-87.

The claimant was aware of the appeal deadline and the need to have any mailed appeal postmarked by April 19, 1991. The appeal letter to the Board was not postmarked until April 20, 1991; therefore it was a late appeal. Section 8-508(a) does not provide for an exception for good cause for filing a late appeal but, even if it did, the Board would not have found any good cause for a late appeal in this case. The claimant had sufficient time to file her appeal in a timely manner, but failed to do so. Rupert v. Advance Business Systems and Supply Company, 893-BH-91.

The claimant filed a petition to reopen a dismissed case over seven days past the date of the dismissal decision. The claimant has not established by a preponderance of the evidence that she is entitled to reopening the dismissed case under the reasons enumerated in COMAR 09.32.11.02 (O) now (P). There is insufficient evidence that the reason for the dismissal is attributable to Agency error, an error by the United States Postal Service, an unforeseen and unavoidable emergency, or for reasons relating to an improperly denied postponement request. A failure to request a reopening within the specified time provision of seven days of the date of the dismissal notice may lead to a denial of the petition to reopen. The law does not provide for consideration of good cause for filing a late petition to reopen a dismissed case. The Board held that the claimant failed to file a timely petition to reopen the dismissed case. Therefore, the claimant failed to meet her burden of demonstrating that she had good cause to reopen the dismissed appeal. Gross v. University of Baltimore, 2009-BR-12.The claimant filed a petition to reopen a dismissed case over seven days past the date of the dismissal decision. The claimant has not established by a preponderance of the evidence that she is entitled to reopening the dismissed case under the reasons enumerated in COMAR 09.32.11.02 (O) now (P). There is insufficient evidence that the reason for the dismissal is attributable to Agency error, an error by the United States Postal Service, an unforeseen and unavoidable emergency, or for reasons relating to an improperly denied postponement request. A failure to request a reopening within the specified time provision of seven days of the date of the dismissal notice may lead to a denial of the petition to reopen. The law does not provide for consideration of good cause for filing a late petition to reopen a dismissed case. The Board held that the claimant failed to file a timely petition to reopen the dismissed case. Therefore, the claimant failed to meet her burden of demonstrating that she had good cause to reopen the dismissed appeal. Gross v. University of Baltimore, 2009-BR-12.

B. Improper Notice
The claimant advised the agency of her change of address in October, 1988, but the agency never notified the Appeals Division. As a result, the hearing examiner's decision in February, 1989, was mailed to the wrong address. Because of this, the claimant did not file her appeal to the Board until March 22, 1989. Since the decision letter of February 22, 1989 was mailed to the wrong address, the 15-day appeal period did not begin to run, and the claimant's appeal to the Board was timely. McMackin v. Rebal Management, 364-BR-89.