Timely and Valid Appeal - Sections 8-806,
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.,
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
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.
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.