Armstrong v. Department of Employment Sec., 910403-CA

CourtCourt of Appeals of Utah
Citation834 P.2d 562
Docket NumberNo. 910403-CA,910403-CA
PartiesAngela ARMSTRONG, Petitioner, v. DEPARTMENT OF EMPLOYMENT SECURITY, Respondent.
Decision Date22 May 1992

Page 562

834 P.2d 562
Angela ARMSTRONG, Petitioner,
No. 910403-CA.
Court of Appeals of Utah.
May 22, 1992.

Page 563

Cheryl I. Jolly (argued), Salt Lake City, for petitioner.

K. Allan Zabel (argued), Dept. of Employment Sec., Salt Lake City, for respondent.



BILLINGS, Associate Presiding Judge:

The Department of Employment Security denied petitioner Angela Armstrong (Armstrong) unemployment benefits, and she appealed. An administrative law judge ruled her appeal was untimely, leaving the department's decision in effect. Armstrong then filed a timely appeal with the Board of Review of the Industrial Commission of Utah (Board) which affirmed the ruling of the administrative law judge. Armstrong now seeks review of the Board's final decision. We affirm.


Kinko's of Salt Lake, a copy and printing company, employed Armstrong for approximately two years. Kinko's terminated Armstrong for knowingly violating company policy concerning customer discounts. Armstrong applied for unemployment benefits.

The Department of Employment Security denied Armstrong unemployment benefits in a notice dated and mailed February 19, 1991. This notice, with our emphasis, informed

Page 564

Armstrong of her right to appeal "within 10 calendar days after this decision was mailed." However, regulations adopted by the Industrial Commission provide that if the department's decision is mailed, a claimant may have an additional three days to file an appeal. 1 Therefore, Armstrong had until March 4, 1991 2 to file a timely appeal. Armstrong appealed the department's denial of unemployment benefits in a letter dated March 5, 1991 and received March 6, 1991.

A hearing was held before an administrative law judge. At the hearing, the parties addressed both the timeliness and the merits of Armstrong's appeal. The administrative law judge indicated he would reserve ruling on the timeliness issue and proceed to the merits, as everyone was prepared to testify. The administrative law judge subsequently ruled her appeal was not timely and good cause did not exist for extending the appeal deadline. Armstrong then appealed to the Board which affirmed, adopting the findings of fact and conclusions of law of the administrative law judge.

On appeal, Armstrong claims the Board erred by not addressing the merits of her appeal because: (1) Good cause existed for filing a late appeal, (2) the time period for filing an appeal is ambiguous, and (3) the short appeals period violates constitutional guarantees of due process.


Armstrong first claims her untimely appeal should be considered on its merits because there was good cause for her delay in filing it. The Board responds that no good cause exists for excusing Armstrong's late appeal.

A. Standard of Review

Utah's Employment Security Act is to be "construed liberally in favor of affording benefits." Nielsen v. Department of Employment Sec., 692 P.2d 774, 776 (Utah 1984) (per curiam); accord DeLuca v. Department of Employment Sec., 746 P.2d 276, 278 (Utah App.1987).

A claimant has a statutory right to appeal a denial of unemployment benefits under Utah Code Ann. § 35-4-6(c) (Supp.1991) which provides: "The claimant or any other party entitled to notice of a determination ... may file an appeal from such determination with an administrative law judge within ten days after the date of mailing of the notice to his [or her] last known address...." 3 On its face, this statute appears to be jurisdictional. However, through regulations based on authority delegated in Utah Code Ann. § 35-4-6(b) (Supp.1991), the Industrial Commission has modified application of the statute by adopting a good cause exception to the time limitation for filing an appeal. Under section 35-4-6(b), the Industrial Commission's

[j]urisdiction over benefits shall be continuous. Upon its own initiative or upon application of any party affected, the commission or its authorized representatives may on the basis of change in conditions or because of a mistake as to facts, review a decision allowing or disallowing in whole or in part a claim for benefits. The review shall be conducted in accordance with such rules as the commission may prescribe and may result in a new decision which may award, terminate,

Page 565

continue, increase, or decrease benefits, or may result in a referral of the claim to an appeal tribunal.

Id. (emphasis added). Pursuant to the "continuous" jurisdiction afforded by this statute, the Industrial Commission has promulgated regulations allowing late appeals for good cause. See Utah Code Admin.P. RR475-6c-7 and -8 (1991). The Utah Supreme Court 4 and this court 5 have accepted and routinely applied this good cause exception, and neither party challenges it on appeal.

What constitutes good cause for filing an untimely appeal has been variously described as "a mixed question of law and fact," Pacheco v. Board of Review of the Indus. Comm'n, 717 P.2d 712, 714 (Utah 1986) (per curiam); Arevalo v. Department of Employment Sec., 745 P.2d 847, 848 (Utah App.1987), cert. denied, 765 P.2d 1278 (Utah 1988), and "basically a factual matter," Thiessens v. Department of Employment Sec., 663 P.2d 72, 73 (Utah 1983) (per curiam). More precisely, the factual findings underlying a determination of good cause "will be affirmed if they are 'supported by substantial evidence when viewed in light of the whole record before the court.' " Merriam v. Board of Review of the Indus. Comm'n, 812 P.2d 447, 450 (Utah App.1991) (quoting Nelson v. Department of Employment Sec., 801 P.2d 158, 161 (Utah App.1990)). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Grace Drilling Co. v. Board of Review of the Indus. Comm'n, 776 P.2d 63, 68 (Utah App.1989) (quoting Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 715 P.2d 927, 930 (1985)). The ultimate decision as to whether good cause exists is a mixed question of law and fact and should be affirmed only if it is reasonable. See Pro-Benefit Staffing v. Board of Review of the Indus. Comm'n, 775 P.2d 439, 442 (Utah App.1989). 6

B. "Good Cause"

The Industrial Commission has promulgated rules which allow an unemployment benefits claimant who shows good cause to file an untimely appeal. See Utah Administrative Rule 475-6c-7.

Page 566

Armstrong claims good cause existed because she was confused by the term "calendar days" in the notice of her appeal rights, somehow taking it to mean "working days," and she reasonably needed extra time to gather materials to support her appeal. Armstrong argues that because she is a layperson and in view of the remedial policy of the unemployment statutory scheme, the Board acted unreasonably in refusing to reach the merits of her appeal when it was filed only one day late.

Utah Administrative Rule 475-6c-8 defines what constitutes "good cause" for failing to file on time.

A late appeal may be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause is limited to circumstances where it is shown that:

1. The appeal was filed within 10 days of actual receipt of the decision if such receipt was beyond the original appeal period and not the result of willful neglect; or

2. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or

3. The appellant delayed filing the appeal for circumstances which were compelling and reasonable.


Of the three possible grounds for establishing good cause, only the third could possibly apply to Armstrong's claims....

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