Striebeck v. Employment Sec. Agency

• Decision Date: 22 November 1961
• Docket Number: No. 9005,9005
• Citation: 366 P.2d 589,83 Idaho 531
• Parties: Stella M. STRIEBECK, Claimant-Appellant, v. EMPLOYMENT SECURITY AGENCY, Respondent.
• Court: Idaho Supreme Court

Page 589

366 P.2d 589

83 Idaho 531

Stella M. STRIEBECK, Claimant-Appellant, v. EMPLOYMENT SECURITY AGENCY, Respondent.

No. 9005.

Supreme Court of Idaho.

Nov. 22, 1961.

William A. Stellmon, Grangeville, for appellant.

John W. Gunn, Boise, for respondent.

KNUDSON, Justice.

On October 13, 1960, claimant, Stella M. Striebeck, filed a claim for benefits at the Employment Security Agency in which she stated, inter alia, that she was last employed by the United States Forestry Service at Riggins, Idaho, from October 2, 1960 through October 11, 1960, and was laid off because of lack of work. She further stated that her base period employer was Riggins Cafe and her reason for leaving said employment was 'quit--because of illness'. Under a section of said Claim for Benefits entitled Remarks, claimant stated as follows:

'Seven Devils Cafe, Riggins, Idaho 9-59 to 7-15-60 Took time off to build house--Employer put another person in my place--Have worked 4 1/2 days relief since.'

Under date of October 27, 1960, the Employment Security Agency, through its local office at Grangeville, Idaho, issued its determination regarding said claim and held in effect that since claimant had voluntarily and without good cause left her employment by the Riggins Cafe, she was not eligible for benefits.

On November 8, 1960, claimant filed a request for redetermination wherein she stated:

'The statement that I took my vacation in July to help my husband work on building our house, is not correct. I took my vacation at (that) time and helped him incidental to that. I was available for work during that time. My employer came to the house and suggested that since she had another girl working who needed the money, that I go ahead working on the house and that I could work relief for her and that she had another job lined up for me the 1st of hunting season. This job did not materialize due to poor business.

'I have read, or have had read to me, the above statement. I certify that the information given is true and correct.'

Under date of November 18, 1960, a copy of the Agency's 'Redetermination' decision affirming the determination of October 27, 1960, was mailed to claimant at the address stated in her 'Request for Redetermination'. At the bottom of the redetermination decision is printed in small type the following:

'Notice: The Employment Security Law provides that this redetermination shall become final unless, within fourteen days of the 'Date of Mailing' (as shown in the upper right hand corner of this form) an appeal is filed by a legally interested party with the Employment Security Agency.'

On December 6, 1960, claimant filed an appeal to the Employment Security Agency wherein claimant states as follows:

'I, Stella M. Striebeck, conceiving myself aggrieved by the redetermination of L. E. Coupe, Claims Examiner for the Employment Security Agency, dated the 18(th) day of November, 1960, and served on the appellant on the 18(th) day of November, 1960, hereby appeal to the Appeals Tribunal to hear and determine the within claim for benefits and your appellant prays:

'I did not understand that I was to report in to file a request for an appeal within 14 days of determination being mailed. I did not read the notice at the bottom of the determination. I request a hearing regarding my separation from my job with Seven Devils Cafe.'

Under date of December 28, 1960, a decision of the Appeals Examiner was mailed to claimant wherein it is ordered that the redetermination of November 18, 1960, be affirmed. Said decision contains the following quoted paragraph:

'The Redetermination in this case was properly served upon the claimant. There is no provision under the Employment Security Law for waiving the 14-day time limit for protesting the Redetermination of the Agency. Failure of the claimant to file her appeal within the statutory time limit leaves the Appeals Examiner without jurisdiction to rule upon the merits of the case.'

On January 3, 1961, claimant filed her 'Claim for Review' with the Industrial Accident Board and therein states that 'I did not understand that I was to report to request an appeal within 14 days'. On January 18, 1961, the Industrial Accident Board entered its order rejecting claimant's claim for review and remanding the record to the Employment Security Agency. Said order of the Industrial Accident Board contains the following:

'On the undisputed showing in the record, the appeals examiner's ruling was correct. Neither the Agency nor this Board has the authority to waive the statutory requirement that an appeal must be filed within 14 days.'

This appeal is taken from said order of the Industrial Accident Board.

Appellant contends that the Industrial Accident Board erred in its construction of I.C. § 72-1368, subsections (d) and (e). The pertinent portions of said subsections are as follows:

'(d) A request for redetermination may be filed by any interested party and shall be filed in accordance with such rules and regulations as may be prescribed by the director. A redetermination upon such requests shall be promptly made by a claims examiner and, on the basis of facts found by him shall include a statement as to whether or not the determination is affirmed, reversed or modified, and if modified, to what extent, as well as a statement showing the reasoning upon which the redetermination is based if adverse to the claimant requesting it; or, upon such request and before notices of redetermination have been served, the director may, on his own motion, transfer the request for redetermination directly to an appeals examiner in which event such request shall be deemed to constitute an appeal, as of the date of the request, from the determination. A redetermination shall become final unless, within fourteen days after notice, as provided in sub-section (e) following, an appeal is filed by an interested party with the employment security agency in accordance with such rules and regulations as may be prescribed by the director.

'(e) All interested parties as defined in section 72-1323, shall be entitled to prompt service of notice of determinations and redeterminations. The claimant shall be served with notice of all determinations and redeterminations, but in the event that a claimant files more than one claim arising out of the same unemployment, the last employer need not be served with notice of more than the initial determination and redetermination unless he specifically requests service of additional notices. For purposes of this section, a notice shall be deemed served if delivered to the person being served or if mailed to his last known address; service by mail shall be deemed complete on the date of mailing.'

It is appellant's contention that the legislature, by using the language contained in the last sentence of said subsection (e), gave the Board or Agency discretion in the matter, such discretion to be exercised according to the facts and circumstances shown to exist. Appellant contends that should the Board or Agency feel that the appeal time should run from the date of actual delivery of the decision to the claimant rather than the date of mailing, they have been given the discretion to so order; that such discretion is authorized under a proper construction of the word 'deemed' as used in said subsection (e). We do not agree that the wording of said statute is susceptible to such construction.

It is true that the Employment Security Law must be liberally construed to the end that its purpose be accomplished and that in construing a statute the primary function is to ascertain and give effect to the intention of the legislature as expressed in the statute. Hagadone v. Kirkpatrick, 66 Idaho 55, 154 P.2d 181; Northern Pac. R. R. Co. v. Shoshone Co., 63 Idaho 36, 116 P.2d 221. However, words and phrases of a statute must be given their usual, plain and ordinary meaning, according to approved usage and language. City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680. The word 'deem' is defined as:

'To have an opinion; to judge; believe;...