S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: 93-553-60

Board Case No.: 71-BR-08

Referee Case No.: 618-AA-03

Date mailed to interested

parties: February 20, 2008

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

The administrator ruled the claimant eligible for unemployment benefits effective January 5, 2003, and notified the employer of its chargeability on January 28, 2003. On February 18, 2003, the employer appealed the administrator's decision to the Hartford office of the appeals division. The appeals division scheduled a hearing of the appeal for February 10, 2006, which the claimant and the employer attended. By a decision issued on August 29, 2006, Associate Appeals Referee Sherwin M. Nelson reversed the administrator's ruling.

On September 20, 2006, the claimant filed a late motion to reopen the referee's decision. Referee Nelson issued a decision denying the motion to reopen on May 14, 2007.

The claimant filed a timely appeal to the board of review on June 4, 2007. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the tape recording of the referee's hearing.

II. ISSUE

The referee dismissed the claimant's motion to reopen for lack of jurisdiction because it was filed beyond the twenty-day days allowed by law. In support of this appeal from the referee's decision denying the motion to reopen, the claimant contends that it had good cause for filing the motion late. Specifically, the claimant's counsel contends that he filed the appeal one day late because he was without secretarial help during the last two weeks of the appeal period; the appeal deadline was not properly calendared; he was out of state visiting his sick grandfather during the weekend prior to the appeal deadline; and he did not receive the hearing tapes he requested 18 days prior to the appeal period deadline.

The issue before the board is whether the claimant has demonstrated good cause for filing an untimely motion.

III. PROVISIONS OF LAW

Section 31-248 of the General Statutes provides that to be timely a motion to reopen a referee's decision must be postmarked or filed with the appeals referee within twenty-one calendar days after the referee's original decision was mailed to the appealing party. Unless the appealing party, pursuant to Section 31-237g-34(c) of the Regulations of Connecticut State Agencies, shows good cause for filing the motion after the twenty-first day, the referee's decision becomes final and the referee may not consider the motion.

Section 31-237g-35(c) of the Regulations of Connecticut State Agencies provides, in relevant part, that:

No hearing shall be held upon such motions unless the referee determines that good cause exists for such a hearing, except that no such motion shall be dismissed as untimely without a hearing if the motion recites a reason for the untimely filing that would constitute good cause pursuant to Section 31-237g-15 of these regulations.

Section 31-237g-15(b) of the Regulations of Connecticut State Agencies provides, in relevant part, that in determining whether good cause has been shown, the referee shall consider all relevant factors, including but not limited to: the failure of the administrator, the appeals division, or any other party to discharge its responsibilities; whether the party was represented; the degree of the party's familiarity with the procedures of the Appeals Division; and whether the party acted diligently in filing an appeal once the reason for the late filing no longer existed.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

We find that the referee's original decision in this case was mailed on August 29, 2006, and that the claimant's motion to the referee to reopen that decision was filed on September 20, 2006, beyond the twenty-one day appeal period allowed by law. The record reveals that the referee denied the claimant's motion on the grounds that it was not timely filed, without conducting a hearing on that issue. We have previously ruled that where the party has offered a reason that could constitute good cause, the referee must hold a hearing on the timeliness of a motion to determine whether he or she has jurisdiction. See Chavez v. Rent America, Board Case No. 194-BR-89 (3/30/89). In the case of an attorney filing an appeal or motion late, we have stated that we are reluctant to penalize a party who has been diligent in seeking representation for the failure of its representative when the representative's good faith error results in untimely filing, especially if there is no showing that the untimely action prejudiced the other party. See Holley v. Summagraphics Corp., Board Case No. 940-BR-89 (12/20/89). We have also stated that this doctrine is particularly applicable when the representative is unfamiliar with appeals division procedures. Chamberlain v. Amphenal Corp., Board Case No. 972-BR-89 (12/20/89). Once it is established that the party acted diligently, the question remains whether its representative's actions may be similarly excused. The referee in the case before us did not conduct a hearing to determine whether the claimant's attorney's actions may be excused as the result of good faith error.

Although we have not defined good faith error in our regulations, other jurisdictions have defined the term as excusable error, genuine confusion, or simple negligence as opposed to gross negligence. See Trujillo v. Ind. Comm. and Rose Medical Center Hospital Assn., Colo. Ct. App., No. 81CA1217, 4/22/82, cited in Colo. Unempl. Ins. Rep. (CCH), § 2020.82 (6/30/86); Gibson v. App. Bd, Va. Sup. Ct., 5/22/73, cited in 1B Unempl. Ins. Rep. (CCH), § 2020.82; Flores v. App. Bd., Cal. Ct App., 2d Dist., 2/21/73, cited in 1B Unempl. Ins. Rep. (CCH), § 2020.82. In Edwards v. Impact Management Group, Inc., Board Case No. 357-BR-90 (7/31/90), we acknowledged that we had not yet specified the standard we would apply where the party has been diligent in pursuing its appeal and its appeal is filed late due entirely to actions constituting gross negligence on the part of its representative. However, in Zuchichi v. Automatic Burglar Alarm, Board Case No. 810-BR-00 (9/14/00), we examined a number of cases following Edwards to distinguish situations found to be gross negligence or simple negligence on the part of an attorney filing an unemployment compensation appeal on behalf of a party.

We found gross negligence when a tax management firm representative, who was extremely familiar with our procedures, had received the administrator's determination well within the appeal period, but waited until the afternoon of the last day of the appeal period to contact his client. Willard v. David M. Manson, Inc., Board Case No. 69-BR-96 (2/23/96). Similarly, in Serio v. WalBro Automotive, Board Case No. 843-BR-96 (12/4/98), we found a fundamental disregard for the board's processes and gross negligence when a party's representative ignored the notice in the board's decision warning that a private postage meter could not be accepted as a filing date and ignored the board's second request that it produce a record of its mailing the appeal. We also found inexcusable error in Conganelly v. Pace Motor Lines, Inc., Board Case No. 160-BR-90 (12/21/89). In that case, the party's representative was very familiar with unemployment compensation procedures, having previously represented parties. In addition, the representative acknowledged that she failed to read the appeal rights or familiarize herself with the postmark filing provision of the Act.

On the other hand, because the attorney was unfamiliar with our procedures, we exercised jurisdiction over a claimant's late appeal in Chamberlain v. Amphenal Corp., Board Case No. 972-BR-89 (12/20/89), where the claimant advised the attorney that he wished to appeal the referee's decision two days prior to the appeal deadline and the attorney negligently missed the filing deadline by not opening the claimant's file until the day after the expiration of the appeal period. See also Edwards v. Impact Management Group, Inc., supra (late filing excused where claimant could not have understood appeals procedures due to illiteracy and was totally dependent on his representative, who was unfamiliar with our proceedings but acted with extraordinary diligence in attempting to assure that the claimant's appeal was filed timely). In Santacroce v. Center for Tax Education and Research, Board Case No. 613-BR-95 (5/12/95), we held that the employer's attorney had good cause for filing a late appeal when he either miscalculated the last day of the appeal period or confused the instant appeal with a separate appeal which he was filing on his client's behalf relative to another employee. The distinction between simple and gross negligence hinges on the representative's knowledge of the appeals division's procedures and whether the representative attempted to comply with appeals division procedures.

Accordingly, the referee erred in failing to conduct a hearing on the issue of whether the claimant exercised diligence and whether the claimant's attorney committed simple or gross negligence in filing a late motion to reopen in this case.

V. DISPOSITION AND ORDER

The matter is remanded to the referee to conduct a hearing and issue a decision as to whether the claimant's late filing of his motion to reopen is excused. If the referee accepts jurisdiction over the motion, he will then rule upon the merits of that motion. The board does not retain jurisdiction in this matter.

BOARD OF REVIEW

_______________________________

Lynne M. Knox, Chair,

ES Board of Review

In this decision, Board Member Elizabeth S. Wagner concurs.

LMK:ASK:lm

COPIES OF THIS DECISION PROVIDED TO:

BENEFIT PAYMENT CONTROL UNIT

Department of Labor

200 Folly Brook Blvd.

Wethersfield, CT 06109

HAYBER LAW FIRM, LLC

Attn: Attorney Richard E. Hayber

221 Main Street, Suite #400

Hartford, CT 06106

SIEGAL, O'CONNER, O'DONNELL & BECK, P.C.

Attn: Attorneys Michael J. Spagnola & Glen A. Duhl

150 Trumbull Street

Hartford, CT 06103