APPEALS, Proof of service, Time limits, One year limit
CITE AS: McBride v Americana Mobile Home Park, Inc., 173 Mich App 275 (1988).
Appeal pending: No
Claimant: Jimmie McBride
Employer: Americana Mobile Home Park, Inc.
Docket No: B85 04773 100673
COURT OF APPEALS HOLDING: When there is no proof of service of a determination on a party, the 30-day period in which to protest the determination is tolled, and even if the protest is filed more than 1 year later, Section 32a does not bar the Commission from considering and ruling upon it.
FACTS: Employer filed a protest to a determination issued July 23, 1982 on March 14, 1985. Employer alleged non-receipt of the determination as its basis for failure to timely protest. The Referee and the Board of Review found that employer was entitled to no relief because it filed more that 1 year after the determination was issued.
DECISION: Employer has 30 days from the date of the Court of Appeals decision to file a protest to a determination more than 2 years old.
RATIONALE: "We believe that in order to reflect compliance with the statutory mandate relative to notice, the MESC file should contain some proof reflecting the fact that defendant was personally served with or sent a copy of the determination. We are simply unable to conclude that there was compliance with the notice provisions of the statute in this case.
We are therefore constrained to conclude that there was no competent, material and substantial evidence on the whole record to support the implicit finding that the defendant had been notified of the MESC determination and that, therefore, the applicable appeal periods began running. There being no proof that notice of the determination was sent to the defendant, defendant has the now applicable 30-day appeal period in which to file an application for review of the determination."