PROCEDURE, Jurisdiction, Notice of Denial
CITE AS: Kos (Credit Bureau Services), 1994 BR 125763 (B93-03670)
(Editor's Note: Full Board decision; 4-1)
Appeal pending: No
Claimant: Sharon Kos
Employer: Credit Bureau Services
Docket No. B93-03670 125763
BOARD OF REVIEW HOLDING: The Referee has jurisdiction over a timely appeal from a Notice of Denial of Request for Reconsideration despite the Commission's failure to articulate reasons for denying reconsideration.
FACTS: The employer appealed to the Referee from a Notice of Denial of Request for Reconsideration (DRR). The Notice of Denial did not articulate the reason the MESC found there was no good cause for reconsideration. Since the adjudication did not explain the reason for denying reconsideration, the Referee found the adjudication defective and dismissed the employer's appeal.
DECISION: Remanded to the Referee for the taking of evidence on the question of whether there is good cause for reconsideration. If there is good cause, the Referee is to take evidence and issue a decision on the underlying merits.
RATIONALE: When there is a timely appeal to an MESC Referee, it is the function of the Referee to hold a hearing, receive evidence and decide the substantive and procedural issues governing the rights of the parties under the MES Act, except with respect to matters which have become final. The Notice of Denial did not become final because the employer appealed it to the Referee within thirty days of the date the adjudication was mailed or personally served. The Referee had jurisdiction over the employer's appeal and should have held a hearing.
The most efficient way to correct the Commission's failure to investigate the employer's reason for filing an untimely protest to the determination would have been for the Referee to ask the employer the reason and to give the employer the opportunity to present evidence of good cause for reconsideration. A defect, such as the Commission's failure to investigate or to state reasons for its conclusions in the redetermination or in the Notice of Denial of Request for Reconsideration cannot impede the appeal process. Although the Commission may have erred, the Commission's error was in respect to a non-essential part of the administrative review process and therefore cannot impair the jurisdiction of the Referee.
21, 22, 12, 18, d 24: H