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Meeker v Neuens Timber Products 16.62

Section 34

PROCEDURE, Reopening, Good cause, Board Rule 109, Legitimate inability to act, Delay in receiving decision

CITE AS: Meeker v Neuens Timber Products, Delta Circuit Court, No. 96-13082-AE (February 14, 1997)

Appeal pending: No

Claimant: Charles C. Meeker

Employer: Neuens Timber Products

Docket No. B94-07515-132640

CIRCUIT COURT HOLDING: There are two prongs to the exercise of discretion when the Board is presented with a late request for review of its decision. The first prong is whether there is good cause for the delay in seeking review of the underlying decision under Rule 109. The second prong is whether there is good cause for further review of the merits . Good cause found here where the Board appeal had been pending for seventeen months, claimant was only home intermittently, no longer could be expected to be vigilant for receipt of the decision, acted promptly after it was delivered to him.

FACTS: After a favorable Referee decision, a Board decision adverse to the claimant was issued November 30, 1995. The deadline for a timely appeal was January 2, 1996. Claimant filed a request for reopening by the Board on January 8, 1996. Claimant was an over-the-road truck driver and was only home five days between the date the Board's decision was issued and the date he requested review. Though the decision had probably been at claimant's home most of that period, claimant did not actually receive the decision personally until his wife handed it to him unopened on January 5, 1996.

DECISION: Remanded to the Board of Review for a finding of whether there was good cause to review the underlying merits.

RATIONALE: Under Rule 109, good cause for an untimely protest is established if the party had a legitimate inability to act sooner. "Given the holiday season, given that he was gone from his home in pursuit of his occupation, and given further that more than 17 months had elapsed since the referee hearing after which time the claimant could not be reasonably expected to ask his spouse if a decision had been received while he was away, and given that others in the home actually received the mailing and did not present it to the claimant until January 5, 1996, the board abused its discretion in failing to find good cause to at least consider the underlying merits of claimant's request for reopening and review."


24, 12, 16: K

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