### VERMONT SUPREME COURT Case No. 23

- AP

- 259

109 State Street

Montpelier VT 05609

- 0801

802

- 828

- 4774

www.vermontjudiciary.org

Note: In the case title, an asterisk (*) i ndicates an appellant and a double asterisk (**) indicate s a cross

appellant. Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.



### ENTRY ORDER

MAY TERM

, 2024

Christina M. Fisher* v. Depar tment of Labor }

} APPEALED FROM:

} Employment Security Board

} CASE NO. 11

- 22

- 076

- 01

In the above

- entitled cause, the Clerk will enter:

Claimant appeals an Employment Security Board order, which affirmed a decision by an

Admin istrative Law Jud ge (ALJ) dismissing claim ant ’ s appeal to the ALJ as untimely filed

. We

affirm.

Claimant applied for unemployment compensation in 2021. On November 10, 2021, a

claims adjudicator issued a notice denying her claim because she was not able and available for

work as required by statute. Claimant did not recall receiving the notice. On Oc tober 7, 2022,

the Department of Labor sent a reis sued determination to claimant’s address of record. The

determination warned that it would become final unless claimant ap p ealed in thirty days.

Claimant submitted a notice of appeal to an AL J by email on November 13, 2022. Bec ause

claimant ’ s appeal was filed beyond the thirty

- day appeal period , the ALJ dismis sed the appeal

for lack of jurisdiction

.

Claimant appealed to t he Board

. The Board a dopted the ALJ ’ s findings

. T he Board

sustained the ALJ decision, conclud ing that claimant ’ s appeal was filed beyond the thirty

- day

statutory appeal period and therefore was pro perly dismissed

. Claimant appeals.

On appeal to this C ourt, cla imant does not conte st the underlying facts regarding the date

of the reissued determination or the date of her appeal. She argues that her late filing was due to

many factors outside her control, including the pandemic and h er medical con dition

. She als o

argues that there was a delay in mail delivery

, and she did not receive t he October 7, 2022

, determination until between November 2

- 5, 2022. For these reasons, claimant contends the

appeal period should be extended past the th irty

- day deadline.

Pursua nt to statute, a claimant may appeal a determination regarding unemployment

compensation by fil ing an appeal “ within 30 days after notice

, ” and appeal perio ds commence

“ from the date of the determination or decision rendered. ” 21 V.S.A. § § 1348 (a ) , 1357

. Whe n a person submits a sworn statement that the notice was not r eceived and the Commissioner is

sat isfied that the person did not receive notice, a new notice is sent, and the appeal period runs2

from “ the date on which the n ew notic e is sent. ” Id . § 135 7. This Court has held that the time

for filing an appeal to an ALJ is established by statute and jurisdictional and can not be extended,

e xcept as provided by statute

. Allen v. V t

. Emp. Sec. Bd. , 133 Vt. 166, 168 (1975) ; see Trask v

. Dep ’ t of Em p. & Trai ning , 170 Vt. 589, 591 (2000) (mem.) (concluding that appeal was

untimely wher e it was mailed one day after appeal period expired )

. Here, the reissued

determination was sent October 7, 2022. C laimant submitted her appeal mor e than t hirty days

la ter

. Cla imant ’ s proffered grounds for extending that period

— the pandemic, claimant ’ s health,

the mailing delay

— are not bas e s under the statute to extend the appeal period . Therefore,

claimant ’ s appeal was properly dismissed as untime ly filed , and we do n ot reach claimant ’ s arguments regarding the meri ts of the underlyin g decision by the claims adjudicator

.

Affirmed

.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice