DEBBIE J. TEATER, APPELLANT,
v.
DEPARTMENT OF COMMERCE BOARD OF REVIEW, STATE OF FLORIDA, AND SEARS, ROEBUCK AND COMPANY, APPELLEES
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An unemployment compensation claimant appealed the dismissal of her benefits appeal as untimely filed. The court reversed, holding that the evidence did not support the finding that the appeal was untimely because there was insufficient proof of actual mailing of the original determination to the claimant.
The court held that the conclusion the initial appeal was untimely is not supported by competent substantial evidence, and therefore the appeal should be accepted and the case remanded for consideration on the merits.
[1] An appeal from an unemployment compensation determination must be filed within 10 days after the date of mailing of the notice of determination to the claimant's last kno…
[2] A claimant's testimony that they did not receive a copy of an unemployment compensation determination, coupled with the absence of direct evidence of actual mailing and a…
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Join FLexlaw to unlock all legal intelligence“The claimant or any other party entitled to notice of a determination as herein provided, may file an appeal from such determination with an appeals referee within 10 days after the date of mailing of the notice to his last known address or if such notice is not mailed, within 10 days after the date of delivery of such notice.”
Sets forth the statutory requirement for timely filing of unemployment compensation appeals.
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Join FLexlaw to unlock all legal intelligenceDebbie Teater received a Claims Examiner's determination of ineligibility for unemployment benefits with a notice of right to appeal by December 10, 1…
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PER CURIAM.
This appeal by a claimant for unemployment compensation is directed to an order of the State Board of Review affirming a decision of an Appeals Referee which had dismissed, as untimely, the claimant’s appeal of a Claims Examiner’s determination that she was ineligible for benefits.
Section 443.07(4)(b)l, Florida Statutes (1977), provides:
The claimant or any other party entitled to notice of a determination as herein provided, may file an appeal from such determination with an appeals referee within 10 days after the date of mailing of the notice to his last known address or if such notice is not mailed, within 10 days after the date of delivery of such notice.
In this case, appended at the foot of the Examiner’s written determination was a notice of right of appeal, which stated that the last date for appeal was December 10, 1977, and which contained the statement: “Date mailed 11-30-77.” Below that notice and statement a space was provided for signature of “Examiner”. It was not so signed.
The claimant filed an appeal on January 11, 1978, on which she stated she had not received a copy of the determination and had learned of it that day. After a hearing the Appeals Referee dismissed the appeal as untimely filed. The claimant appealed that ruling to the Board of Review, which then remanded the cause to the Appeals Referee to take testimony relating to the question of timeliness of the initial appeal. After such hearing, the Appeals Referee held the appeal had been untimely. The claimant appealed that ruling to the Board of Review, which affirmed. This appeal by the claimant ensued.
We hold a conclusion by the Appeals Referee affirmed by the Board of Review, that the initial appeal was untimely is not supported by competent substantial evidence. The testimony of the claimant that she did not receive a copy of the Examiner’s determination in the mail, her prompt filing of an appeal when, according to her, she learned of the decision (by a visit to the office); the absence of direct evidence of actual mailing of the determination to the claimant; the lack of evidence as to the customary procedures employed for mailings of this nature; and the fact that the certificate or statement of mailing went unsigned; all taken together served to create such uncertainty in the matter that, in our view, the ends of justice will best be served by acceptance of the appeal.
The order appealed from is reversed, and the matter is remanded to the Board of Review with direction that the Board of Review shall further remand the matter to the Appeals Referee, with direction to the latter that the claimant’s appeal filed January 11, 1978, is to be considered and determined on its merits.
It is so ordered.
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Applegate v. Nat'l Health Care Affiliates, Inc., 667 So. 2d 332 (Fla. 1st DCA 1995)…ffect of late filing of the appeal). Such factual questions should be resolved by a fact-finding tribunal on remand. See Finney v. Florida Unemployment Appeals Commission, 587 So. 2d 637 (Fla. 4th DCA 1991); but see Teater v. Department of Commerce, 370 So. 2d 847 (Fla. 3d DCA 1979) (directing that the appeal be considered on the merits upon remand, in the interest of justice). We remand for an evidentiary hearing on the question whether the appellant’s failure to file her appeal within twenty days of the ren…
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Landrum v. James Rummer Timber Harvesting, Inc., 645 So. 2d 577 (Fla. 2d DCA 1994)…ess, we remand for an evi-dentiary hearing. Livingston v. Unemployment Appeals Comm’n, 620 So. 2d 1103 (Fla. 4th DCA 1993); Robinson. See also Waldron v. City of Arcadia, 409 So. 2d 1138 (Fla. 2d DCA 1982); Teater v. Dep’t of Commerce Bd. of Review, 370 So. 2d 847 (Fla. 3d DCA 1979). On remand, if it is determined that Land-rum did not receive the appeals referee’s decision in time to seek further appellate review, he should be afforded an opportunity to appeal. Reversed and remanded. DANAHY, A.C.J., and Q…
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Burina Robinson v. Fla. Unemployment Appeals Comm'n & Morrison, Inc., 526 So. 2d 198 (Fla. 4th DCA 1988)…ion that it was without jurisdiction, thus following two of our companion courts, in similar cases; and we reverse and remand with direction that the appeal be heard and determined on its merits. In Teater v. Department of Commerce Board of Review, 370 So. 2d 847 (Fla. 3d DCA 1979), the paper informing the claimant of his right of appeal stated that the last day for appeal was December 10,1977. There was a statement on the paper that it was mailed November 30, 1977, but that statement was not signed by the e…
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