Cundey v. Department of Workforce Services

2015 UT App 215
THE UTAH COURT OF APPEALS
JEFFREY R. CUNDEY,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20150422-CA
Filed August 27, 2015
Original Proceedings in this Court
Jeffrey R. Cundey, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
JOHN A. PEARCE.
PER CURIAM:
¶1 Jeffrey R. Cundey petitions for review of the final order of
the Workforce Appeals Board (the Board), which determined
that Cundey’s appeal of the Department of Workforce Service’s
(the Department) initial decision was untimely without good
cause, thereby depriving the agency of jurisdiction. This matter
is before the court on its own motion for summary disposition
based on the lack of a substantial question for review.
¶2 An appeal of the Department’s initial ruling must be filed
or postmarked within ten calendar days of the date of the
decision, unless the decision is mailed, in which case an
additional five calendar days is added to the period to file an
appeal. See Utah Admin. Code R994-508-102. A late appeal may
be considered by the Administrative Law Judge (ALJ) if a
claimant can show good cause for the delay. See Autoliv ASP, Inc.
v. Workforce Appeals Bd., 2000 UT App 223, ¶ 12, 8 P.3d 1033.

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20150422-CA 2 2015 UT App 215
Good cause for delay in filing an appeal is limited to
circumstances where the claimant received the determination
after the time to appeal had run, the delay was caused by
circumstances beyond the claimant’s control, or the claimant
filed late under circumstances that were compelling and
reasonable. See Utah Admin. Code R994-508-104.
¶3 Here, Cundey acknowledged that he did not file a timely
appeal. Cundey’s sole reason for not timely filing an appeal of
the Department’s initial decision was that he failed to read the
full decision when it was mailed to him. Both the ALJ and the
Board determined that this did not constitute good cause
because Cundey controlled whether or not he filed an appeal,
and it was his own neglect that resulted in the untimely appeal.
¶4 “The ultimate decision as to whether good cause exists is
a mixed question of law and fact.” Armstrong v. Department of
Emp't Sec., 834 P.2d 562, 565 (Utah Ct. App. 1992). The Board’s
decision concerning whether a person establishes good cause for
filing an untimely appeal is more fact-like because the case “does
not lend itself to consistent resolution by a uniform body of
appellate precedent.” Carbon County v. Workforce Appeals Bd.,
2013 UT 41, ¶ 7, 308 P.3d 477 (citation and internal quotation
marks omitted). “Because of the fact-intensive conclusions
involved at the agency level,” the Board’s determination in such
matters is entitled to deference. Id. “When a petitioner challenges
an agency’s findings of fact, we are required to uphold the
findings if they are supported by substantial evidence when
viewed in light of the whole record before the court.” Stauffer v.
Department of Workforce Servs., 2014 UT App 63, ¶ 5, 325 P.3d 109
(citations and internal quotation marks omitted).
¶5 Based upon the totality of facts presented to the ALJ, we
cannot say that the Board’s determination that Cundey lacked
good cause for filing an untimely appeal was unreasonable. Cf.
Armstrong, 834 P.2d at 567 (determining that a party who filed an

Cundey v. Department of Workforce Services
20150422-CA 3 2015 UT App 215
appeal one day late because she confused working days and
calendar days did not demonstrate good cause for the untimely
filing); Kirkwood v. Department of Emp’t Sec., 709 P.2d 1158 (Utah
1985) (per curiam) (affirming the Board’s decision that the
claimant’s claim of stress from family issues was insufficient to
demonstrate good cause for filing an untimely appeal).
Therefore, because Cundey failed to demonstrate that he had
good cause for the late filing, the ALJ lacked jurisdiction to hear
the appeal. See Utah Admin. Code R994-508-103; Autoliv, 2000
UT App 223, ¶ 12.
¶6 Accordingly, we decline to disturb the decision of the
Board.