Millet v. Workforce Services

2023 UT App 129
THE UTAH C OURT OF APPEALS
S HAREE H. M ILLET,
Petitioner,
v.
DEPARTMENT OF WORKFORCE S ERVICES ,
Respondent.
Opinion
No. 20220741-CA
Filed November 2, 2023
Original Proceeding in this Court
David J. Holdsworth, Attorney for Petitioner
Robert D. Andreasen, Attorney for Respondent
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and
DAVID N. M ORTENSEN concurred.
HARRIS, Judge:
¶1 	Sharee H. Millet obtained unemployment benefits through
the Pandemic Unemployment Assistance (PUA) program. Later,
the Utah Department of Workforce Services (the Department)
determined that she was not entitled to some of those benefits
and, moreover, that she had obtained some of them fraudulently.
Based on this determination, the Department ordered Millet to
pay nearly $14,000, including a fraud overpayment penalty.
¶2 	Millet attempted to administratively appeal this order, but
an administrative law judge (the ALJ) and the Department’s
Appeals Board (the Board) each determined that Millet’s appeal
was untimely, and each rejected Millet’s argument that she had
good cause—cognitive impairments attributable to a traumatic
brain injury—for not filing the appeal in a timely fashion. In
addition, the ALJ and the Board each included cursory statements

Millet v. Workforce Services
20220741-CA 	2 	2023 UT App 129
indicating that, even if the appeal had been timely, they would
have rejected it on its merits.
¶3 	For the reasons that follow, we set aside the Board’s
determination that Millet’s administrative appeal was filed late
without good cause, and we instruct the Board to revisit the issue
and more fully consider the implications of Millet’s cognitive
impairments on both (a) her ability to have filed her appeal on
time and, if necessary, (b) her capacity to have formed the
knowledge required for commission of fraud.
BACKGROUND
¶4 	Millet is cognitively impaired, at least to some extent. The
ALJ heard evidence that Millet “has documented . . . mental
comprehension problems” due to a “brain bleed at birth” and a
subsequent “traumatic brain injury” and that, as a result, her
“memory is really bad.” Based on this evidence, the ALJ made a
finding that Millet, at some point, had sustained “a traumatic
brain injury.” And the Board made a finding that Millet “suffered
a traumatic brain injury and has memory issues and difficulty
dealing 	with 	legal 	matters.” 	But 	the 	record 	contains 	little
additional information regarding the severity of Millet’s injury
and 	the 	extent 	of 	her 	cognitive 	impairments. 	There 	is 	no
indication in the record, for instance, that Millet has ever been
adjudicated to be legally incapacitated. And the record indicates
that—during the times relevant to this proceeding—Millet was
working as “a teacher” at a daycare facility.
¶5 	Indeed, in 2020, Millet was working at the daycare facility
when the COVID-19 pandemic broke out. At that time, she
reported to her employer that she had a weakened immune
system and was at high risk for respiratory infections, and on this
basis Millet decided to stop working and seek benefits under the
PUA program. But due to her cognitive impairments, she was
apparently unable to navigate the administrative process on her

Millet v. Workforce Services
20220741-CA 	3 	2023 UT App 129
own, and so—as she often did with matters of this nature—she
sought the assistance of a friend and neighbor (Neighbor) who
agreed to help her fill out an application for benefits.
¶6 	Millet then filed for, and later received, unemployment
benefits 	for 	an 	eleven-week 	period; 	in 	the 	application, 	she
certified that she had not worked during this period. But it turned
out that, for at least some of this time, Millet had picked up
sporadic shifts at the daycare facility and had earned employment
income. After learning of these discrepancies, the Department
investigated 	and 	determined 	that 	Millet 	had 	“knowingly
withheld material information or failed to report information in
order to receive [PUA] benefits to which [she was] not entitled.”
Based on this finding, the Department imposed on Millet an
overpayment and fraud penalty totaling $13,830.
¶7 	On February 25, 2022, the Department sent Millet several
letters detailing its findings and penalties. The letters also stated:
“RIGHT TO APPEAL: You may appeal if you believe this decision
is incorrect. Your appeal must be submitted in writing no later
than 03/12/2022.” Millet later testified that she never received
these letters and that she did not learn of the Department’s
decisions until March 22, when she received collection letters
from the Department. That same day, Millet texted Neighbor
asking for assistance and sent him a photo of the collection letters.
¶8 	Neighbor was out of town when he received Millet’s text,
and he did not return until April 4. On April 5, Neighbor helped
Millet contact the Department by telephone. According to Millet,
when she called the Department, an employee “told her that she
could still appeal” the Department’s order. Thereafter, with the
help of her mother and Neighbor, Millet filed an appeal on April
8—seventeen days after receiving the collection letters.
¶9 	A few weeks later, a telephonic hearing was held before the
ALJ 	to 	consider 	Millet’s 	appeal. 	Both 	Millet 	and 	Neighbor
appeared at the hearing and addressed the ALJ. The ALJ’s

Millet v. Workforce Services
20220741-CA 	4 	2023 UT App 129
questions were primarily focused on the timeliness of the appeal,
and specifically on whether Millet could establish good cause for
not filing her appeal on time. Two days after the hearing, the ALJ
issued a written decision in which she determined that Millet’s
appeal was untimely and that Millet had not established good
cause for her untimeliness. The ALJ acknowledged that Millet
“had a traumatic brain injury” and that Millet receives assistance
from others, including Neighbor, “with letters and legal matters.”
But 	the 	ALJ 	nevertheless 	determined 	that 	Millet 	could 	not
demonstrate good cause for her untimely appeal because Millet
and Neighbor “learned of the overpayment [order] and did not
appeal within ten days” and “[t]hey could have researched and
appealed within the ten days.” See Utah Admin. Code R994-508-
104(1) (providing that good cause may be shown where “the
appellant received the decision after the expiration of the time
limit for filing the appeal, the appeal was filed within ten days of
actual receipt of the decision and the delay was not the result of
willful neglect”). The ALJ did not analyze any other methods by
which a claimant might demonstrate good cause, such as whether
Millet’s untimeliness had been caused by “circumstances beyond
[Millet’s] 	control” 	or 	by 	“compelling 	and 	reasonable”
circumstances. See id. R994-508-104(2), (3). In particular, the ALJ
did not assess whether Millet’s cognitive impairments could
constitute compelling or reasonable grounds for her late appeal.
¶10 	After concluding that Millet’s appeal was untimely, the
ALJ included the following two sentences in its ruling regarding
the ultimate merits of Millet’s appeal: “Even if jurisdiction had
been established, the result would have been the same. A full
evidentiary hearing was conducted on the issue appealed, and
based on the testimony and evidence presented the denial of
benefits would have been affirmed.” The ALJ again did not assess
the role Millet’s cognitive impairments might have played in her
inaccurate application for benefits, and specifically did not assess
whether Millet’s condition might have impacted her ability to
have the knowledge necessary for a finding of fraud.

Millet v. Workforce Services
20220741-CA 	5 	2023 UT App 129
¶11 	Millet then appealed the ALJ’s decision to the Board. Aside
from one small correction not relevant here, the Board “adopt[ed]
the remaining factual findings of” the ALJ. In particular, the Board
found that Millet “suffered a traumatic brain injury and has
memory 	issues 	and 	difficulty 	dealing 	with 	legal 	matters.”
Nevertheless, the Board affirmed the ALJ’s determinations in all
respects, and provided some additional analysis. The Board noted
that Millet’s appeal “was not filed within ten days after [Millet]
learned of the decision,” and the Board therefore concluded that
Millet could not show good cause under the first of the three listed
options in the administrative code. See id. R994-508-104(1). And
the Board determined that, although it “sympathize[d] with
[Millet’s medical] condition,” Millet “was not prevented from
filing a timely appeal by circumstances outside her control” nor
was she unable to file a timely appeal because of “compelling or
reasonable circumstances,” because “[f]iling an unemployment
appeal 	only 	takes 	a 	few 	minutes, 	and 	[Millet] 	and 	her
representative reasonably could have done so even while her
representative was out of town.” The Board therefore affirmed the
ALJ’s conclusion that Millet’s appeal was untimely and was not
excused by good cause.
¶12 	Like the ALJ, the Board then also included a few sentences
regarding the merits of Millet’s appeal: “Even if [Millet] had good
cause for the untimely appeal, the record shows she failed to
accurately 	report 	her 	work 	and 	earnings 	for 	the 	weeks 	in
question. [Millet] misreported her earnings and, as a result,
received benefits to which she was not entitled. If the Board had
jurisdiction over the merits of the case, it would affirm the
overpayment and penalty.” But this was the extent of the Board’s
analysis of the merits; like the ALJ, it did not assess the role
Millet’s 	cognitive 	impairments 	might 	have 	played 	in 	her
inaccurate application for benefits, and specifically did not assess
whether Millet’s condition might have impacted her ability to
have the knowledge necessary for a finding of fraud.

Millet v. Workforce Services
20220741-CA 	6 	2023 UT App 129
ISSUES AND STANDARDS OF REVIEW
¶13 	Millet asks this court to review the Board’s determinations,
and she raises two issues for our consideration. First, Millet
challenges the Board’s conclusion that she did not have good
cause for filing an untimely appeal. Second, Millet takes issue
with the Board’s brief commentary about the merits of her appeal.
¶14 	To the extent Millet is challenging findings of fact, “we are
required to uphold [them] if they are supported by substantial
evidence when viewed in light of the whole record before the
court.” VanLeeuwen v. Industrial Comm’n, 901 P.2d 281, 284 (Utah
Ct. App. 1995) (quotation simplified), cert. denied, 910 P.2d 426
(Utah 1995). However, to the extent Millet is raising a legal
challenge, “we review the Board’s application or interpretation of
a statute as a question of law under the correction-of-error
standard.” Bingham v. Department of Workforce Services, 2022 UT
App 110, ¶ 21, 518 P.3d 626 (quotation simplified). As concerns
our review of the Board’s “application of the law to its findings of
fact, we will uphold the Board’s decision so long as it is within the
realm of reasonableness and rationality.” Record v. Workforce
Appeals Board, 2011 UT App 340, ¶ 19, 263 P.3d 1210 (quotation
simplified).
¶15 	In particular, the decision as to “[w]hat constitutes ‘good
cause’” under administrative rules “presents us with a mixed
question of law and fact,” and in such matters “we defer to the
informed discretion” of the administrative agency “and reverse
only upon a plain abuse of discretion.” See Pacheco v. Board of
Review, 717 P.2d 712, 714 (Utah 1986) (per curiam). Likewise, “the
Board’s determination that [a claimant] committed fraud is a
mixed question of law and fact that is more fact-like than law-
like,” and we therefore “grant more deference to the Board’s
decision” regarding fraud. See Migenes v. Department of Workforce
Services, 2016 UT App 129, ¶ 2, 378 P.3d 116 (per curiam)
(quotation simplified).

Millet v. Workforce Services
20220741-CA 	7 	2023 UT App 129
ANALYSIS
¶16 	Millet’s primary challenge is to the Board’s determination
that she did not have good cause to justify her untimely appeal.
In particular, she asserts that there existed “compelling and
reasonable” grounds—her cognitive impairments—for her failure
to appeal in a timely fashion. See Utah Admin. Code R994-508-
104(3). We agree with Millet that the Board’s analysis with regard
to good cause was infirm, for two reasons. First, the Board
incorrectly considered the capability of Neighbor, who is not
Millet’s legal representative, to file an appeal on her behalf. And
second, the Board did not assess the extent of Millet’s cognitive
impairments, and in particular did not make any determination
as to whether Millet had carried her burden of demonstrating that
her impairments are severe enough to constitute compelling and
reasonable circumstances justifying a late appeal.
¶17 	Under Utah’s administrative code, a late appeal may be
considered on its merits if the appellant can demonstrate good
cause for the untimeliness. See id. R994-508-104; see also Armstrong
v. Department of Emp. Sec., 834 P.2d 562, 566 (Utah Ct. App. 1992)
(stating that the claimant “must establish [that] the circumstances
of 	her 	delay 	are 	‘compelling 	and 	reasonable’”). 	But 	under
applicable rules, “[g]ood cause” is restricted to circumstances
where a claimant can demonstrate that:
(1) the appellant received the decision after the
expiration of the time limit for filing the appeal, the
appeal was filed within ten days of actual receipt of
the decision and the delay was not the result of
willful neglect;
(2) 	the 	delay 	in 	filing 	the 	appeal 	was 	due 	to
circumstances beyond the appellant’s control; or

Millet v. Workforce Services
20220741-CA 	8 	2023 UT App 129
(3) 	the 	appellant 	delayed 	filing 	the 	appeal 	for
circumstances 	which 	were 	compelling 	and
reasonable.
Utah Admin. Code R994-508-104.
¶18 	Notably, each of these circumstances refers only to “the
appellant”; 	thus, 	the 	inquiry 	is 	whether 	the 	appellant’s
circumstances constitute good cause. See id. Here, Millet—and
only Millet—is the appellant. Nevertheless, after noting that
“[f]iling an unemployment appeal only takes a few minutes,” the
Board concluded that Millet “and her representative reasonably
could have” filed an appeal within ten days of receiving the
collection letters, and that this could have happened “even while
[Millet’s] representative was out of town.” The trouble with this
analysis is that Millet has no legal “representative” for the
purposes of her appeal.
¶19 	While Neighbor did provide some assistance to Millet with
regard to her appeal, there is no evidence that he was ever
designated as her “representative” in any meaningful or legally
binding way.1 Neither the ALJ nor the Board made any finding
that Neighbor had any relation or responsibility to Millet that
would legally qualify his actions as those of hers. On this record,
1. There is some indication in the record that Millet, due to her
apparent cognitive impairments, may have designated a “family
member” 	as 	her 	“durable” 	power 	of 	attorney; 	during 	the
proceedings before the Board, Millet offered to provide evidence
establishing this, if necessary. A family member with power of
attorney over Millet’s affairs may or may not be the sort of
representative who could be tasked with meeting deadlines on
Millet’s behalf; the Board makes no argument in this regard, and
we offer no opinion on that question. But in any event, it is
undisputed here that Neighbor was not the “family member” to
whom Millet provided a power of attorney.

Millet v. Workforce Services
20220741-CA 	9 	2023 UT App 129
the evidence indicates that Neighbor was just offering, on a
volunteer basis, to do what he could to assist Millet in navigating
the administrative process; he had no responsibility, legal or
otherwise, to assist with Millet’s appeal. All responsibility for
filing that appeal was Millet’s alone. It is therefore irrelevant, for
purposes of assessing whether Millet had “good cause,” that
Neighbor might have been able to complete the appeal faster or
from an out-of-town location. Neighbor’s capabilities should not
have factored into the Board’s analysis of whether Millet could
demonstrate reasonable and compelling circumstances for her
untimely appeal.
¶20 	The Board’s second mistake relates to its first, in that the
Board did not fully engage with the impact Millet’s undisputed
cognitive impairments might have had on her ability to file a
timely appeal. Specifically, the Board failed to assess the extent of
Millet’s impairments and failed to make a finding as to whether
Millet 	had 	carried 	her 	burden 	of 	demonstrating 	that 	those
disabilities were severe enough to constitute a “reasonable and
compelling” reason for an untimely appeal. The Board specifically
found that Millet “suffered a traumatic brain injury and has
memory issues and difficulty dealing with legal matters.” But the
Board made no effort to analyze whether Millet’s injury or mental
impairments had any bearing on her failure to file a timely appeal.
Instead, the Board simply found that “filing an appeal is not a
complicated or lengthy process,” and concluded that Millet “and
her representative reasonably could have [filed an appeal] even
while her representative was out of town.” But, as already noted,
whether Neighbor could have filed an appeal in a timely manner
is irrelevant. It may be that Millet’s cognitive impairments are not
severe enough to constitute good cause for filing an untimely
appeal, but the Board’s findings do not indicate that it engaged
substantively on that question.
¶21 	Supporting its conclusion, the Board cited various cases, all
of which involve factual scenarios that supported a determination

Millet v. Workforce Services
20220741-CA 	10 	2023 UT App 129
that good cause for filing a late appeal was not established.2 But
only one of those cases involved a situation in which the claimant
asserted that a medical condition prevented the filing of a timely
appeal. See Dugdale v. Department of Workforce Services, 2010 UT
App 36U (per curiam). In Dugdale, the claimant was denied
benefits and failed to file a timely appeal. Id. para. 2. According to
the claimant, her appeal was untimely because she “suffered from
depression.” Id. para. 5. In determining whether the claimant’s
depression constituted good cause, the Board reviewed letters
from her physician. Id. In the first letter, the physician indicated
2. See, e.g., Kirkwood v. Department of Emp. Sec., 709 P.2d 1158, 1158
(Utah 1985) (per curiam) (affirming the Board’s finding that
“stress due to family problems” did not excuse a late appeal);
Lockyear v. Department of Workforce Services, 2011 UT App 236,
¶¶ 7, 9, 262 P.3d 451 (per curiam) (declining to disturb the Board’s
determination that good cause for filing a late appeal was not
shown where the claimant alleged that his appeal was untimely
because he required assistance from a family member who was
experiencing medical issues during the appeal period); Dugdale v.
Department of Workforce Services, 2010 UT App 36U, paras. 5–6 (per
curiam) (affirming the Board’s finding that good cause for filing a
late appeal was not established where the claimant alleged her
appeal was untimely because she “suffered from depression”);
Ayuso v. Department of Workforce Services, 2009 UT App 274U,
paras. 5–6 (per curiam) (affirming the Board’s finding that good
cause for filing a late appeal was not shown where the claimant
alleged she was preoccupied with caring for her father); Autoliv
ASP, Inc. v. Workforce Appeals Board, 2000 UT App 223, ¶¶ 13–19, 8
P.3d 1033 (concluding that good cause for filing a late appeal was
not shown where the claimant’s attorney argued he was confused
by conflicting notices); Armstrong v. Department of Emp. Sec., 834
P.2d 562, 567 (Utah Ct. App. 1992) (affirming the Board’s finding
that filing a late appeal was not excused where the claimant was
confused as to whether “she had ten calendar days” or “ten
working days” to appeal).

Millet v. Workforce Services
20220741-CA 	11 	2023 UT App 129
that the claimant suffered from depression, but the Board noted
that no specific condition was identified as it related to the
relevant time period. Id. And, according to the Board, “the letter
was insufficient to establish that it was not within [the claimant’s]
control to file a timely appeal.” Id. In the second letter, the
claimant’s 	physician 	wrote 	that 	he 	“did 	not 	believe 	that
[claimant’s] 	condition 	was 	so 	severe 	as 	to 	render 	her
incompetent.” Id. After evaluating the evidence presented, the
Board did not find that the claimant’s late appeal was out of her
control or that her medical condition constituted reasonable or
compelling circumstances justifying a late appeal. Id. para. 6.
Thus, in Dugdale, we declined to disturb the Board’s decisions
because they were sufficiently supported by the record. Id.
¶22 	The facts in Dugdale are similar to Millet’s in that the
claimants in each case alleged that the late filing of the appeal was
due 	to 	health-related 	conditions. 	But 	the 	two 	cases 	are
distinguishable. In Dugdale, the Board made findings regarding
the impact of the claimant’s medical condition on her ability to file
a timely appeal, addressing and analyzing the two letters from her
physician. Id. But here, even in the face of Millet’s claim that her
cognitive impairments affected her ability to file a timely appeal,
and despite making a specific finding that Millet had “suffered a
traumatic brain injury and has memory issues and difficulty
dealing with legal matters,” the Board made no findings about
how, if at all, Millet’s condition affected her ability to timely
appeal. It is certainly conceivable that a claimant with severe
cognitive 	impairments 	could 	demonstrate 	“compelling 	and
reasonable” grounds for filing an untimely administrative appeal.
On the other hand, a claimant who, despite a certain level of
cognitive impairment, is high-functioning enough to competently
navigate administrative procedures might not be able to make the
required showing. The Board erred by not directly addressing
Millet’s argument that her cognitive impairments were, in her
case, severe enough to constitute “compelling and reasonable”
grounds for her untimely appeal.

Millet v. Workforce Services
20220741-CA 	12 	2023 UT App 129
¶23 	For these reasons, we set aside the Board’s determination
that Millet had not shown good cause for her untimely appeal,
and we instruct the Board to reassess that question. We express
no 	opinion 	as to 	whether 	that 	question can 	be 	adequately
reassessed using the existing evidentiary record, or whether
additional proceedings would be appropriate.
¶24 	Finally, in an effort to provide guidance that may become
useful during reassessment, we briefly address Millet’s complaint
regarding the Board’s cursory indication that, even if it had
jurisdiction over Millet’s appeal, it would have affirmed the
denial of Millet’s benefits on the merits. In particular, Millet
asserts 	that—just 	as 	the 	Board 	did 	not 	take 	her 	cognitive
impairments into account in assessing whether there existed good
cause for her untimely appeal—the Board likewise did not take
those impairments into account in imposing a fraud penalty.
¶25 	We first note, as a preliminary matter, that Millet will not
be able to challenge the imposition of the fraud overpayment if
the Board determines, upon further review, that her appeal was
untimely filed without good cause. Only if the Board determines
that Millet has carried her burden of demonstrating good cause
for her untimely appeal will the Board find it necessary to assess
Millet’s challenge to the underlying fraud penalty.
¶26 	But 	in 	that 	event, 	the 	Board 	should 	take 	Millet’s
impairments into account in assessing whether she had the
knowledge to have committed fraud. One of the three elements of
“fraud,” as that term is defined in our law, is that the claimant
must have had “knowledge.” See Utah Admin. Code R994-406-
401(1)(b). Under the rule, “knowledge” is established if a claimant
“kn[ew] or should have known the information submitted to the
Department was incorrect or that he or she failed to provide
information required by the Department.” Id. In Millet’s case,
determining what she “knew or should have known” necessitates
a more robust inquiry into the extent of her mental condition than

Millet v. Workforce Services
20220741-CA 	13 	2023 UT App 129
the Board engaged in. See id. To be sure, in most situations a
claimant “is charged with knowledge” of facts “within the
claimant’s experience.” Adams v. Department of Workforce Services,
2012 UT App 226, ¶ 28, 285 P.3d 781, cert. denied, 293 P.3d 376
(Utah 2012). And a claimant is usually “deemed to know the
amount of and when . . . wages” were received. Id. But a claimant
who suffers from sufficiently severe cognitive impairments might
not have the capacity to know, or to remember, whether she was
employed during a given time period. Thus, if the Board reaches
the merits of Millet’s challenge to the fraud penalty, it must
engage 	with 	the 	question 	of 	whether 	Millet’s 	impairments
prevented her from having the requisite “knowledge” for a
finding of fraud. See Utah Admin. Code R994-406-401(1)(b). On
this matter—as opposed to on the “good cause” question—it is
the Department that bears the relevant burden. See Adams, 2012
UT App 226, ¶ 22 (“To establish fraud, the Department must
prove materiality, knowledge, and willfulness.”).
CONCLUSION
¶27 	The Board’s analysis as to whether Millet had established
good cause for her untimely appeal was erroneous, in two ways.
First, 	the 	Board 	improperly 	factored 	into 	its 	analysis 	the
capabilities of Neighbor, a volunteer who bore no responsibility
to 	act 	on 	Millet’s 	behalf. 	And 	second, 	the 	Board 	did 	not
meaningfully engage with Millet’s contention that her cognitive
impairments were severe enough to constitute compelling and
reasonable grounds for an untimely appeal. We therefore set aside
the Board’s determination that Millet had failed to show good
cause for her untimely appeal, and we instruct the Board to revisit
that question. And in the event the Board finds good cause for the
untimely appeal, the Board should take those same cognitive
impairments into account in assessing Millet’s challenge to the
Department’s determination that Millet committed fraud.