Honaker v. Unemployment Insurance Appeal Board. ( 2015 )


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  •               IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    IN AND FOR SUSSEX COUNTY
    BERNARD HONAKER,                                 )
    )
    )
    Appellant,                              )
    )
    v.                                               )      C.A. No. S14A-12-003 MJB
    )
    ENTERPRISE LEASING CO. AND                       )
    UNEMPLOYMENT INSURANCE                           )
    APPEALS BOARD                                    )
    )
    )
    Appellees.                              )
    Submitted: May 7, 2015
    Decided: August 19, 2015
    Upon Appellant’s Appeal from the Unemployment Insurance Appeals Board, AFFIRMED.
    OPINION
    Bernard Honaker, Jr., 25486 Smith Way, Milton, Delaware 19968, pro se, Appellant.
    Paige Schmittinger, Esq., Deputy Attorney General, 820 North French Street, Wilmington,
    Delaware 19801, Attorney for Appellee Unemployment Insurance Appeal Board.
    BRADY, J.
    1
    I. INTRODUCTION
    Appellant Bernard Honaker, Jr. (“Appellant,” “Honaker”) became separated from his
    employer Enterprise Leasing Co. (“Enterprise”) on July 17, 2014. 1 Appellant claimed that he
    was terminated and hence was eligible for unemployment benefits. Enterprise initially claimed
    that Appellant voluntarily resigned, a position adopted by the Claims Deputy who initially
    reviewed Honaker’s claim. Upon appeal, the Appeals Referee determined that Honaker was in
    fact terminated but that he was still ineligible for benefits because he was terminated for cause.
    The Unemployment Insurance Appeals Board (“UIAB”) refused to hear Honaker’s appeal of the
    Claims Referee’s decision on the grounds that it was untimely. Honaker now appeals the UIAB
    ruling to this Court. Honaker has submitted an opening brief. 2 The UIAB has declined to file an
    answering brief and chosen to rest on the Record. 3 Enterprise has not filed an answering brief or
    otherwise responded. The Court, on May 7, 2015, took the matter under consideration on the
    submissions received by that date. 4
    For the following reasons, the Court AFFIRMS the decision of the UIAB.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    Appellant was employed by Enterprise from November 15, 2007 until July 17, 2014. 5
    Appellant worked primarily at Enterprise’s Rehoboth location. 6 Appellant alleges that on July
    17, 2014, his supervisor ordered him to work for the day at Enterprise’s Millsboro location.7
    The Millsboro location, unlike the Rehoboth location, has an enclosed garage and no air
    1
    Record at 1.
    2
    Opening Brief, Docket Item 5.
    3
    Letter, Docket Item 6.
    4
    Order, Docket Item 8.
    5
    Record at 1.
    6
    Record at 3. Appellant states that he was specifically hired for the Rehoboth location. Opening Brief at *3.
    7
    Record at 26.
    2
    conditioning. 8 Appellant says that he refused, due to his health issues and the fact that there
    were younger employees who could go, one of whom volunteered to go in Appellant’s place. 9
    Appellant claimed that he was terminated for his refusal, but Enterprise maintained that
    Appellant voluntarily resigned.
    A. Initial Determination of Ineligibility and Honaker’s First Appeal
    On August 4, 2014, Honaker applied for unemployment benefits. 10 The Claims Deputy
    charged with making the initial determination regarding eligibility found that Honaker “quit for
    personal reasons not attributable to work,” and hence was neither fired nor resigned with good
    cause. 11 Honaker appealed the Claims Deputy’s decision to the Appeals Referee, asserting that
    he did not resign but instead was fired. 12 A hearing in front of the Appeals Referee was held on
    September 16, 2014. 13
    i. Honaker’s Testimony
    At the hearing, Honaker testified that he walked in the door on Monday morning and his
    supervisor told him to go to the Millsboro location. 14 Honaker testified that he told the
    supervisor that he was not going to Millsboro and “if you don’t want me to work, I’ll go
    home.” 15 Honaker said the supervisor turned around, and Honaker then went out to his car to
    leave. 16 Honaker said that as he was heading to his car, another employee, John, came outside to
    8
    Record at 28.
    9
    Opening Brief, Docket Item 5, at *3.
    10
    Record at 1.
    11
    Record at 12.
    12
    Record at 15-16.
    13
    Record at 18.
    14
    Record at 26.
    15
    Record at 26.
    16
    Record at 26.
    3
    get him and told Honaker “don’t go like this.” 17 John went back inside and told the supervisor
    that he would go in Honaker’s place, but the supervisor refused and said that she wanted
    Honaker to go to Millsboro. 18
    Honaker testified that he proceeded on home. 19 About two or three hours later, Honaker
    spoke with his supervisor by phone. Honaker testified that the supervisor asked him whether he
    would go to Millsboro if directed to do so in the future, and that he told her “I don’t know. We’ll
    have to cross that bridge when we come to it.” 20 Honaker said that the supervisor responded, “I
    guess we’re having an impasse,” prompting him to ask if he was fired. 21 Honaker said that the
    supervisor then told him, “I guess you are.” 22 Honaker testified that although he had worked at
    Millsboro “off and on” before, he did not want to go there because the set-up (an enclosed garage
    with no air conditioning) exacerbated his health conditions. 23 Honaker testified that he had
    discussed his reasons for not wanting to go to Millsboro with his employer at several points in
    the past. 24
    ii. Supervisor’s Testimony
    Honaker’s supervisor testified that when she told Honaker to go to Millsboro, he
    specifically told her “if I go down to Millsboro I am going home.” 25 The supervisor said that she
    replied, “well, I need you to go to Millsboro. So, in other words, I guess you’re going home,”
    and Honaker left. 26 The parties later spoke by phone. The supervisor testified that she asked
    Honaker whether he had resigned his job by refusing to go to Millsboro, and that Honaker said
    17
    Record at 27.
    18
    Record at 27.
    19
    Record at 27.
    20
    Record at 27.
    21
    Record at 27.
    22
    Record at 27.
    23
    Record at 28.
    24
    Record at 26, 28.
    25
    Record at 30.
    26
    Record at 30.
    4
    no and that he would be at work on the following Wednesday. 27 The supervisor says she then
    asked whether Honaker would go to Millsboro on Wednesday if she directed him to do so, and
    he replied that he would refuse to go. 28 The supervisor testified that Honaker told her that he did
    not like going to Millsboro because “all I do is clean cars” there. 29 The supervisor said that she
    told Honaker that cleaning cars is his job and therefore he is telling her than he cannot do his
    job. 30 The supervisor testified that she then told Honaker that if he could not do his job “at this
    point it’s best if we part ways.” 31 She testified that Honaker then said, “well if you’re going to
    fire me then go ahead and fire me,” to which she responded, “fine I’ll have HR send you your
    paperwork.” 32 Enterprise entered a copy of its policy on insubordination termination as an
    exhibit, and Honaker did not object. 33 Honaker’s supervisor testified that Honaker had received
    and signed a copy of the policy, but Honaker denied ever receiving a copy. 34
    Upon additional questioning from Honaker, the supervisor gave a slightly different
    account of her phone exchange with Honaker. She confirmed that when she asked him whether
    he would refuse to go to Millsboro in the future, he said “cross the bridge when we get to it.” 35
    The supervisor said that she then told Honaker that she could not take this risk in running a
    business, which prompted Honaker to ask if he was fired, and the supervisor told him yes. 36
    27
    Record at 30.
    28
    Record at 30.
    29
    Record at 30.
    30
    Record at 30.
    31
    Record at 30.
    32
    Record at 30.
    33
    Record at 33-34.
    34
    Record at 34.
    35
    Record at 36.
    36
    Record at 36.
    5
    iii. Appeals Referee’s Determination
    The Appeals Referee determined that based on the hearing testimony, Honaker was in
    fact terminated and did not voluntarily resign. 37 However, the Appeals Referee determined that
    Honaker was still ineligible for unemployment benefits because he was terminated with cause. 38
    The Appeals Referee found that Enterprise had established just cause by a preponderance of the
    evidence, where just cause is constituted by “a willful or wanton act either in violation of the
    employer’s interests, the employee’s duties, or the employee’s expected standard of conduct.” 39
    The Appeals Referee found Honaker’s conduct “willful or wanton” because “he was recklessly
    indifferent to the consequences to his employment.” 40 The Appeals Referee explained that “[b]y
    refusing to obey his supervisor, [Honaker] was acting against Employer’s interest and against his
    expected standard of conduct.” 41 The decision of the Appeals Referee stated that under 
    19 Del. C
    . §3318, any interested party has the right to appeal to the UIAB “within 10 days after the date
    of notification or mailing of such decision.” 42 The Appeals Referee certified that a copy of the
    decision was mailed to Honaker on October 17, 2014. 43
    B. Appeal to the Unemployment Insurance Appeal Board
    Honaker appealed the decision of the Appeals Referee to the UIAB in a letter postmarked
    November 10, 2014. 44 Honaker acknowledged that his appeal was tardy but asked that the
    UIAB take into consideration that he was hospitalized and in rehab for knee surgery from
    37
    Record at 46.
    38
    Record at 46 (citing 
    19 Del. C
    . §3314(2)).
    39
    Record at 47 (citing Majaya v. Sojourner’s Place, 
    2003 WL 21350542
    , *4 (Del. Super. Ct. June 6, 2003)).
    40
    Record at 47. The Appeals Referee cites the standard for “willful or wanton” conduct as requiring a showing that
    “one was conscious of his conduct or recklessly indifferent [to] its consequences.” Record at 47 (citing Coleman v.
    Department of Labor, 
    288 A.2d 285
    (Del. Super. Ct. 1972)).
    41
    Record at 47.
    42
    Record at 44.
    43
    Record at 48.
    44
    Record at 53.
    6
    October 21, 2014 to November 6, 2015. 45 The UIAB declined to accept the untimely appeal, on
    the grounds that the ten day appeal window is jurisdictional and can only be overridden under
    “severe circumstances.” 46 The UIAB found no such severe circumstances in the instant case
    where notice was mailed to Appellant’s address of record and was not returned and the first page
    of the Appeals Referee’s decision clearly displayed a notice of the right of appeal, instructions on
    how to appeal, and the following notice: “Last Day to File Appeal: 10/27/2014.” 47 The UIAB
    found no evidence of administrative error that prevented Honaker from receiving notice or filing
    a timely appeal, and concluded that Honaker had been given notice and opportunity to be heard
    sufficient to satisfy the requirements of due process. 48
    C. Appeal to Superior Court
    Honaker filed a timely appeal of the UIAB decision to Superior Court. 49 In his opening
    brief, Honaker contends that the UIAB should have excused his tardiness because he was in the
    hospital and then in rehab after surgery. 50 Honaker alleges that the UIAB engaged in “health
    discrimination” in not hearing his appeal, which he says was late due to his hospitalization.51
    Regarding the merits of the Appeals Referee’s decision, Honaker argues that his dismissal from
    Enterprise was not justified. Honaker argues that he was “an outstanding employee,” according
    to “many reviews,” until he began having health problems. 52 Honaker says that he was
    diagnosed with bladder cancer in July 2013. 53 Honaker cites a November 1, 2013 performance
    45
    Record at 51.
    46
    Record at 55.
    47
    Record at 55.
    48
    Record at 55.
    49
    Record at 60.
    50
    Opening Brief, Docket Item 5, at *2.
    51
    Opening Brief, Docket Item 5, at *2.
    52
    Opening Brief, Docket Item 5, at *2.
    53
    Opening Brief, Docket Item 5, at *2.
    7
    review in which his employer acknowledged his “several health issues,” but still found that
    Honaker was performing well. 54 Honaker subsequently took medical leave from Enterprise
    while he was undergoing chemotherapy; he returned to work around the end of March or
    beginning of April 2014. 55 Honaker alleges that “attitudes changed drastically towards him”
    when he returned to work after his medical leave. 56
    Honaker also suffers from chronic obstructive pulmonary disorder (“COPD”). Honaker
    says that prior to the July 17, 2014 incident that resulted in his termination, he had been sent to
    the Millsboro location several times. 57 Honaker says that while working at Millsboro, he found
    that the enclosed conditions with restricted air flow exacerbated his COPD. 58 Honaker alleges
    that he told management “on numerous occasions” of the problems that working at Millsboro
    caused for his health. 59 Further, Honaker maintains that he was hired to work at the Rehoboth
    site and that there was nothing in his job description requiring him to work at sister Enterprise
    sites. 60
    Concerning the July 17, 2014 incident, Honaker maintains he was targeted by his
    supervisor who insisted that Honaker go to Millsboro despite knowing of Honaker’s medical
    condition and despite another employee’s having volunteered to take Honaker’s place. 61
    Honaker suggests that the supervisor’s refusal to send the other employee was unreasonable
    because he was the very same employee that the supervisor would have sent to Millsboro had
    Honaker not been there that day. 62 Honaker alleges that Enterprise’s firing him on the basis of
    54
    Opening Brief, Docket Item 5, at *2.
    55
    Opening Brief, Docket Item 5, at *2.
    56
    Opening Brief, Docket Item 5, at *2.
    57
    Opening Brief, Docket Item 5, at *3.
    58
    Opening Brief, Docket Item 5, at *3.
    59
    Opening Brief, Docket Item 5, at *3.
    60
    Opening Brief, Docket Item 5, at *3.
    61
    Opening Brief, Docket Item 5, at *3.
    62
    Opening Brief, Docket Item 5, at *3.
    8
    this incident alone was unreasonable and discriminatory. Honaker says that he was an excellent
    employee with no prior write-ups or other incidents. 63 Honaker alleges that the decline in his
    health lead his employer to target him because he was “viewed as a health liability.” 64 He argues
    that he was discriminated against due to his health condition, which is a disability, and that his
    employer “harassed” him by continually insisting on sending him to work in conditions that the
    employer knew put Honaker’s health at risk. 65 Honaker claims that his refusal to go to Millsboro
    was not unjustified insubordination, but rather him “assert[ing] his rights.” 66
    III. LEGAL STANDARD
    This Court’s appellate review of a UIAB decision is limited. Provided that the Board’s
    findings and conclusions are “free from legal error and supported by substantial evidence in the
    record,” the Board’s decision must stand even if the Court would have decided otherwise. 67
    Substantial evidence is “such relevant evidence such as a reasonable mind might accept as
    adequate to support a conclusion.” 68 “A discretionary decision of the Board will be upheld
    absent an abuse of discretion.” 69 Abuse of discretion occurs when the Board “acts arbitrarily or
    capriciously” 70 or “exceeds the bounds of reason.” 71 In deciding the appeal, the Superior Court
    63
    Opening Brief, Docket Item 5, at *3.
    64
    Opening Brief, Docket Item 5, at *4.
    65
    Opening Brief, Docket Item 5, at *4.
    66
    Opening Brief, Docket Item 5, at *4.
    67
    Straley v. Advanced Staffing, 
    2009 WL 1228572
    , *2 (Del. Super. Ct. Apr. 30, 2009) (citing PAL of Wilmington v.
    Graham, 
    2008 WL 258986
    , at *3 (Del. Super. Ct. June 18, 2008)).
    68
    
    Id. (quoting Anchor
    Motor Freight v. Ciabottoni, 
    716 A.2d 154
    , 156 (Del .1998)).
    69
    
    Id. (citing Funk
    v. Unemployment Ins. Appeal Bd., 
    591 A.2d 222
    , 225 (Del.1991)).
    70
    
    Id. (quoting Kreshtool
    v. Delmarva Power & Light, 
    310 A.2d 649
    , 652 (Del. Super. Ct. 1973)).
    71
    
    Id. (quoting Nardi
    v. Lewis, 
    2000 WL 303147
    , at *2 (Del.Super.Jan.26, 2000)
    9
    is limited to the record before the Board at the time the Board made its decision; the Court may
    not consider additional documentation. 72
    IV. ANALYSIS
    Under 
    19 Del. C
    . §3318(c), the decision of an appeals referee “shall be deemed to be
    final unless with 10 days after the date of notification or mailing of such decision further appeal
    in initiated pursuant to §3320 of this Title.” When notification is sent by mail, the ten-day period
    begins to run on the date of mailing unless the notification fails to reach the claimant due to a
    mistake by employees of the Department of Labor. 73 However, the Board has discretion under
    
    19 Del. C
    . §3320 to consider a case sua sponte, despite the defects of the claimant’s appeal,
    under rare, severe circumstances where the interests of justice would not be served unless the
    Board heard the case. 74
    In Funk, the claimant filed his appeal to the UIAB five days late. 75 The decision of the
    appeals referee was sent by mail and was correctly addressed to the claimant at his home
    address. However, due to a mistake by the postal service, the decision was delivered to the
    claimant’s parents’ home, which was located on the same street. 76 The claimant said he did not
    receive the decision until four days after the appeal deadline, and he filed his belated appeal the
    very next day. 77 The claimant said that this was not the first time that his mail had mistakenly
    beem delivered to his parents’ home, and he did not know how long the decision sat at his
    72
    Tibbits v. UPS, 
    2012 WL 6849444
    , *1 (Del. Super. Ct. Oct. 31, 2012) (“On appeal, the Court does not receive
    additional evidence nor does it make independent factual findings. Instead, the standard for review is simply
    whether the findings and conclusions of the Board are supported by substantial evidence and free of legal error. As
    such, the Court's review is limited to the record created before the Board and the findings contained in the Board's
    decision”).
    73
    
    Funk, 591 A.2d at 224
    .
    74
    
    Id. at 225.
    75
    
    Id. at 224.
    76
    
    Id. 77 Id.
    10
    parents’ home before he received it. 78 The UIAB declined to hear the appeal on the merits
    because it was untimely. 79
    On appeal, the court upheld the decision of the UIAB, and the Supreme Court affirmed.
    While the Supreme Court acknowledged the ability of the UIAB to act sua sponte to consider a
    case outside the designated period of appeal in limited cases so as to prevent injustice, the Court
    did not find this necessary under the circumstances where the delay in receipt of the decision was
    not due to any error on the part of the Department of Labor. 80 The Court reasoned that the
    claimant had “not established that he was free from fault in his failure to receive notice of the
    referee’s decision within the ten-day appeal period” as the claimant had admitted that his mail
    was sometimes misdelivered to his parents’ home. 81 The Court reasoned that it is reasonable to
    expect that a claimant who is awaiting an important decision by mail and is aware of this
    ongoing delivery problem to check with his parents regularly. 82 Further, the Court pointed out
    that there was no evidence in the record that the claimant ever complained to the postal service
    or attempted to have this problem remedied. 83
    In Wilson v. Masten Lumber, the court reached a similar decision. 84 The claimant in
    Wilson filed an untimely appeal of the Claims Deputy’s decision to the Appeals Referee. 85 The
    Appeals Referee refused to hear the appeal on the grounds that it was untimely. 86 The Appeals
    Referee noted that there was no evidence that there had been any error by the Department of
    78
    
    Id. 79 Funk,
    591 A.2d at 223.
    80
    
    Id. at 225.
    81
    
    Id. at 226.
    82
    
    Id. 83 Id.
    84
    Wilson v
    . Masten Lumber, 
    1993 WL 590326
    (Del. Super. Ct. Dec. 21, 1993).
    85
    
    Id. at *1.
    86
    
    Id. 11 Labor
    in mailing the decision to the claimant. 87 The claimant appealed to the UIAB, arguing that
    his appeal was late because he never received that Claims Deputy’s determination in the mail.88
    The UIAB denied the appeal. 89 The Superior Court affirmed the UIAB’s denial, citing the rule
    established in Funk that the claimant’s alleged failure to receive notice does not alter the
    statutory appeals period unless the mailing fails to reach the claimant due to an error by the
    Department of Labor. 90
    Specifically concerning hospitalization, Delaware courts have consistently declined to
    find that the Board abused its discretion in denying a late appeal when the claimant’s reason was
    hospitalization. In Bruner v. UIAB, the Claims Deputy’s decision was mailed on June 25, 2008,
    and the claimant was given a July 5 deadline to appeal. 91 The claimant did not mail his appeal to
    the Appeals Referee until August 27, 2008. 92 The claimant argued that his tardiness should be
    excused because he was assaulted on June 22, 2008 and subsequently hospitalized until July 4,
    2008. 93 After being released from the hospital, the claimant lived with his parents while
    recovering, not returning to his home address until July 15. 94 The claimant contended that he did
    not see the notice until he returned home on July 15. 95 The Appeals Referee denied the appeal
    on the grounds of untimeliness, and the denial was affirmed by the UIAB. 96 The Appeals
    Referee “noted that [the claimant’s] injury was not a proper mitigating circumstance to allow any
    waiver of the timeliness requirements,” and that “despite his injury, [the claimant] returned home
    87
    
    Id. at *2.
    88
    
    Id. 89 Id.
    90
    Wilson, 
    1993 WL 590326
    at *2.
    91
    Bruner v. UIAB, 
    2009 WL 5177164
    , *1 (Del. Super. Ct. Nov. 2, 2009).
    92
    
    Id. 93 Id.
    94
    Id.
    95
    
    Id. at *2.
    96
    
    Id. 12 for
    a ‘substantial period of time’ before finally mailing his appeal.” 97 The Superior Court found
    that the decision of the UIAB in affirming the Appeals Referee’s denial on these grounds was
    reasonable and that the circumstances did not require the Board to override the Appeals
    Referee’s decision “in the interests of justice.” 98
    In Myers v. Brandywine Body Shop, the claimant was three days late in appealing the
    Appeals Referee’s decision to the UIAB. 99 The claimant argued that his tardiness should be
    excused due to a series of unfortunate personal events: His sister had died a few days before the
    Appeals Referee’s decision was mailed; his father had been hospitalized; the claimant himself
    had been hospitalized; and his two cats and his dog had died. 100 The claimant attached his
    sister’s obituary and a receipt for the cremation of one of his cats to the UIAB appeal. 101 The
    UIAB reviewed the file and denied the appeal, and the claimant appealed to Superior Court.102
    The court held that the UIAB did not abuse its discretion; the UIAB found, and the claimant did
    not rebut, that the untimely appeal was not the result of a Department of Labor error. 103 The
    court explained that the list of deaths and illnesses, while unfortunate, were not such as would
    require review “in the interests of justice.” 104 Further, the court noted that the claimant did not
    provide the UIAB with the dates of his and his father’s alleged hospital stays or any supporting
    evidence of these hospital stays. 105
    Funk and Wilson make clear that administrative error by the Department of Labor, if
    demonstrated by the claimant, would be a reason to accept an untimely unemployment insurance
    97
    Bruner, 
    2009 WL 5177164
    at *2.
    98
    
    Id. 99 Myers
    v. Brandywine Body Shop, 
    2009 WL 2714079
    , *1 (Del. Super. Ct. Aug. 26, 2009).
    100
    
    Id. 101 Id.
    102
    
    Id. 103 Id.
    at *2
    104
    
    Id. 105 Myers,
    2009 WL 2714079 
    at *2.
    13
    appeal. 106 However, Delaware courts have routinely declined to find that untimely appeals due
    to illness must be heard. 107
    Like the claimant in Bruner, Honaker argues that his appeal was late because he was in
    the hospital. Honaker did not go into the hospital until the fourth day after the decision was
    mailed. There is nothing in the record that indicates whether Honaker received the decision
    before he entered the hospital. But even if he did not receive it, like the claimant in Bruner, the
    UIAB is within its authority to dismiss the appeal as untimely. Further, unlike in Bruner where
    the hospitalization was the result of an assault, Honaker went into the hospital for knee surgery,
    which Honaker has not alleged was an emergency. 108
    The length of the claimant’s delay in filing the appeal is also not grounds for this Court to
    reverse the decision of the UIAB. The claimant in Myers, like Honaker, was only a few days late
    appealing the Appeals Referee’s decision to the UIAB. The claimant in Myers, like Honaker,
    told the Board that his appeal was late due in part to his own hospitalization. However, unlike
    Honaker, the claimant in Myers cited several additional traumatic events, including the death of
    his sister, his father’s hospitalization, and the deaths of three pets; and he provided
    documentation of two of these events (his sister’s death and the cremation of one of his pets) to
    106
    See 
    Funk, 591 A.2d at 225
    ; Wilson, 
    1993 WL 590326
    , *2.
    107
    See Bruner, 
    2009 WL 5177164
    ; Myers, 
    2009 WL 2714079
    .
    108
    Honaker did not submit any supporting documentation concerning his hospitalization to the UIAB. Honaker has
    attached documents to his opening brief in the instant appeal supporting his hospitalization and subsequent stay in a
    rehabilitation facility for the knee surgery performed on October 20, 2014. (In his UIAB appeal, Honaker
    mistakenly says the date of hospitalization was October 21, 2014.) The submitted documents suggest that the knee
    surgery was due to a suspected infection in the knee but do not demonstrate that the surgery was an emergency.
    Further, even if the recently submitted documents did show that it was an emergency, this Court could probably not
    take that into consideration as this evidence was not before the UIAB. See Tibbits, 
    2012 WL 6849444
    at *1
    (holding that the court’s appeal is limited to the record before the Board).
    14
    the Board. The Myers court still found that “the interests of justice” did not require the UIAB to
    set aside the claimant’s tardiness and grant review. 109
    V. CONCLUSION
    Mindful of the extremely deferential standard under which the Superior Court reviews
    decisions of the UIAB, the Court AFFIRMS the Board’s decision. The delay was not the
    product of any error by the Department of Labor. Nor were Honaker’s circumstances, while
    unfortunate, more extreme than those in Bruner or Myers such that Honaker’s case would require
    a different result. The Board did not abuse its discretion in declining to hear Honaker’s appeal.
    IT IS SO ORDERED.
    _______/s/_______________
    M. JANE BRADY
    Superior Court Judge
    109
    Myers, 
    2009 WL 2714079
    at *2.
    15
    

Document Info

Docket Number: 14A-12-003

Judges: Brady

Filed Date: 8/19/2015

Precedential Status: Precedential

Modified Date: 8/24/2015