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Estiverne v. Unemployment Insurance Appeal Bd.

Superior Court of Delaware, Sussex

May 23, 2014

Wisly Estiverne
Unemployment Insurance Appeal Bd.,

Date Submitted: February 21, 2014

Wisly Estiverne, pro se

James T. Wakley, Esq. Thomas H. Ellis, Esq.

Dear Messrs. Estiverne, Wakley, and Ellis,

Before the Court is the appeal of Wisly Estiverne ("Estiverne") contesting the decision below rendered by the Unemployment Insurance Appeal Board (the "Board"). The Board's decision is AFFIRMED.


On May 3, 2013, a Claims Deputy/Agency Representative for the Delaware Department of Labor ("DOL"), Division of Unemployment Insurance (the "Division") determined that due to non-fraudulent actions, an overpayment of Estiverne's benefits had been established in the amount of $4, 814.00 for 19 weeks, beginning April 21, 2012 to December 29, 2013. This decision was memorialized on a Notice of Determination form, which was mailed to Estiverne on May 3rd. The form stated that the established findings of fact would become final on May 13, 2013 unless a written appeal was filed. Further, it specified that an appeal must be received or postmarked on or before the date indicated (May 13th).

On May 15, 2013, Estiverne requested in writing an appeal against his previous employer, Mountaire Farms ("Mountaire"), based on the Divis ion's May 3rd decision. Estiverne claimed that he had documentation regarding the benefits he had received, and that he believed the decision made against him was based on false pretenses and untrue allegations. Estiverne filed his appeal in person at DOL's office in Georgetown, DE on May 17, 2013.

On May 24, 2013, a DOL Claims Deputy/Agency Representative ("Claims Deputy") determined that the Division's May 3rd decision was final and binding due to Estiverne's failure to file a timely appeal. This decision, memorialized on a separate Notice of Determination form, was based on several findings of fact. First, the Division's May 3rd decision had been mailed to Estiverne's address of record at the time; and there was no evidence that the decision was returned by the post office. Further, as the May 3rd decision indicated, Estiverne had until May13th to file his appeal, after which time the decision would become final. Estiverne filed his appeal on May 17th; and therefore his appeal was considered late. The Claims Deputy informed Estiverne that a hearing would be held to address only the issue of the timeliness of his appeal. The Claims Deputy's decision was mailed to Estiverne on May 24, 2013.

On June 12, 2013, a hearing was held before a Division appeals referee solely on the issue of whether Estiverne's appeal of the Division's May 3rd decision was timely. The referee heard testimony from a DOL representative who laid out the relevant facts. Estiverne testified through an interpreter that the Division's May 3rd decision was delivered to his home on May 15th, two days after the appeal period closed and the decision became final.

In a written opinion, the referee found as matters of fact that Estiverne was issued the Division's decision concerning overpayment of benefits on May 3rd, that he received this decision at his address of record, that the form memorializing the decision specified the date by which Estiverne was required to appeal it, that Estiverne did not appeal it on or before that date, that he received the decision two days after its date for appeal, and that Estiverne personally filed his appeal two days later. The referee stated that a claimant of a Division determination has a statutorily-specified period of time to file an appeal, and that late appeals could not be accepted absent administrative error on the part of DOL. The referee stated that the Division's decision was properly mailed to Estiverne. Any subsequent error in the decision's not reaching Estiverne had to be borne by Estiverne, rather than DOL. Therefore, the referee found Estiverne's appeal untimely and affirmed the Division's decision, holding it to be final and binding.

Estiverne appealed the referee's decision to the Board. In its written opinion, the Board found no error in the determination reached by the referee, and adopted the referee's decision as its own. The Board denied application for further review, and affirmed the referee's decision. Estiverne's appeal to this Court followed.


When reviewing appeals from the Board, this Court examines only the record upon which the Board relied in making its decision.[1] This Court only determines whether substantial evidence supported the Board's decision, and whether the Board's decision lacked legal error.[2] The requisite degree of evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[3] Evaluating the evidence, deciding credibility issues, and determining factual questions are not ...

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