5.6.5 Untimely Appeals

Untimely appeals are a common problem. Clients may fail to update their postal or e-mail address, and their mail may not be delivered even if they do. However, don’t give up just because your client has missed a deadline—determine where the fault lies. The agency’s position will usually be that peremption applies and that the right to appeal is extinguished at the end of the time period for appeal. However, courts have recognized that a claimant may rebut the presumption that a decision was actually mailed on the date it was said to have been mailed or present evidence that a notice was misleading or that the agency committed fraud or was otherwise at fault.1  Your client’s online claim records might show e-mailed notices bounced back or that the LWC has used an address gone stale because your client was no longer filing for benefits. There is no statutory obligation for an claimant to update an address if no active claim is being pursued.

If you are representing a client, make sure that appeals are filed timely, or, for best results, do it yourself. Often multiple appeals need filing at the same time, leading to the possibility of confusion or omission. This often happens when a client had multiple employers in the base period or when a client is hit with overpayment notices. There are various ways to file an appeal, the best being any way you can confirm receipt and timeliness.

• 1See, e.g., Bailey v. Cajun Insulation, 453 So. 2d 237, 241 (La. 1984); Jones v. Whitfield, 529 So. 2d 885 (La. App. 4 Cir. 1988); Doescher v. Administrator, 353 So. 2d 388 (La. App. 4 Cir. 1977); see also Harding v. Raising Canes USA L.L.C., 10-320 (La. App. 5 Cir. 11/23/10), 55 So. 3d 837; Hughes v. La. Power & Light Co., 98-1007 (La. App. 5 Cir. 3/10/99), 735 So. 2d 44; cf. Duron v. Albertson’s LLC, 560 F.3d 288 (5th Cir. 2009) (presumption of mailing requires sufficient evidence of record that letter actually mailed).