When doing a late appeal hearing, the Examiner must complete the following steps.
1. Separate the late appeal from the substantive issue. Other than closing, the late appeal issue should be exhausted before reaching the substantive issue. This includes testimony from the Appellant, cross from the other parties (this could include claimant, employer and agency), testimony (if there is any) from other parties, and cross and re-direct involving any other party which testifies.
2. When the appellant testifies, the following facts must be developed.
(a) The date the appeal was due. This can be done through oral statements of the Examiner. For Example, saying something like “The Agency paperwork establishes that the appeal deadline was October 31, 2016…” All other information in this section should be developed through testimony from the appellant or documentation.
(b) The mode of the appeal. This should be either faxed, hand delivered or mailed.
(c) The date of the appeal. At this point, if not sooner, the appeal document should be entered into evidence. If it is a mailed appeal, the mailing envelope should be entered even if no postmark is on the envelope. Since the postmark is dispositive, the envelope should be entered even if there is not a postmark in order to establish that there is not a postmark to be relied on.
(d) The reason for the late appeal.
3. The Examiner must fully develop the reasons for the late appeal. If the claimant does not provide a reason or says “I don’t know,” ask the following questions where appropriate:
(a) Did you receive the hearing notice?
(b) When did you receive the hearing notice?
(c) Did you notice the appeal deadline date on the hearing notice?
4. As the Examiner, it is your duty to develop the late appeal issue fully. Make sure this is done properly.
5. After the appellant has testified give all parties a chance to cross and present evidence as you would with any other issue. When that is done, you can go to the substantive issue, and the parties can mention the late appeal issue in closing if they wish.
When writing a late appeal decision, the Examiner must include the following.
A. FINDINGS OF FACT
1. The appeal deadline date.
2. The mode the appeal was filed (letter, fax or in person).
3. The date the appeal was filed (if it was mailed, refer to the relevant COMAR regulation for how to handle the issue when the postmark is different from the date on the letter, or there is no postmark.
4. The reason for the late appeal. This should be developed completely, and all relevant dispositive reasons should be included in the facts.
5. If the Examiner is finding good cause for the late appeal, the facts on the substantive issue should also be in this section. If the Examiner is not finding good cause for the late appeal, only the late appeal facts should be included in this section.
B. CONCLUSIONS OF LAW
1. In addition the canned information, please include any on point precedents.
2. If the Examiner is not finding good cause for the late appeal, only the late appeal statutes, COMAR and precedent should be included in this section.
C. EVALUATION OF EVIDENCE
1. Should include the appeal deadline date, as well as the date and mode the appeal was filed.
2. Should include the reason for the late appeal. This must be developed fully. If there is a credibility dispute, the Examiner is required to indicate why he/she found one party more credible than the other.
3. Detailed analysis explaining why the appellant did or did not meet the legal standard on the late appeal issue.
4. If the Examiner is not finding good cause for the late appeal, only the late appeal analysis should be included in this section.
D. DECISION
1. If the late appeal is found to be without good cause, the substantive issue should not be broached in the decisions, and the Claims Examiner decision is unchanged.
2. If the late appeal is found to be with good cause, the merits of the substantive issue should be reached.