[69]*69OPINION
LANKFORD, Presiding Judge.
This is an appeal from an Arizona Department of Economic Security (“DES”) decision dismissing Cummins’ request for review of the Appeals Board’s decision because the request did not comply with Ariz.Rev.Stat. Ann. (“A.R.S.”) section 2S-672(F).
Cummins raises one issue on appeal. Did the Appeals Board err in dismissing Cummins’ request for review?
In November 1992, a Determination of Deputy held that Cummins was ineligible for Emergency Unemployment Compensation based on her prior claim for benefits in the year ending December 1991. Because of the Determination of Deputy, DES ultimately determined that Cummins had been overpaid benefits in the amount of $99. Cummins filed a request for reconsideration of the Determination of Deputy and the conclusion that she had been overpaid $99 with the Appeal Tribunal in November 1992. The Appeal Tribunal affirmed the Determination of Deputy in part.
In July 1993, Cummins appealed to the Appeals Board. The Appeals Board affirmed the decision of the Appeal Tribunal and informed Cummins that the final date for filing a request for review was August 16, 1993. In its instructions for filing a request for review, the Appeals Board notified Cummins that
a request for review must be filed in writing within 30 calendar days from the mailing date of the Appeals Board’s decision. A request for review is considered filed on the date it, is mailed ... to the Appeals Board ...
(Emphasis added).
FoEowing these instructions, Cummins mailed a request for review to the Appeals Board. The postmark on the request was stamped August 17. The Board held a hearing to determine whether the request had been timely filed. The Board found that Cummins had mailed the request for review on August 16 but that she did not deposit it in the maE slot until after 6:30 P.M., which was the last maE collection time. Therefore, because the request for review was not postmarked untE August 17, the board found that it was untimely and dismissed it.
We have jurisdiction to hear this appeal pursuant to A.R.S. section 41-1993(B). In Wallis v. Arizona Dep’t of Economic Sec., we held that even if the request for review was dismissed for untimeliness, so long as the claimant timely filed an appeal, this Court has jurisdiction to review the Appeals Board’s decision to dismiss the request for review. 126 Ariz. 582, 585, 617 P.2d 534, 537 (App.1980).
DES argues that the Board correctly decided that Cummins’ request for review was untimely and, therefore, properly dismissed the request. We wiE not disturb the Board’s findings of fact unless they are arbitrary, capricious or an abuse of discretion. Avila v. Arizona Dep’t of Economic Sec., 160 Ariz. 246, 248, 772 P.2d 600, 602 (App.1989). However, we are not bound by the Board’s legal conclusions and are free to determine whether the Board correctly interpreted the law. Id.
The statute governing requests for review, A.R.S. Section 23-672(F) states:
A party dissatisfied with the decision under subsection E of this section may file a request for review within thirty days from the date of the decision ... The timely filing of such a request for review is a prerequisite to any further appeal ...
We have broadly construed this statute in the past. See Hilde v. Arizona Dep’t of Economic Sec., 166 Ariz. 498, 499, 803 P.2d 909, 910 (App.1990). We have done so in Eght of the legislature’s knowledge that nearly aE benefit appEcants are unaided by coun-. sel and the legislative purpose of the Employment Security Act of Arizona, which “is to provide funds ... for the benefit of persons unemployed through no fault of their own.” Hilde, 166 Ariz. at 499, 803 P.2d at 910. In short, the act is “remedial legislation and should be given a Eberal interpretation to effectuate its purpose.” Maldonado v. [70]*70Arizona Dep’t of Economic Sec., 182 Ariz. 476, 478, 897 P.2d 1362, 1364 (App.1994).
This approach is also used to interpret DES procedural rules, which should not be interpreted to frustrate the purpose of the statute. Cf. Hilde v. Arizona Dep’t of Economic Sec., supra (procedural statute must be liberally interpreted to effectuate legislative purpose).
DES relies on the Arizona Administrative Code provision regarding the filing of a request for review, which provides:
A. Except as otherwise provided by statute or by Department regulation, any ... request ... submitted to the Department shall be considered received by and filed with the Department:
1. If transmitted via the United States Postal Service or its successor, on the date it is mailed as shown by the postmark ...
AAC. R6-3-1404(A)(l) (Emphasis added). DES argues that because Cummins’ request for review was postmarked August 17, it was untimely.
A.AC. R6-3-1404Q3) provides three grounds on which an untimely request for review can be held to have been timely filed: (1) delay due to a Department error or misinformation; (2) delay on the part of the United States Postal Service; or (3) change in the petitioner’s mailing address. Because Cummins did not change addresses, the third ground is inapplicable. As to the second ground, the Board found that there was insufficient evidence in the record to establish that the untimely submission of the request for review was due to delay or other action of the Post Office. The Board held that “the Claimant had not established any fact which would invoke the provisions of Arizona Administrative Code, Section R6-3-1404(B)
However, the Board made no finding whether the delay was due to a Department error or misinformation. In its instructions for filing a request for review, the Appeals Board notified Cummins that “[a] request for review is considered filed on the date it is mailed.” There was no explanation that the request for review must be postmarked within 30 days of the Board’s decision. Furthermore, the record does not indicate that Cummins received a copy of Arizona Administrative Code section R6-3-1404(A), explaining that a request for review is considered filed on either the date of the postmark or the date of receipt. The instructions merely require that the request be mailed within 30 days.
The ordinary meaning of “mail” is “to send by mail.” Webster’s Ninth New Collegiate Dictionary, 717 (1983). The dissent defines mail, in part, as “to turn over to the postal department for transmission.” See Webster’s New Universal Unabridged Dictionary, 1086 (1983). Cummins did so when she deposited her request in the mailbox. She then relinquished all control and left the document in the custody of the post office for delivery.
Had the instructions informed Cummins that the request must be postmarked within 30 days, we would agree that the filing was untimely. However, they did not.
Free access — add to your briefcase to read the full text and ask questions with AI
[69]*69OPINION
LANKFORD, Presiding Judge.
This is an appeal from an Arizona Department of Economic Security (“DES”) decision dismissing Cummins’ request for review of the Appeals Board’s decision because the request did not comply with Ariz.Rev.Stat. Ann. (“A.R.S.”) section 2S-672(F).
Cummins raises one issue on appeal. Did the Appeals Board err in dismissing Cummins’ request for review?
In November 1992, a Determination of Deputy held that Cummins was ineligible for Emergency Unemployment Compensation based on her prior claim for benefits in the year ending December 1991. Because of the Determination of Deputy, DES ultimately determined that Cummins had been overpaid benefits in the amount of $99. Cummins filed a request for reconsideration of the Determination of Deputy and the conclusion that she had been overpaid $99 with the Appeal Tribunal in November 1992. The Appeal Tribunal affirmed the Determination of Deputy in part.
In July 1993, Cummins appealed to the Appeals Board. The Appeals Board affirmed the decision of the Appeal Tribunal and informed Cummins that the final date for filing a request for review was August 16, 1993. In its instructions for filing a request for review, the Appeals Board notified Cummins that
a request for review must be filed in writing within 30 calendar days from the mailing date of the Appeals Board’s decision. A request for review is considered filed on the date it, is mailed ... to the Appeals Board ...
(Emphasis added).
FoEowing these instructions, Cummins mailed a request for review to the Appeals Board. The postmark on the request was stamped August 17. The Board held a hearing to determine whether the request had been timely filed. The Board found that Cummins had mailed the request for review on August 16 but that she did not deposit it in the maE slot until after 6:30 P.M., which was the last maE collection time. Therefore, because the request for review was not postmarked untE August 17, the board found that it was untimely and dismissed it.
We have jurisdiction to hear this appeal pursuant to A.R.S. section 41-1993(B). In Wallis v. Arizona Dep’t of Economic Sec., we held that even if the request for review was dismissed for untimeliness, so long as the claimant timely filed an appeal, this Court has jurisdiction to review the Appeals Board’s decision to dismiss the request for review. 126 Ariz. 582, 585, 617 P.2d 534, 537 (App.1980).
DES argues that the Board correctly decided that Cummins’ request for review was untimely and, therefore, properly dismissed the request. We wiE not disturb the Board’s findings of fact unless they are arbitrary, capricious or an abuse of discretion. Avila v. Arizona Dep’t of Economic Sec., 160 Ariz. 246, 248, 772 P.2d 600, 602 (App.1989). However, we are not bound by the Board’s legal conclusions and are free to determine whether the Board correctly interpreted the law. Id.
The statute governing requests for review, A.R.S. Section 23-672(F) states:
A party dissatisfied with the decision under subsection E of this section may file a request for review within thirty days from the date of the decision ... The timely filing of such a request for review is a prerequisite to any further appeal ...
We have broadly construed this statute in the past. See Hilde v. Arizona Dep’t of Economic Sec., 166 Ariz. 498, 499, 803 P.2d 909, 910 (App.1990). We have done so in Eght of the legislature’s knowledge that nearly aE benefit appEcants are unaided by coun-. sel and the legislative purpose of the Employment Security Act of Arizona, which “is to provide funds ... for the benefit of persons unemployed through no fault of their own.” Hilde, 166 Ariz. at 499, 803 P.2d at 910. In short, the act is “remedial legislation and should be given a Eberal interpretation to effectuate its purpose.” Maldonado v. [70]*70Arizona Dep’t of Economic Sec., 182 Ariz. 476, 478, 897 P.2d 1362, 1364 (App.1994).
This approach is also used to interpret DES procedural rules, which should not be interpreted to frustrate the purpose of the statute. Cf. Hilde v. Arizona Dep’t of Economic Sec., supra (procedural statute must be liberally interpreted to effectuate legislative purpose).
DES relies on the Arizona Administrative Code provision regarding the filing of a request for review, which provides:
A. Except as otherwise provided by statute or by Department regulation, any ... request ... submitted to the Department shall be considered received by and filed with the Department:
1. If transmitted via the United States Postal Service or its successor, on the date it is mailed as shown by the postmark ...
AAC. R6-3-1404(A)(l) (Emphasis added). DES argues that because Cummins’ request for review was postmarked August 17, it was untimely.
A.AC. R6-3-1404Q3) provides three grounds on which an untimely request for review can be held to have been timely filed: (1) delay due to a Department error or misinformation; (2) delay on the part of the United States Postal Service; or (3) change in the petitioner’s mailing address. Because Cummins did not change addresses, the third ground is inapplicable. As to the second ground, the Board found that there was insufficient evidence in the record to establish that the untimely submission of the request for review was due to delay or other action of the Post Office. The Board held that “the Claimant had not established any fact which would invoke the provisions of Arizona Administrative Code, Section R6-3-1404(B)
However, the Board made no finding whether the delay was due to a Department error or misinformation. In its instructions for filing a request for review, the Appeals Board notified Cummins that “[a] request for review is considered filed on the date it is mailed.” There was no explanation that the request for review must be postmarked within 30 days of the Board’s decision. Furthermore, the record does not indicate that Cummins received a copy of Arizona Administrative Code section R6-3-1404(A), explaining that a request for review is considered filed on either the date of the postmark or the date of receipt. The instructions merely require that the request be mailed within 30 days.
The ordinary meaning of “mail” is “to send by mail.” Webster’s Ninth New Collegiate Dictionary, 717 (1983). The dissent defines mail, in part, as “to turn over to the postal department for transmission.” See Webster’s New Universal Unabridged Dictionary, 1086 (1983). Cummins did so when she deposited her request in the mailbox. She then relinquished all control and left the document in the custody of the post office for delivery.
Had the instructions informed Cummins that the request must be postmarked within 30 days, we would agree that the filing was untimely. However, they did not. We believe that in view of the unexplained rule requiring a postmark, the department’s instructions are misleading to claimants.
To hold a claimant untrained in the law to the postmark regulation in light of the explicit instructions would merely frustrate the legislative policy to confer unemployment compensation. See generally Hilde, 166 Ariz. at 499, 803 P.2d at 910 (statutory requirement of request for review must be read liberally in light of legislative purpose to provide funds for the unemployed).
The dissent argues that our decision invites abuse from less scrupulous claimants. We disagree. The Board must, as it did here, make a finding of the credibility of a claimant’s contention that she mailed the request within 30 days. Absent an abuse of discretion, we must abide by that finding.
The Board found—and there is no dispute—that Cummins mailed the request for review on August 16 as she had testified. Cummins also testified without contradiction that she did so based on the instructions the department had provided. Accordingly, her request for review was timely filed under R6-3-1404(B). “Claims should be heard on their merits if the failure to comply with a deadline or attend a hearing is of the type which can be said to be excusable.” Maído[71]*71nado, 179 Ariz.Adv.Rep. at 27, 187 Ariz. at 476, 897 P.2d at 1862.
Accordingly, we hold that Cummins timely filed her request for review and remand to the Board of Appeals to decide the request for review on its merits.
TOCI, J., concurs.