FOR PUBLICATION

ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEES:

MICHAEL D. HEAD                         GREGORY F. ZOELLER
Katz & Korin, P.C.                      Attorney General of Indiana
Indianapolis, Indiana
                                        KRISTIN GARN
                                        Deputy Attorney General
                                        Indianapolis, Indiana

                                                               FEB 14 2014, 9:53 a.m.

                             IN THE
                   COURT OF APPEALS OF INDIANA

BALDEV R. SAINI,                        )
                                        )
      Appellant,                        )
                                        )
             vs.                        )        No. 93A02-1308-EX-723
                                        )
REVIEW BOARD OF THE INDIANA             )
DEPARTMENT OF WORKFORCE                 )
DEVELOPMENT and INTEGRITY STAFFING      )
SOLUTIONS I,                            )
                                        )
      Appellees.                        )


    APPEAL FROM THE REVIEW BOARD OF THE DEPARMENT OF WORKFORCE
                             DEVELOPMENT
                         Steven F. Bier, Chairperson
                            Cause No. 13-R-2558



                             February 14, 2014

                        OPINION - FOR PUBLICATION

FRIEDLANDER, Judge
       Baldev R. Saini applied for unemployment benefits after voluntarily terminating his

employment with Integrity Staffing Solutions (Integrity). A claims deputy in the local office

of the Indiana Department of Workforce Development determined that Saini voluntarily left

his employment for good cause and therefore was eligible for unemployment benefits.

Integrity appealed the deputy’s decision to the Unemployment Insurance Appeals Division.

Following a telephonic hearing before an administrative law judge (ALJ), the ALJ reversed

the determination of eligibility upon the conclusion that Saini did not voluntarily leave his

employment with Integrity for good cause in connection with the work. The ALJ’s decision

was appealed to the Review Board of the Indiana Department of Workforce Development

(the Review Board), which affirmed the ALJ’s decision. Saini appeals the Review Board’s

determination, presenting the following restated issues for review:

       1.     Did the Review Board err in affirming the ALJ’s decision without
              conducting a hearing to determine whether Saini received adequate
              notice of the telephonic hearing?

       2.     Was Saini denied due process in that he was not given an opportunity to
              appeal billing notices sent to him advising him that he had been
              overpaid unemployment compensation for which he must provide
              reimbursement?

       We affirm.

       The brief underlying facts, as found by the ALJ and adopted by the Review Board, are

as follows:

       Employer is a temporary staffing agency. Claimant worked for Employer’s
       client, Amazon.com, on April 10, 2013. Claimant was hired to work as a
       Warehouse Associate earning $11.50 per hour. On April 10, 2013, Claimant
       called Employer’s resignation phone line and resigned from the position for

                                             2
        family problems. Therefore, Claimant voluntarily left employment on April
        10, 2013. Claimant did not participate in the hearing.

Appellant’s Appendix at 7.

        The critical facts, however, pertain to the question of whether Saini received notice of

the telephonic hearing before the ALJ. Those facts are that Integrity appealed a claims

deputy’s determination in Saini’s favor. Integrity’s appeal was set for a telephonic hearing

before an ALJ on June 27, 2013. A Notice of Hearing form was completed and mailed to

Saini at the address for him on file with the Department of Workforce Development. On this

form, Saini was instructed to provide a telephone number on an enclosed form (the

Acknowledgment Sheet) to enable him to participate in the telephonic hearing. Saini failed

to provide a telephone number and subsequently did not participate in the hearing. The

hearing was held on June 27, after which the ALJ reversed, explaining:

        The evidence shows that [Saini] voluntarily left employment with this
        Employer, making [Saini] the party with the burden of proof. [Saini] did not
        appear at the hearing to present evidence. As a result, there is no substantial
        evidence of record from the party with the burden of proof to show the
        separation was for good cause in connection with the work.

Id. at 8.

        Also on June 27, 2013, the Department of Workforce Development issued a Notice of

Potential Overpayment of $2730 in unemployment benefits to Saini. The notice indicated

that the potential overpayment covered the benefit weeks from April 13, 2013 through June

1, 2013. The notice stated, “This is a notice, not a bill, and cannot be appealed.” Id. at 14.

He received similar notices on July 8 and 10. The July 8 notice indicated that Saini had been

overpaid by $7410 for the benefit weeks spanning December 1, 2012 through April 6, 2013.

                                               3
The July 10 notice indicated he had been overpaid by $696, pertaining to the benefit weeks

June 8 and 15, 2013. All of the notices indicated that the reason for potential overpayment

was: “A DENY DECISION CAUSED THE OVERPAYMENT. HIGHER LEVEL APPEAL

REVERSAL DECISION.” Id. at 14-16.

       Saini appealed the ALJ’s decision to the Review Board.               In a cover letter

accompanying his appeal, Saini indicated he had not received paperwork in the mail

regarding the appeal hearing before the ALJ. Instead, he claimed, he received only a letter

informing him that he “might be getting a phone call” at 8:00 a.m. on June 27. Id. at 10. On

July 11, Saini sent an email to the Review Board further explaining the underlying facts. In

that email, Saini stated:

       I Baldev Raj Saini want to give you more information about this CASE.
       Reason for my appeal is that when i to the job with INTEGRITY STAFFING I
       was told that my job will pay $12.50 an hour and it’s full-time job. But when i
       got to work i found out that it’s part time job and my payee is 11.50 per hour.
       So that very second i spoke to my supervisor about this issue he said if i
       worked nights at the pay is 12.50 But it will still be a part time job. I told him
       that i was told something different By INTEGRITY STAFFING. He said i
       need to take this up with INTEGRITY STAFFING so i spoke to there service
       Representative told him what was going on i told him that if my pay is gonna
       be 11.50 an hour and a part time job this is not going to work. He asked me to
       finish my one day work and think about it for a while. So i told him i will stay
       for today. I was told by WORK ONE STAFF that i have to take a job that
       pays least 80 percent compare to my last pay rate on my last job i was earning
       $18.10 per hour so i have to take the job that pays $14.48 cents per hour BUT i
       was willing to work for $12.50 an hour and a full time job. IF i knew from the
       begging that it’s not a full job and the pay is 11.50 an hour i would have said
       no right there because my weekly unemployment check was close to 400.00
       dollars. I could have just kept looking for a job that pays more than11.50 an
       hour. Only reason a chose to work with INTEGRITY STAFFING because
       they told me it’s full time job and its 12.50 an hour i have never worked with
       any staffing agency in my life you can check my work history i know
       understood that when you work with any staffing agency it’s allways a part

                                               4
        time job. It’s honest mistake on my and since I have never work with staffing
        agency i had no clue about how things work.

Id. at 12 (transcribed verbatim as written).

        On July 25, 2013, the Review Board affirmed the decision of the ALJ, adopting and

incorporating by reference the ALJ’s findings of fact and conclusions of law. The Review

Board further indicated that it did not admit, nor by inference consider, the foregoing email.

Additionally, the Review Board stated in its decision:

        On appeal, the Claimant alleged that he received notice of the Administrative
        Law Judge hearing but did not receive an Acknowledgment Sheet to submit a
        telephone number for hearing. All hearing notices mailed by the Appellate
        Division include the following enclosures: the U.I. Appeals Hearing
        Instructions Sheet, an Acknowledgment Sheet, and a self-addressed envelope.
        If the Claimant received notice of the hearing, he also received the enclosures.
         However, even if the Claimant did not receive an Acknowledgment Sheet as
        alleged, the hearing notice and hearing instructions inform the parties that they
        must provide a telephone number in order to participate in the hearing.
        Because the Claimant received the hearing notice, the Claimant knew – or
        should have known – that he needed to submit a telephone number in order to
        participate in the hearing. The Administrative Law Judge did not contact the
        Claimant for the hearing because the Claimant did not submit a telephone
        number to participate.

Id. at 2.

                                               1.

        Saini challenges a decision of the Review Board. The Review Board reviews ALJ

decisions for errors of fact, law, or procedure based on the record before the ALJ. Ind. Code

Ann.§ 22–4–17–5(e) (West, Westlaw current through 2013 First Regular Sess. and First

Regular Technical Sess.). The Review Board may “affirm, modify, set aside, remand, or

reverse the findings, conclusions, or orders of an administrative law judge.” Id. Under


                                               5
Indiana’s Unemployment Compensation Act (the Act), “[a]ny decision of the review board

shall be conclusive and binding as to all questions of fact.” I.C. § 22–4–17–12(a) (West,

Westlaw current through 2013 First Regular Session and First Regular Technical Session).

Review Board decisions may, however, be challenged as contrary to law, in which case a

court on review is limited to a two-part inquiry into: (1) the sufficiency of the facts found to

sustain the decision; and (2) the sufficiency of the evidence to sustain the findings of facts.

I.C. § 22–4–17–12(f).       Under this standard, courts are called upon to review (1)

determinations of specific or “basic” underlying facts, (2) conclusions or inferences from

those facts, sometimes called “ultimate facts,” and (3) conclusions thereon. McClain v.

Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind. 1998).

       The Review Board’s findings of basic fact are subject to a “substantial evidence”

standard of review. Id. In this analysis the appellate court neither reweighs the evidence nor

assesses the credibility of witnesses and considers only the evidence most favorable to the

Review Board’s findings. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693

N.E.2d 1314. The Review Board’s conclusions as to ultimate facts involve an inference or

deduction based on the findings of basic fact. Id. As such, they are typically reviewed to

ensure that the Review Board’s inference is “reasonable” or “reasonable in light of [the

Review Board’s] findings.” Id. at 1318. We are not bound by the Review Board’s

conclusions of law, though “[a]n interpretation of a statute by an administrative agency

charged with the duty of enforcing the statute is entitled to great weight, unless this

interpretation would be inconsistent with the statute itself.” Chrysler Grp., LLC v. Review


                                               6
Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118 (Ind. 2012).

                                              2.

       Saini’s first allegation of error is that the Review Board erred in affirming the ALJ’s

decision without conducting a hearing to determine whether he received adequate notice of

the telephonic hearing. According to Saini, this conclusion is compelled by Carter v. Review

Bd. of Ind. Dep’t of Emp’t & Training Servs., 526 N.E.2d 717 (Ind. Ct. App. 1988). In that

case, Carter appealed an unfavorable decision by a claims deputy on grounds that he never

received notice about an evidentiary hearing before an appeals referee, which he therefore

failed to attend. The Review Board affirmed the appeals referee’s decision, rejecting

Carter’s claim that he did not receive notice of the hearing.

       Upon appeal, this court reversed the Review Board’s determination. The court

determined that it was undisputed that notice was mailed to Carter, but it was not established

that he actually received it. Noting that where an administrative agency sends notice through

the regular course of mail, a presumption arises that the notice was received, the court

nevertheless held that the party against whom it operates must have an opportunity to rebut it:

“Carter has had no opportunity to present evidence on the issue of notice throughout this

litigation and this lack of opportunity to be heard constitutes a deprivation of due process in

the present case.” Id. at 719. The court remanded the matter to the Review Board with

instructions to conduct a hearing at which Carter could present evidence on the question of

whether he received notice of the hearing before the appeals referee.

       Carter is superficially similar to the present case in some respects, but there are


                                              7
differences. There was no evidence before the Review Board in Carter that Carter actually

received the information that was sent to him. He did not have an opportunity to present.

Among other things, we note that neither the notice sent to Carter nor that sent to his

employer was returned to the sender. The record in the present case, on the other hand, is not

entirely devoid of evidence that Saini received notice of the telephonic hearing before the

ALJ. In fact, as we will discuss more thoroughly below, Saini presented his evidence on that

question and that the Review Board entered a finding based upon that evidence. Therefore,

what remains is to determine whether the evidence supports the Review Board’s findings.

       The Indiana Employment Security Act (the Act), Ind. Code Ann. § 22-4-17-1 et seq

(West, Westlaw current through 2013 First Regular Sess. and First Regular Technical Sess.),

provides that where a claim for unemployment benefits is disputed, the parties are to be

afforded “a reasonable opportunity for fair hearing.” I.C. §22-4-17-3(West, Westlaw current

through 2013 First Regular Sess. and First Regular Technical Sess.). “[A] reasonable

opportunity for fair hearing” must include reasonable notice, which in turn requires the

receipt of actual, timely notice. Scott v. Review Bd. of Ind. Dep’t of Workforce Dev., 725

N.E.2d 993, 996 (Ind. Ct. App. 2000). Where, as here, an administrative agency sends notice

through the regular course of mail, a presumption arises that the notice was received. Scott v.

Review Bd. of Ind. Dep’t of Workforce Dev., 725 N.E.2d 993. The question in the present

case is, in view of this presumption, has Saini presented sufficient evidence to prove that

notice was not received?

       In Value World Inc. of Ind. v. Review Bd. of Ind. Dep’t of Workforce Dev., 927 N.E.2d


                                              8
945 (Ind. Ct. App. 2010), this court observed that a presumption of law is not evidence and

should not be weighed as if it has evidentiary value. Having said that, the court noted that

both parties in that dispute were saddled with the difficulty of proving a negative. See id. at

949 (“C.C and Workforce Development would face a similar difficulty if either was required

to disprove Value World’s claim that it did not receive notice. [The difficulty of proving a

negative] is likely one of two reasons justifying the presumption; the other being the

reliability of mail delivery”). This court went on to describe the proper approach when

confronted with this question:

       While the presumption of receipt is not conclusive, neither is the statement by
       an interested party of non-receipt. [] It is then for the trier of fact to determine
       from all the evidence and reasonable inferences to be drawn therefrom what
       occurred. The court, sitting as trier fact, concluded after hearing all the
       evidence in the case that the letter was received by Sebasty. We cannot say
       that the evidence leads solely to the opposite conclusion.

Id. Finally, the court noted that the Review Board errs when it treats this question as one of

law, versus one of fact. In cases where the Review Board treats the receipt of notice as a

question of law, then the matter must be remanded to the Review Board with instructions to

treat it as a question of fact. See, e.g.,KLR Inc. v. Ind. Unemployment Ins. Review Bd., 858

N.E.2d 115 (Ind. Ct. App. 2006). On the other hand, where the Review Board makes its

determination as a finding fact, we review that determination as a challenge to the sufficiency

of evidence. See, e.g., Value World Inc. of Ind. v. Review Bd. of Ind. Dep’t of Workforce

Dev., 927 N.E.2d 945.

       In the present case, Saini submitted a cover letter along with the other materials that

are required in an appeal to the Review Board. In that cover letter, Saini acknowledged

                                                9
receiving what clearly must have been the Notice of Hearing pertaining to the June 27, 2013

telephonic hearing.      Of course, Saini denies having received the accompanying

Acknowledgment Sheet, which was the means by which he was supposed to have provided

his phone number to the ALJ for purposes of participating in that telephonic hearing. As the

Review Board noted, however, even assuming that the Acknowledgment Sheet was not

included, the form that Saini acknowledged receiving advised him that he would “receive a

call from the Judge at the number you provided on the Acknowledgment Sheet[.]”

Appellant’s Appendix at 6. The form also informed Saini that, “[t]o participate in this

hearing, you MUST deliver the enclosed Acknowledgment Sheet to the Appeals office by

mail, fax, or in person.” Id. (emphasis in original). Finally, he was given a phone number to

call in order to contact the Appeals office if he had any questions.

       Considering this evidence, the Review Board concluded that, regardless of whether

Saini received the Acknowledgment Sheet, via the Notice of Hearing form that Saini

admitted having received, he knew or should have known that he was required to provide a

telephone number in order to secure his participation in the hearing. Thus, the Review Board

resolved this issue as a question of fact, and determined that Saini failed to sustain his burden

of proving that he did not receive adequate notification of the hearing. There was sufficient

evidence to support this decision.

       Moreover, we conclude that due process was satisfied because Saini was able to

present the relevant evidence on this question to the Review Board by means of the cover

letter sent with the notice of his appeal. We cannot imagine what evidence Saini could


                                               10
present at a hearing that would have any effect on the Review Board’s decision. Indeed,

Saini would have to present evidence that flatly contradicts the dispositive evidence he has

already offered, i.e., that he received the Notice of Hearing form. Therefore, it would serve

no purpose to remand this case for an evidentiary hearing on this matter when the outcome is

foreordained.

                                              3.

       Saini contends he was denied due process because he was not given an opportunity to

appeal billing notices sent to him advising him that the State had overpaid unemployment

compensation for which he must provide reimbursement. The Review Board correctly

responds that this determination is outside the scope of the Review Board’s decision, and

therefore not properly before this court. In any event, it appears that the error of which Saini

complains has been corrected, or soon will be. We note in this regard the following comment

in the Review Board’s brief:

       It appears that there was an administrative error in entering the ALJ’s decision
       in the Department’s database, which caused one of the overpayment notices …
       issued to Mr. Saini to be generated in error. Based upon a conversation the
       undersigned counsel for the Appellee had with a staff attorney for the Review
       Board on November 14, 2013, the Department is taking steps to correct that
       error, and Mr. Saini soon should receive notice from the Department that
       $7410 of the overpayment attributable to him has been eliminated.

Appellee’s Brief at 16 n.7.

       Judgment affirmed.

KIRSCH, J., and BAILEY, J., concur.




                                              11
