 Pursuant to Ind.Appellate Rule 65(D), this                 Apr 30 2014, 10:30 am
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEES:

ROBERT A. HICKS                                     GREGORY F. ZOELLER
Macey Swanson and Allman                            Attorney General of Indiana
Indianapolis, Indiana
                                                    KYLE HUNTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

T.W.,                                               )
                                                    )
        Appellant-Petitioner,                       )
                                                    )
               vs.                                  )      No. 93A02-1310-EX-871
                                                    )
REVIEW BOARD OF THE INDIANA                         )
DEPARTMENT OF WORKFORCE                             )
DEVELOPMENT,                                        )
                                                    )
        Appellee-Respondent.                        )


                      APPEAL FROM THE INDIANA REVIEW BOARD
                               Steven F. Bier, Chairperson
                                  Cause No. 13-R-3432


                                          April 30, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       T.W. appeals from the dismissal of her appeal by the Review Board of the Indiana

Department of Workforce Development (Review Board), contending that the dismissal was

erroneous because her appeal was timely filed. Although we express no opinion as to

whether T.W.’s appeal was, in fact, timely filed, we conclude that the Review Board erred in

dismissing her appeal on that basis without holding an evidentiary hearing at which T.W.

would be allowed to present evidence on that question.

       We reverse.

       After T.W. was discharged from her employment she applied for unemployment

benefits and was granted benefits by the claims deputy, who also determined that T.W.’s

employer failed to timely provide separation information for T.W. in response to a request by

the Review Board. T.W.’s employer appealed the claims deputy’s determinations. T.W. did

not appear at the August 28, 2013 hearing held before an administrative law judge (ALJ).

The ALJ affirmed the claims deputy’s decision on the procedural issue, but reversed the

claims deputy’s decision that T.W. was entitled to unemployment benefits.

       On September 17, 2013, the president of the local union submitted by fax an appeal,

which T.W. signed, on T.W.’s behalf to the Review Board. Included in the materials was the

ALJ’s written decision which contained the following entry: “Mail Date: Thursday, August

29, 2013.” Appellant’s Appendix at 9. Also included was a photocopy of an envelope

displaying the return address of the Review Board, indicating that the contents of the

envelope were served by United States mail, displaying a bar code including the five-digit zip

code of the city where T.W. lives, and bearing a postmark date of September 9, 2013. The


                                              2
envelope lacks information identifying the recipient of the envelope. On September 18,

2013, the Review Board issued its notice of dismissal of T.W.’s appeal on the ground that it

was not timely filed, and consequently, did not reach the merits of T.W.’s appeal. The

Review Board’s decision stated the following:

                                NOTICE OF DISMISSAL
        An appeal by a claimant or employer from a decision of the Administrative
        Law Judge will be dismissed when the Administrative Law Judge’s decision is
        not appealed within the time specified by the Indiana Employment and
        Training Act.

        IC 22-4-17-3 states in pertinent part:
        The parties shall be duly notified of such decision and the reasons therefor,
        which shall be deemed to be the final decision of the Review Board, unless
        within fifteen (15) days after the date of notification or mailing of such
        decision, an appeal is taken by the Board or the Director or by any party
        adversely affected by such decision to the Review Board.

        IC 22-4-17-14 provides in pertinent part:
        [. . . .]
        (c) If a notice is served through the United States mail, three (3) days must be
        added to a period that commences upon service of that notice.
        (d) The filing of a document with the appellate division or review board is
        complete on the earliest of the following dates that apply to the filing:
        (1) The date on which the document is delivered to the appellate division or
        review board.
        (2) The date of the postmark on the envelope containing the document if the
        document is mailed to the appellate division or review board by the United
        States Postal Service.

        The Review Board finds that the appeal in the above entitled case was not filed
        within the time prescribed by the Indiana Employment and Training Act and,
        therefore, the attempted appeal is dismissed.

Id. at 2.

        On September 23, 2013, the local union president faxed a request to the Review Board

asking that it reconsider its decision to dismiss T.W.’s appeal on timeliness grounds. The

                                               3
local union president included with his request a copy of the same envelope that had been

submitted as part of T.W.’s appeal and the ALJ’s decision, noting on each that the date on the

envelope was eleven days later than the mail date included within the ALJ’s decision. The

Review Board did not respond to the request to reconsider its dismissal of T.W.’s appeal.

T.W. appeals from that dismissal.

        T.W. asks this court to reverse the Review Board’s dismissal of her appeal and

remand the matter for specific findings on the issue of the timeliness. In the alternative, she

asks this court for a decision on the merits about timeliness. The Review Board contends that

a remand is unnecessary, as specific findings are required only in the event that there are

contested issues. The Review Board asserts that since T.W. did not present an argument

about the timeliness of her appeal in her submitted appeal materials, there was no contested

issue and findings were not and are not required.1 Noting T.W.’s failure to request an

extension of time or to argue that her appeal should be filed for cause, the Review Board

claims that its dismissal should be affirmed. The Review Board’s position is unpersuasive

and not dispositive because T.W. argued the timeliness of her appeal upon its dismissal,

which was the first instance the issue was raised, in her request for reconsideration.

        In Reece v. Review Bd. of Emp’t Sec. Div., 360 N.E.2d 1262 (Ind. Ct. App. 1977),

when asked to review the dismissal of a claimant’s appeal from the initial denial of benefits

by a claims deputy, a panel of this court found the 1971 version of the applicable appeal


1 See
     Ratkovich v. Rev. Bd. of Indiana Dep’t. of Emp’t & Training Servs., 618 N.E.2d 44, 46-47 (Ind. Ct. App.
1993) (“The Review Board is required to make specific findings of all the facts relevant to the contested
issues.”).


                                                     4
limitation statute2 to be ambiguous, and reversed the dismissal of the claimant’s appeal,

remanding the matter for further proceedings. Construing the statutory language to provide

that the time limitation began to run upon the delivery of a determination letter rather than

upon the letter’s deposit in the mail, we observed that such a construction comported with the

humanitarian purposes of the Employment Security Act and avoided “harsh, unjust, or absurd

consequences.” Reece v. Review Bd. of Emp’t Sec. Div., 360 N.E.2d 1262, 1264-65 (Ind. Ct.

App. 1977).

        A majority of this court found the Reece decision controlled when construing the

applicable appeal limitation statute3 in our review of the Review Board’s dismissal of an

appeal from an ALJ’s decision in O’Donoghue v. Review Bd. of Ind. Emp’t Sec. Div., 406

N.E.2d 1267 (Ind. Ct. App. 1980). The version of the statute in effect at that time provided

that the decision of the ALJ would be deemed a final decision “unless within fifteen (15)

days after the date of notification or mailing of such decision, an appeal is taken . . . .”

O’Donoghue v. Review Bd. of Indiana Employment Sec. Div., 406 N.E.2d 1267, 1267 (Ind.

Ct. App. 1980). Following our decision in Reece, we held that the fifteen-day time limitation

began after notification of the decision. Id. at 1267-68. Although there was no evidence in

the record to establish when the determination was received by the claimant, the record

reflected that the appeal was filed sixteen days after the decision was mailed. Assuming for



2Ind. Code Ann. § 22-4-17-2(e) (West, Westlaw current through P.L. 29 of the 2nd Reg. Sess. of the 118th
General Assembly (2014) with effective dates through March 13, 2014).
3
 I.C. § 22-4-17-3 (West, Westlaw current through P.L. 29 of the 2nd Reg. Sess. of the 118th General Assembly
(2014) with effective dates through March 13, 2014)


                                                     5
the sake of argument that the determination was delivered to the claimant the day after it was

mailed, we held that the appeal was within the fifteen-day time limitation, and the dismissal

was erroneous.

       Although the statutory provision cited by the Review Board in its dismissal of T.W.’s

appeal is identical to the statutory language in O’Donoghue, the Review Board asserts that

the O’Donoghue holding is no longer applicable given the 1990 enactment of I.C. § 22-4-17-

14 (West, Westlaw current through P.L. 29 of the 2nd Reg. Sess. of the 118th General

Assembly (2014) with effective dates through March 13, 2014), which addressed “the

uncertainty surrounding the mailing of decisions.” Appellee’s Brief at 11. The statute

provides that “[i]f notice is served through the United States mail, three (3) days must be

added to a period that commences upon service of that notice.” I.C. § 22-4-17-4(c). The

Review Board asserts that this legislative action “clarifies its intent that the fifteen (15) day

limitation period runs from the date that the decision is mailed.” Appellee’s Brief at 11.

       We note, however, that the statute applies to “notices given” under specific sections of

that chapter. The statute provides that “[a]s used in this section, ‘notices’ includes mailings

of notices, determinations, decisions, orders, motions, or the filing of any document with the

appellate division or review board.” I.C. § 22-4-17-4(b). Thus, the extension for notices that

are mailed applies to more than determinations. Moreover, a document is considered to be

filed with the appellate division or review board on the earliest of the following dates: 1)

The date the document is delivered; 2) the date of the postmark on the envelope if mailed via




                                               6
the United States Postal Service; or 3) the date of deposit of the document with a private

carrier, as reflected by the carrier-issued receipt. I.C. § 22-4-17-14(d).

       This is consistent with precedent holding that when there is an evidentiary dispute

about the timeliness of an appeal, the Review Board abuses its discretion by failing to hear

additional evidence on the matter. For example, in Ritcheson-Dick v. Unemployment Ins.

Rev. Bd., 881 N.E.2d 54 (Ind. Ct. App. 2008), we reversed the dismissal of the claimant’s

appeal and remanded for an evidentiary hearing on the issue of timeliness of the appeal,

where the claimant included a typed letter explaining why a previously faxed notice of appeal

had not been seen by three Review Board employees, each of whom the claimant could

name, and where the claimant sent a subsequent fax transmission of her notice of appeal after

being assured by a Review Board employee that a note would be placed in her file indicating

that she was sending an appeal. There was ample evidence in the record indicative of an

evidentiary dispute.

       On the other hand, in Amico v. Rev. Bd. of Ind. Dept. of Workforce Dev., 945 N.E.2d

162 (Ind. Ct. App. 2009), we affirmed the dismissal of a claimant’s appeal on the grounds of

untimeliness. In that case, the claims deputy determined that the claimant was terminated for

just cause and denied unemployment benefits to her. The determination was issued on March

20, 2009. The claimant attempted to challenge the unfavorable determination by submitting

a handwritten letter dated March 23, 2009, but fax-marked April 24, 2009, and stamped

received on April 24, 2009. The ALJ dismissed the attempted appeal on jurisdictional

grounds concluding that it was untimely filed. The Review Board adopted the ALJ’s


                                              7
dismissal and the claimant appealed. We held that there was no evidentiary dispute about the

timeliness of her appeal because the claimant contended only that she wished to present

evidence on the merits of her termination. She addressed the issue of timeliness for the first

time on appeal, claiming that she had mailed the notice of appeal on March 23, 2009, with a

faxed submission nearly one month later.

       In Ritcheson-Dick, we found that the Review Board abused its discretion by failing to

hear a claimant’s additional evidence concerning her claim that she filed her notice of appeal

in a timely manner. We cited cases that held the admission of additional evidence was within

the Review Board’s discretion. See e.g., Willett v. Review Bd. of Ind. Dep’t of Emp’t &

Training Servs., 632 N.E.2d 736 (Ind. Ct. App. 1994). Ritcheson-Dick and those other cases

relied upon 646 I.A.C. 3-12-8(b), which provided that the review board may hear or procure

additional evidence upon its own motion, or that of a party, for good cause shown, and with a

showing of a good reason why the evidence was not procured or introduced at the hearing

before the ALJ. Although that provision was valid when applied to decide those cases the

provision has since been repealed. (Repealed by Department of Workforce Development;

filed Apr 26, 2011, 11:23 a.m.: 20110525-IR-646100464FRA).

       Nonetheless, we reasoned as follows in Carter v. Rev. Bd. of Ind. Dep’t of Emp’t and

Training Servs., 526 N.E.2d 717, 719 (Ind. Ct. App. 1988):

       Generally, the evidentiary hearing conducted before a referee affords the
       parties to an unemployment compensation claim due process of law and the
       review board on appeal is not constitutionally required to provide an additional
       evidentiary hearing. However, Carter’s is not the usual situation in which a
       claimant has previously presented his arguments in a hearing before a referee.
       Carter’s appeal, based wholly on his failure to receive notice, arose

                                              8
      independently of the substantive claims underlying his original action for
      unemployment compensation benefits. 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.
(internal citations omitted). Similarly, the Review Board in this case dismissed T.W.’s

appeal on the merits finding that it was untimely filed. Once the issue was raised, T.W.

asked the Review Board to reconsider its decision and tendered evidence in support of her

position. The Review Board chose not to act on the request for reconsideration. The Review

Board argues on appeal that the tendered evidence was hearsay, was not sworn or verified,

and therefore was not admissible because it was not competent evidence. The Review Board

did not make findings to that effect when the issue first arose. T.W. should have the

opportunity to present her evidence to the Review Board, and the Review Board’s failure to

hold an evidentiary hearing was contrary to law.

      Judgment reversed.

MATHIAS, J., and PYLE, J., concur.




                                             9
