                                                                    FILED
MEMORANDUM DECISION                                             Jul 08 2016, 9:28 am


Pursuant to Ind. Appellate Rule 65(D), this                         CLERK
                                                                Indiana Supreme Court
Memorandum Decision shall not be regarded as                       Court of Appeals
                                                                     and Tax Court
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.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
L.M.                                                      REVIEW BOARD OF THE
Columbia City, Indiana                                    DEPARTMENT OF WORKFORCE
                                                          DEVELOPMENT
                                                          Gregory F. Zoeller
                                                          Attorney General of Indiana
                                                          Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

L.M.,                                                     July 8, 2016

Appellant-Claimant,                                       Court of Appeals Case No.
                                                          93A02-1506-EX-609
        v.                                                Appeal from the Review Board of the
                                                          Department of Workforce
                                                          Development.
Review Board of the Indiana                               The Honorable Steven Bier,
Department of Workforce                                   Chairperson.
Development, et al.,                                      Review Board Nos. 15-RB-0922, 15-
                                                          RB-0923
Appellees-Respondents.




Sharpnack, Senior Judge



Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016      Page 1 of 8
                                      Statement of the Case
[1]   L.M. appeals from the Indiana Department of Workforce Development Review

      Board’s determination that her appeal was not timely filed from the

      determination by the claims deputy that she was ineligible for benefits. We

      affirm.


                                                     Issue
[2]   The dispositive issue in L.M.’s appeal is whether the Review Board erred by

      finding and concluding that L.M. did not timely appeal from two

      determinations made by a claims deputy.


                               Facts and Procedural History
[3]   The Department issued two related determinations of eligibility (DOE) on

      September 11, 2013, concluding that L.M. had received unemployment benefits

      to which she was not entitled for the periods of May 26, 2012 to December 8,

      2012, and December 15, 2012 to August 17, 2013. The Department mailed the

      two DOEs to L.M. on September 11, 2013. At L.M.’s request, a second

      mailing of the two DOEs occurred on November 21, 2013.


[4]   On December 6, 2013, L.M. faxed an appeal of the DOEs. On December 31,

      2013, the administrative law judge issued two orders concluding that the

      Department lacked jurisdiction to consider L.M.’s appeal because it was

      untimely filed. On January 16, the Review Board remanded both cases to the




      Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016   Page 2 of 8
      administrative law judge for an evidentiary hearing to determine if L.M. had

      received timely notice.


[5]   The evidentiary hearing was held March 31, 2015 but the decision was vacated

      because not all parties had been contacted for the hearing. A second

      evidentiary hearing was held on both cases on April 21, 2015. L.M. and

      Monica Portillo, representing the Department, were present for the hearing. At

      the conclusion of the hearing, the administrative law judge determined that

      L.M. had not timely filed an appeal from either of her DOEs.


[6]   On May 5, 2015, L.M. filed an appeal to the Review Board of the Department

      of Workforce Development from the administrative law judge’s decision in

      both cases. On May 19, 2015, the Review Board affirmed the findings of fact

      and conclusions of law issued by the administrative law judge. Those findings

      of fact and pertinent conclusions are as follows:

              The Administrative Law Judge makes the following finding of
              facts: The Determination of Eligibility (DOE) was mailed to the
              Claimant’s address on September 11, 2013. The Claimant called
              Ms. Portillo in early October, 2013, to request a mailing of the
              DOE, as she had not received a copy of the DOE. Ms. Portillo
              had received no other notice, such as returned mail, that the
              DOE was not delivered.
              After many missed telephone calls, Ms. Portillo did mail another
              copy of the DOE to the Claimant after receiving a confirmation
              of her address. That DOE was mailed on November 21, 2013.
              The Claimant received the DOE by November 26, 2013. The
              Claimant did read the DOE and filed her appeal by fax on
              December 6, 2013. The DOE state that the Claimant had the
              right to appeal and must be filed within ten days of the mailing of
      Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016   Page 3 of 8
        the DOE. The Claimant thought that she had filed her appeal in
        a timely manner.
        ....
        In this case, the Claimant informed the Department that she had
        not received a copy of the DOE after the original mailing. The
        DOE was mailed a second time to the Claimant on November
        21, 2013. The Claimant did receive that DOE. The
        Administrative Law Judge concludes that the DOE was
        effectively mailed to the Claimant on November 21, 2013.
        In order to submit a timely appeal, with the addition of the three
        days due to the DOE being mailed, the Claimant must have
        submitted the appeal by December 4, 2013. The Claimant,
        however, did not fax the appeal until December 6, 2013.
        ....
        In this case, the Administrative Law Judge has found that the
        later mailing date reflects a fair judgment on the mailing of the
        DOE. Even given that later mailing date, the Claimant filed her
        appeal late. The Claimant waited for ten days after she received
        the DOE to file her appeal, even though the appeal [sic] states
        that the filing must be made within ten days of the mailing of the
        appeal [sic].
        Based on the evidence that the appeal was filed after the time
        limit passed, the Administrative Law Judge concludes that the
        Claimant failed to file an appeal within the time limits specified
        in the law.
        The Claimant’s appeal of the Deputy’s determination mailed on
        September 11, 2013, effective November 21, 2013, was not timely
        filed. The Administrative Law Judge concludes that the appeal
        shall be dismissed because of procedural error.
Appellees’ App. pp. 89-90. L.M. now appeals.




Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016   Page 4 of 8
                                      Discussion and Decision
[7]   Although L.M. cites no supporting law or the record in presenting her case on

      appeal, rendering those issues technically waived, we address her contentions

      nonetheless. See Ind. Rule App. 46(A)(8)(a) (contentions must be supported by

      citations to authorities, statutes); Kelly v. Levandoski, 825 N.E.2d 850, 856 (Ind.

      Ct. App. 2005) (we prefer to decide issues on their merits when possible), trans.

      denied.


[8]   L.M. argues that the Review Board erred by finding that she did not timely

      appeal the two adverse decisions by the claims deputy.


[9]   Indiana Code section 22-4-17-12(a) (1995) provides that any decision of the

      Review Board “shall be conclusive and binding as to all questions of fact.”

      Appellate review of a decision of the Review Board has three components: (1)

      findings of basic fact are reviewed for substantial evidence; (2) findings of mixed

      question of law and fact—ultimate facts—are reviewed for reasonableness; and

      (3) legal propositions are reviewed for correctness. Recker v. Review Bd. of Ind.

      Dep’t of Workforce Dev., 958 N.E.2d 1136, 1139 (Ind. 2011). Under the

      substantial evidence standard of review of findings of basic fact, we neither

      reweigh the evidence nor conduct our own assessment of the credibility of

      witnesses. McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314,

      1317 (Ind. 1998). Further, we consider only the evidence most favorable to the

      Review Board’s findings. Id. We will reverse only if reasonable persons would

      be bound to reach a conclusion opposite that of the Review Board. Wade v.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016   Page 5 of 8
       Review Bd. of Ind. Dep’t of Employment and Training Servs., 599 N.E.2d 630, 632

       (Ind. Ct. App. 1992).


[10]   An administrative body such as the Indiana Department of Workforce

       Development possesses the authority to make an initial determination whether

       a matter presented to it falls within its jurisdiction. Guinn v. Light, 558 N.E.2d

       821, 823 (Ind. 1990). We have held that a claimant’s untimely appeal to the

       Review Board was properly dismissed because the Review Board did not obtain

       jurisdiction over the appeal. Quakenbush v. Review Bd. of Ind. Dep’t of Workforce

       Dev., 891 N.E.2d 1051, 1053 (Ind. Ct App. 2008)(citing Szymanski v. Rev. Bd. of

       Dep’t. of Workforce Dev., 656 N.E.2d 290, 293 (Ind. Ct. App. 1995)). When a

       statute contains a requirement that an appeal or notice of the intention to

       appeal shall be filed within a certain time, strict compliance with the

       requirement is a condition precedent to acquiring jurisdiction, while non-

       compliance with the requirement results in dismissal of the appeal. Id.


[11]   Indiana Code section 22-4-17-2(a) states as follows: “Unless the individual,

       within ten (10) days after such determination was mailed to the individual’s last

       known address, or otherwise delivered to the individual, asks a hearing thereon

       before an administrative law judge, such determination shall be final and

       benefits shall be paid or denied in accordance therewith.” Pursuant to 646

       Indiana Administrative Code article 5, rule 10, section 19(c), if a notice is

       served through the United States mail, three days must be added to a period

       that commences upon service of the notice.



       Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016   Page 6 of 8
[12]   “Where, as here, an administrative agency does in fact send notice through the

       regular course of mail, a presumption arises that such notice is received.” Scott

       v. Review Bd. of Ind. Dep’t of Workforce Dev., 725 N.E.2d 993, 996 (Ind. Ct. App.

       2000). The presumption is rebuttable. Id. Methods for rebutting that

       presumption include an agreement by both parties that the notice was not

       mailed, id.; the contention of a claimant that she did not receive actual notice

       and the Review Board does not rebut that argument, see Forni v. Review Bd. of

       Ind. Dep’t of Workforce Dev., 900 N.E.2d 71, 73 (Ind. Ct. App. 2009), trans.

       denied; or if the agency receives a returned mailing, see cf. King v. United Leasing,

       Inc., 765 N.E.2d 1287, 1290 (Ind. Ct. App. 2002).


[13]   The Review Board adopted the administration law judge’s findings which,

       giving L.M. the benefit of the doubt, established actual notice of the DOEs re-

       mailed on November 21, 2013. At the evidentiary hearing, L.M. acknowledged

       receipt of the determinations issued in September that were re-mailed in

       November. Again, giving L.M. the benefit of the doubt, without deciding that

       the re-mailing constituted a new determination issued by the Department, the

       determinations issued on September 11, 2013, but actually received by her on

       November 21, 2013, notified L.M. that she had ten days from the date of

       mailing to file an appeal. Adding three additional days to that timeline due to

       service by mail, L.M. should have filed her appeal by December 4, 2013.

       L.M.’s appeal was not faxed until December 6, 2013. Therefore, the




       Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016   Page 7 of 8
       administrative law judge and the Review Board correctly found and concluded
                                                                                                               1
       that L.M.’s appeal was not timely filed, and as such, was properly dismissed.


[14]   L.M. additionally argues that several procedural irregularities in the handling of

       her appeal warrant reversal. However, because we have concluded that her

       appeal was correctly dismissed for want of jurisdiction, any additional errors

       would not have been before the administrative law judge and the Review

       Board. Therefore, we do not address them here.


                                                  Conclusion
[15]   In light of the foregoing, the Review Board’s determination that L.M.’s appeal

       was untimely, and, therefore, subject to dismissal, is affirmed.


[16]   Affirmed.


       Pyle, J., and Altice, J., concur.




       1
        L.M. makes the additional arguments for the first time on appeal that (1) she was not aware how much time
       she had in which to file her appeal after receiving actual notice in November, and (2) she was under physical
       and emotional duress such that her untimely filing of the appeal should be excused. Those arguments were
       not presented at the evidentiary hearing before the administrative law judge. Therefore, because the Review
       Board adopted the administrative law judge’s factual determinations, and the Review Board’s factual
       determinations are conclusive and binding, we do not address those contentions here.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1506-EX-609 | July 8, 2016               Page 8 of 8
