                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 41523

TERRI L. BOYD-DAVIS,                               )
                                                   )       Coeur d’Alene, September 2014
     Claimant-Appellant,                           )       Term
                                                   )
v.                                                 )       2015 Opinion No. 3
                                                   )
MACOMBER LAW, PLLC, Employer, and                  )       Filed: January 23, 2015
IDAHO DEPARTMENT OF LABOR,                         )
                                                   )       Stephen Kenyon, Clerk
     Respondents.                                  )

       Appeal from the Industrial Commission of the State of Idaho.

       The decision of the Commission is vacated and the case is remanded for further
       proceedings consistent with this Opinion.

       Terri Boyd-Davis, Hayden, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent Idaho
       Department of Labor. Tracey K. Rolfsen argued.
             _______________________________________________

HORTON, Justice.
       Terri Boyd-Davis appeals the decision of the Industrial Commission which concluded
that Boyd-Davis failed to provide information requested by Idaho Department of Labor (IDOL)
as required by IDAPA 09.01.30.425.07 and was therefore ineligible for unemployment benefits.
We vacate the Commission’s decision and remand the matter to the Commission for further
proceedings consistent with this opinion.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
        Boyd-Davis filed for unemployment compensation on January 27, 2013, and began
receiving benefits. IDOL claims to have mailed an “online review letter” to Boyd-Davis’ listed
address on March 6, 2013 (the Online Review Letter). The Online Review Letter indicated that
Boyd-Davis had been selected to provide additional information concerning her unemployment
insurance claim for the week of March 2, 2013. The Online Review Letter instructed Boyd-Davis
that she would need to complete work search documentation online. The letter also indicated that


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failure to complete the online eligibility review by 5:00 p.m. on March 15, 2013, would result in
the denial of her benefits.
       Boyd-Davis asserts that she did not receive the Online Review Letter. When Boyd-Davis
had not provided the requested information by the March 15, 2013, deadline, IDOL issued an
Eligibility Determination on March 19, 2013. The Eligibility Determination indicated that Boyd-
Davis had failed to complete the online eligibility review and as a result was ineligible for
benefits effective March 10, 2013. Boyd-Davis filed a protest to the denial on March 27, 2013,
arguing that she did not know IDOL was seeking additional information until she received the
Eligibility Determination. A telephonic hearing was scheduled for April 18, 2013.
       On April 1, 2013, Boyd-Davis provided the information IDOL had requested in the
Online Review Letter. As soon as the requested information was provided, Boyd-Davis’ benefits
were reinstated for the week beginning March 31, 2013. However, benefits were not reinstated
for the period of March 10 through March 30, 2013. It is undisputed that Boyd-Davis’ benefits
were not denied because she was ineligible; rather, IDOL denied benefits based solely on Boyd-
Davis’ failure to respond to the Online Review Letter.
       After three months of unemployment, Boyd-Davis obtained full-time employment on
April 12, 2013. Boyd-Davis proceeded with the April 18, 2013, hearing seeking restoration of
her benefits for the period of March 10 through March 30, 2013. Following the hearing, an IDOL
Appeals Examiner affirmed the original eligibility determination and concluded that Boyd-
Davis’ benefits had been properly denied. The Appeals Examiner reasoned that service by mail
was deemed complete on the date of mailing pursuant to Idaho Code section 72-1368(5).
Because the Online Review Letter indicates the mailing date was March 6, 2013, and was
therefore deemed served on that date, IDOL found that Boyd-Davis had failed to provide the
requested information and that this failure authorized IDOL to deny her benefits up until that
information was provided.
       Boyd-Davis appealed to the Industrial Commission and the Commission affirmed the
decision. The Commission reasoned claimants are required to provide all necessary information
in order to remain eligible for unemployment benefits and that IDAPA 09.01.30.425.07 provides
that a claimant who fails to provide IDOL with “all necessary information relevant to
determining that claimant’s eligibility shall be denied benefits until such information is
provided.” (Emphasis added).

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       The Commission explained that the “real issue” presented by Boyd-Davis’ appeal was
whether she could be held accountable for failing to comply with IDOL’s request for information
“when she purportedly did not receive the [Online Review Letter].” The Commission reasoned
that under Idaho Code section 72-1368(5), notice is deemed served if mailed to the claimant’s
last known address, and is deemed complete on the date of mailing. The Commission concluded
that this statute was applicable to the Online Review Letter. Applying Idaho Code section 72-
1368(5), the Commission found by a preponderance of the evidence that the Online Review
Letter was mailed and received by Boyd-Davis. As a result, the Commission found that Boyd-
Davis failed to provide information as requested, and “as required by IDAPA 09.01.30.425.07,”
this rendered her ineligible for unemployment benefits from March 10 through March 30, 2013.
Boyd-Davis timely appealed the Commission’s decision to this Court.
                                  II. STANDARD OF REVIEW
       “When reviewing a decision by the Industrial Commission, this Court exercises free
review over the Commission’s conclusions of law, but will not disturb the Commission’s factual
findings if they are supported by substantial and competent evidence.” Knowlton v. Wood River
Med. Ctr., 151 Idaho 135, 140, 254 P.3d 36, 41 (2011) (citing I.C. § 72–732). “The interpretation
of a statute is a question of law over which this Court exercises free review.” Williams v. Blue
Cross of Idaho, 151 Idaho 515, 521, 260 P.3d 1186, 1192 (2011). “Substantial and competent
evidence is relevant evidence that a reasonable mind might accept to support a conclusion.”
McNulty v. Sinclair Oil Corp., 152 Idaho 582, 584–85, 272 P.3d 554, 556–57 (2012) (quoting
Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003)).
       A three-part test is used when reviewing whether the Commission abused its discretion.
Flowers v. Shenango Screenprinting, Inc., 150 Idaho 295, 297, 246 P.3d 668, 670 (2010). This
Court determines: “(1) whether the Commission correctly perceived the issue as one of
discretion, (2) whether it acted within the outer boundaries of its discretion and consistently with
the legal standards applicable to the specific choices available to it, and (3) whether it reached its
decision by an exercise of reason.” Id. (quoting Super Grade, Inc. v. Idaho Dep’t of Commerce
& Labor, 144 Idaho 386, 390, 162 P.3d 765, 769 (2007)).
                                          III. ANALYSIS
A. The Commission erred in applying the presumption contained in Idaho Code section
   72-1368(5) to the Online Review Letter.


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       The Commission concluded that the Online Review Letter was entitled to a presumption
of receipt if sent to the claimant’s address of record pursuant to Idaho Code section 72-1368(5).
The Commission reasoned that Idaho Code section 72-1368(5), wherein service is deemed
complete on the date of mailing, applied to the Online Review Letter and that Boyd-Davis’
interpretation to the contrary did not “reflect the reality” of IDOL’s day-to-day practices. The
Commission found that a preponderance of the evidence indicated that IDOL mailed the Online
Review Letter on March 6, 2013, and was therefore served on Boyd-Davis.
       On appeal, Boyd-Davis argues that, based on the plain language of Idaho Code section
72-1368(5), the presumption of service on the date of mailing only applies to the five notices
specifically identified in the statute. Boyd-Davis also argues that there is insufficient evidence to
support the Commission’s conclusion that IDOL mailed the letter to her address of record. IDOL
argues that a document is rightly presumed delivered when placed in the mail to the correct
address unless there is probative evidence of non-receipt.
        “When interpreting a statute, the Court begins with the literal words of the statute, and
where the language of a statute is plain and unambiguous, the Court gives effect to the statute as
written, without engaging in statutory construction.” Williams, 151 Idaho at 521, 260 P.3d at
1192. Idaho Code section 72-1368(5) is a part of the Employment Security Law and provides:
              All interested parties shall be entitled to prompt service of notice of
       determinations,     revised     determinations,    redeterminations,      special
       redeterminations and decisions. A notice shall be deemed served if delivered to
       the person being served, if mailed to his last known address or if electronically
       transmitted to him at his request and with the department’s approval. Service by
       mail shall be deemed complete on the date of mailing. Service by electronic
       transmission shall be deemed complete on the date notice is electronically
       transmitted.
I.C. § 72-1368(5) (emphasis added). Pursuant to the administrative rules of the Department of
Labor, “[t]he date indicated on Department determinations, revised determinations,
redeterminations and decisions as the ‘Date of Mailing’ or ‘Date Mailed’ shall be presumed to be
the date the document was deposited in the United States mail . . . unless shown otherwise by a
preponderance of competent evidence.” IDAPA 09.01.06.012.
       By the plain language of Idaho Code section 72-1368(5), “notice” of “determinations,
revised determinations, redeterminations, special redeterminations and decisions” is deemed
served when mailed to the interested person’s last known address. Due to the absence of terms
like “such as,” or “including,” this list of documents to which this presumption applies is
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exclusive. See, e.g., State v. Hart, 135 Idaho 827, 832, 25 P.3d 850, 855 (2001) (“By prefacing
the list with the words ‘such as,’ the legislature clearly meant the list to be non-exclusive.”);
Rohnert v. Amalgamated Sugar Co., 95 Idaho 763, 766, 519 P.2d 432, 435 (1974) (“The word
‘include’ is not a limiting or restrictive term.”). This reading is consistent with In re Dominy,
wherein this Court reasoned that Idaho Code section 72-1368(5) applies “only to notices served
on interested parties of determinations, redetermination and decisions of appeals examiners.” In
re Dominy, 116 Idaho 727, 729–30, 779 P.2d 402, 404–05 (1989) (emphasis added).
       The Commission dismissed the plain language interpretation, concluding that this
interpretation “does not reflect the reality of the Department’s day-to-day business processes”
because the Online Review Letter was “mailed using the same process that IDOL uses for
preparing and mailing Determinations.” We acknowledge that the “Commission has the
discretionary power to consider any type of reliable evidence having probative value, even if that
evidence is not admissible in a court of law.” Higgins v. Larry Miller Subaru-Mitsubishi, 145
Idaho 1, 5, 175 P.3d 163, 167 (2007). However, the Commission is not free to make factual
findings based on its own knowledge; rather, the presentation of evidence is still necessary.
Mazzone v. Texas Roadhouse, Inc., 154 Idaho 750, 760–61, 302 P.3d 718, 728–29 (2013).
       Here, there was no testimony and no evidence presented regarding the mailing process
that IDOL uses for preparing and mailing determinations. There was also no evidence presented
that the Online Review Letter was prepared and mailed using the same processes. In short, there
is no evidence in the record showing that the Online Review Letter “was prepared and mailed
using the same process that IDOL uses for preparing and mailing Determinations.” The
Commission exceeded its authority as a finder of fact when it made findings regarding the “day-
to-day” process of the IDOL based on its own assessment of IDOL’s procedures absent any
evidence in the record. See Mazzone, 154 Idaho at 760, 302 P.3d at 728.
       Further, as this Court has previously stated, when a statute is “plain, clear, and
unambiguous,” it “must be given the interpretation the language clearly implies.” Verska v. Saint
Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 895, 265 P.3d 502, 508 (2011) (quoting Moon v. Inv.
Bd., 97 Idaho 595, 596, 548 P.2d 861, 862 (1976)). Neither the Commission, nor this Court, is
entitled to modify its plain language. Thus, Idaho Code section 72-1368(5) is inapplicable to
letters such as the Online Review Letter and the Commission erred in its interpretation and
application of Idaho Code section 72-1368(5) to this case.

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       The issue then becomes what implication, if any, should Boyd-Davis’ assertion that she
did not receive the Online Review Letter have in the Commission’s decision. Proof that a letter
has been properly addressed, stamped, and mailed raises a presumption that it has been received
by the addressee. Hobson v. Sec. State Bank, 56 Idaho 601, 608, 57 P.2d 685, 688 (1936)
(“Where it is shown that a letter has been properly addressed and deposited in the post office,
postage prepaid, a presumption arises that it was delivered to the addressee in due course of mail
transportation.”). When credible evidence of nonreceipt is presented, the question of receipt
becomes one for the trier of fact. Id.; see also Am. Sur. Co. of N.Y. v. Blake, 54 Idaho 1, 7, 27
P.2d 972, 975 (1933).
       In this case, at the April 18, 2013, hearing IDOL presented evidence that Boyd-Davis’
address of record was the correct address. Kim Roby, the assistant manager in the Kootenai
County Department of Labor Office, testified that “Mrs. Boyd-Davis was sent a letter on March
6th to” her address of record. IDOL also presented a copy of the Online Review Letter, which
states that the mailing date is March 6, 2013.
       Boyd-Davis confirmed that the address to which the Online Review Letter was
purportedly sent was her current address, and conceded that she received the Eligibility
Determination, which was sent on March 19, 2013, to the same address. Boyd-Davis also
testified that “at times” she had encountered problems with mail delivery to that address, but that
it was “[n]ot very often” and had been a year or two since she had filed any kind of complaint
with the post office. Boyd-Davis did not question Roby as to whether the Online Review Letter
had actually been sent with the postage prepaid.
       However, Boyd-Davis presented evidence that would permit reasonable minds to
conclude that the Online Review Letter was not received. Boyd-Davis testified that she had “not
received that letter.” Corroborating this assertion, Boyd-Davis provided her protest of
determination, drafted on March 27, 2013, wherein she represented that she had received the
March 19, 2013 Eligibility Determination but did not understand the termination of her benefits.
In the protest of determination, Boyd-Davis explained: “To my knowledge, I have provided all of
this information as requested by the IDOL” and that while the Eligibility Determination states
that “I failed to complete a required eligibility review, I am not even sure what this means. To
my knowledge, I have provided the IDOL with all information requested of me.”



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        If deemed credible, this is sufficient evidence to rebut the presumption of receipt. While
the Commission acknowledged that Boyd-Davis “did purportedly not receive” the Online
Review Letter, it made no findings as to Boyd-Davis’ credibility. If the Commission should find
Boyd-Davis’ testimony not to be credible and that the Online Review Letter was properly
addressed, stamped, and mailed, it may apply the presumption that the letter was received. If the
Commission is unable to make either of these factual determinations, it must determine whether
the Online Review Letter was received without application of the presumption. Thus, this matter
must be remanded to the Commission for further proceedings consistent with this Opinion.
B. The Commission abused its discretion when it found Boyd-Davis ineligible for benefits.
        The Commission concluded that Boyd-Davis was ineligible for benefits because she
failed to provide IDOL with all necessary information under IDAPA 09.01.30.425.07. On
appeal, Boyd-Davis argues that the Commission misstated the applicable law and abused its
discretion in denying her benefits. IDOL concedes that the Commission abused its discretion
when it refused to consider whether Boyd-Davis was ineligible for benefits under IDAPA
09.01.30.425.07.
        Under IDAPA 09.01.30.425.07(i), “[o]nce a claim has been established, the claimant
must provide, upon request, a record of the claimant’s work search, in order for the Department
to assess the claimant’s compliance with personal eligibility requirements.” “If a claimant fails to
provide the Department with all necessary information pertinent to eligibility, the claimant may
be denied benefits until the information is provided.” IDAPA 09.01.30.425.07. “[T]he word
‘may’ is permissive rather than the imperative or mandatory meaning of ‘must’ or ‘shall.’” Rife
v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995) (using “may” “does not impose a
mandatory duty . . . .”).
        The Commission concluded that “a claimant who fails to provide the Department with all
necessary information relevant to determining that claimant’s eligibility shall be denied benefits
until such information is provided.” (Emphasis added). When reviewing whether the
Commission has abused it discretion, we look to “whether the Commission correctly perceived
the issue as one of discretion . . . .” Flowers v. Shenango Screenprinting, Inc., 150 Idaho 295,
297, 246 P.3d 668, 670 (2010) (quoting Super Grade, Inc. v. Idaho Dep’t of Commerce & Labor,
144 Idaho 386, 390, 162 P.3d 765, 769 (2007)). Due to its misstatement of the applicable legal
standard, the Commission did not properly perceive this issue as one of discretion; rather it


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concluded a denial of benefits was mandatory. Thus, the Commission abused its discretion when
it determined that Boyd-Davis was ineligible for unemployment benefits effective March 10,
2013, through March 30, 2013. Upon remand, if the Commission determines that Boyd-Davis
received the Online Review Letter, it must then exercise its discretion to determine whether she
should be denied benefits for the pertinent timeframe.
                                      IV. CONCLUSION
       We conclude that the Commission erred in its application of the presumption of delivery
articulated in Idaho Code section 72-1368(5). The Commission abused its discretion in
determining that Boyd-Davis was ineligible for unemployment benefits for the period from
March 10, 2013, through March 30, 2013. We vacate the July 25, 2013 Order of the Commission
and remand this matter to the Commission. Costs on appeal are awarded to Boyd-Davis.

       Chief Justice BUDICK and Justices EISMANN, J. JONES and Justice Pro Tem
WALTERS CONCUR.




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