FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEES:

ADAM MUELLER                                 GREGORY F. ZOELLER
LISA LAWS KOHLI                              Attorney General of Indiana
JOSEPH B. GLASS, Certified Legal Intern
Indiana Legal Services, Inc.                 KRISTIN GARN
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                       May 28 2014, 9:33 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

MELISA R. DIGBIE,                            )
                                             )
      Appellant,                             )
                                             )
             vs.                             )      No. 93A02-1312-EX-1054
                                             )
REVIEW BOARD OF THE INDIANA                  )
DEPARTMENT OF WORKFORCE                      )
DEVELOPMENT and EAGLECARE LLC,               )
                                             )
      Appellees.                             )


                   APPEAL FROM REVIEW BOARD OF THE
            INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT
                            Case No. 13-R-4054



                                    May 28, 2014


                          OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

         Melisa Digbie appeals the decision of the Review Board of the Department of

Workforce Development (“Review Board”) in favor of Eaglecare LLC on her claim for

unemployment benefits. Digbie presents a single issue for our review, namely, whether

the evidence supports the finding of the Administrative Law Judge (“ALJ”), as adopted

by the Review Board, that Digbie failed to appear at an evidentiary hearing without good

cause.

         We reverse and remand for further proceedings.

                        FACTS AND PROCEDURAL HISTORY

         From December 5, 2012, through May 1, 2013, Digbie was employed by

Eaglecare. Following her termination, Digbie applied for, and received, unemployment

benefits. On June 28, Eaglecare appealed the Department of Workforce Development

(“DWD”) claims deputy’s determination of Digbie’s eligibility for benefits, and the

DWD scheduled a hearing before the ALJ for August 6. A representative of Eaglecare

attended the August 6 hearing, but neither Digbie nor counsel for Digbie appeared at the

hearing.    The ALJ heard evidence from Eaglecare and concluded that Digbie was

ineligible for unemployment benefits.

         In early September, Digbie discovered that she had missed the hearing date on

August 6, and she appealed the ALJ’s decision denying her benefits. The Review Board

ordered the parties to attend a hearing before a new ALJ on the issue of whether Digbie

could show good cause for failure to appear at the August 6 hearing. Following that

hearing, the ALJ concluded that Digbie had failed to show good cause and reissued the


                                            2
ALJ’s determination following the August 6 hearing. Digbie appealed that decision to

the Review Board, which affirmed the ALJ’s decision. This appeal ensued.

                              DISCUSSION AND DECISION

         This court set out the applicable standard of review in Abdirizak v. Review Board

of Indiana Department of Workforce Development, 826 N.E.2d 148, 150 (Ind. Ct. App.

2005):

         When reviewing a decision by the Review Board, our task is to determine
         whether the decision is reasonable in light of its findings. Stanrail Corp. v.
         Unemployment Ins. Review Bd., 734 N.E.2d 1102, 1105 (Ind. Ct. App.
         2000). Our review of the Review Board’s findings is subject to a
         “substantial evidence” standard of review. Stanrail Corp. v. Review Bd. of
         Dept. of Workforce Development, 735 N.E.2d 1197, 1202 (Ind. Ct. App.
         2000). In this analysis, we neither reweigh the evidence nor assess witness
         credibility, and we consider only the evidence most favorable to the Review
         Board’s findings. Id. Further, we will reverse the decision only if there is
         no substantial evidence to support the Review Board’s findings. Id.

         Here, Digbie contends that the Review Board erred when it found that the

evidence established a rebuttable presumption that the DWD had properly served Digbie

notice of the hearing because there is no evidence to show that the DWD mailed her such

notice. The DWD maintains that “[i]t was never disputed below that the [DWD] sent the

notice by mail to Digbie’s valid address; Digbie’s only contention was that she never

received it.” Appellee’s Brief at 9. We agree with Digbie.

         Relevant to this appeal, 646 Indiana Administrative Code 5-10-19(a) provides as

follows:

         (a) Notice of all hearings or proceedings before an administrative law
         judge, or the review board, unless otherwise directed by statute, shall be
         given by United States mail, with proof of mailing being prima facie
         evidence of service, or by facsimile or electronic means agreed upon by the


                                               3
       party receiving the notice, addressed to the parties’ addresses of record on
       file with the department.

                                           ***

       (d) A document mailed to a party is presumed to be received if the
       document was mailed to the complete, correct address of record unless:

              (1) there is tangible evidence of nondelivery, such as the
              document being returned to the agency by the United States
              Postal Service; or

              (2) credible and persuasive evidence is submitted to the
              agency to establish nondelivery, delayed delivery, or
              misdelivery of the document.

(Emphasis added).

       The Indiana Employment Security Act (“the Act”) is given a liberal construction

in favor of employees. Abdirizak, 826 N.E.2d at 150. It merits such a construction

because it is social legislation with underlying humanitarian purposes. Id. The Act

provides that parties to a disputed claim for unemployment benefits are to be afforded “a

reasonable opportunity for fair hearing.” Ind. Code § 22-4-17-3. We interpret this

provision to include reasonable notice, which requires that parties receive actual, timely

notice. Abdirizak, 826 N.E.2d at 150. Where an administrative agency sends notice

through the regular course of mail, a presumption arises that such notice is received. Id.

While that presumption is rebuttable, to establish the presumption in the first instance the

agency must demonstrate that it actually sent the notice through regular mail. See id.

       Here, our review of the record indicates that the DWD failed to present any

evidence to prove that it mailed Digbie notice of the August 6 hearing. Indeed, the DWD

does not direct us to anything in the record showing proof of mailing. Instead, the DWD


                                             4
suggests that it was entitled to the rebuttable presumption of service because “the notice

of the August 6, 2013, hearing was admitted into evidence by the first ALJ . . . [, so] it

was already part of the record when the case was remanded to [the second ALJ] for the

October 2013 hearing, and it did not require re-admission.” Appellee’s Brief at 14

(emphasis added). But the admission into evidence of the notice is not proof of mailing

that notice.

       In his findings and conclusions, the second ALJ found in relevant part as follows:

       Because the date of the decision is on the face of the hearing notice, it is
       unnecessary for a Departmental employee to testify as to when the
       document was mailed. See Owen County v. Ind. Dep’t Workforce Dev.,
       861 N.E.2d 1282, 1289 (Ind. Ct. App. 2007) (stating that “. . . the date of
       the decision is the operative date . . .” that begins the time to timely appeal
       a decision). The date the hearing notice was mailed is on the front of the
       hearing notice, and no additional evidence is necessary to establish what the
       date on the front of the document is already purporting—that the hearing
       notice was mailed to the parties on that day.

Appellant’s App. at 3. First, this court’s opinion in Owen County is obviously inapposite

here. Our holding in Owen County addressed only the time for filing a notice of appeal

and had nothing to do with proof of mailing. 861 N.E.2d at 1289. Second, that the notice

itself purports to state the “Mailing Date of this Document” is not proof that it was

actually mailed. Appellee’s App. at 18. To hold otherwise would permit countless letters

to be deemed delivered simply because the letters themselves are written to say so.

Moreover, satisfying this evidentiary burden is hardly difficult. For example, the agency

need only offer testimony that the notice was mailed or produce evidence of a

contemporaneous notation in the claimant’s file, similar to a CCS entry, that the notice

was placed in the mail on a specific date.


                                             5
      We hold that the DWD presented no evidence that it mailed notice of the August 6

hearing to Digbie. Thus, the DWD was not entitled to the rebuttable presumption that

Digbie received notice of that hearing. We reverse the Review Board’s determination

that Digbie received notice of the August 6 hearing1 and remand for a new evidentiary

hearing on the merits of Digbie’s application for unemployment benefits.

      Reversed and remanded for further proceedings.

VAIDIK, C.J., and BROWN, J., concur.




      1
          The DWD is not entitled to another hearing on this issue.
                                                    6
