[Cite as Brown v. Ohio Dept. of Job and Family Servs., 2014-Ohio-4956.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

LORETTA L. BROWN                                         :

        Plaintiff-Appellant                              :         C.A. CASE NO.       26109

v.                                                       :         T.C. NO.    12CV3063

OHIO DEPARTMENT OF JOB                                   :            (Civil appeal from
& FAMILY SERVICES, et al.                                             Common Pleas Court)

        Defendant-Appellee                     :

                                                         :

                                             ..........

                                           OPINION

                         Rendered on the           7th       day of         November        , 2014.

                                             ..........

SEAN BRINKMAN, Atty. Reg. No. 0088253 and AARON G. DURDEN, Atty. Reg. No.
0039862, 10 W. Monument Avenue, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellant

ALAN SCHWEPE, Atty. Reg. No. 0012676, Senior Assistant Attorney General, Health and
Human Services Section, 30 E. Broad Street, 26th Floor, Columbus, Ohio 43215
     Attorney for Defendant-Appellee

                                             ..........
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FROELICH, P.J.

              {¶ 1} Loretta L. Brown appeals from a judgment of the Montgomery County

Court of Common Pleas, which affirmed a decision of the Ohio Unemployment

Compensation Review Commission that her appeal of a decision of the director of the Ohio

Department of Job and Family Services was untimely. For the following reasons, the trial

court’s judgment will be affirmed.

                                     I. Procedural History

              {¶ 2} In 2010, the Ohio Department of Job and Family Services, Office of

Unemployment Compensation, granted unemployment benefits to Brown. On December

28, 2011, the director of the Ohio Department of Job and Family Services determined that

Brown had been overpaid unemployment benefits in the amount of $3,650. The December

28, 2011 determination included a paragraph regarding Brown’s appeal rights, which stated:

       APPEAL RIGHTS: If you do not agree with this determination, you may file

       an appeal by mail or fax to the ODJFS office provided. You may also file an

       appeal online at https://unemployment.ohio.gov. The appeal should include

       the determination ID number, name, claimant’s social security number, and

       any additional facts and/or documentation to support the appeal. TO BE

       TIMELY, YOUR APPEAL MUST BE RECEIVED/POSTMARKED NO

       LATER THAN 01/18/2012 (21 calendar days after the ‘Date Issued’). If

       the 21st day falls on a Saturday, Sunday, or legal holiday, your deadline has

       already been extended to include the next scheduled work day. If you do not

       file your appeal within the 21-day calendar period, include a statement with
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       the date you received the determination and your reason for filing late. If

       your appeal is late due to a physical or mental condition, provide certified

       medical evidence that your condition prevented you from filing within the

       21-day period. In order for your appeal to be considered timely, it must be

       received/postmarked no later than 21 calendar days after the ending date of

       the physical or mental condition. * * *

(Emphasis in original.)

       {¶ 3}    Brown appealed the December 28, 2011 determination by facsimile. The

administrative records contain what appears to be three transmissions from Brown, which

were apparently received in the early morning hours of January 19, 2012.          The first

transmission consisted of two pages with a fax machine time-stamp of 1:38 a.m. on January

19, 2012; these pages consisted of a handwritten note (dated January 18, 2012) and a copy of

the December 28 decision with “wrong” written on it. Another four pages, with a fax

machine stamp indicating that these were pages 4 through 7, were received by the agency’s

fax machine between 2:18 a.m. and 2:21 a.m. The agency’s fax machine also received a

14-page transmission between 2:25 a.m. and 2:32 a.m. on January 19.            All of these

documents were hand-stamped by the agency as “Received” on January 19, 2012.

       {¶ 4}    On January 23, 2012, the director denied Brown’s appeal, reasoning that the

December 28, 2011 determination had become final and Brown had failed to supply reasons

to justify her late filing. The director’s redetermination stated, “The appeal was not made

within the time limit prescribed by law and cannot be accepted as timely.”

       {¶ 5}    Brown appealed the director’s redetermination, and the file was transferred
                                                                                        4

to the Unemployment Compensation Review Commission. In her appeal to the Review

Commission, Brown stated that she was “locked out” of the agency’s website and could not

access information that she needed for her appeal from the system. Brown also stated that

she did not receive what she needed from a doctor appointment until January 4, 2012, and

that the agency’s fax machine was not responding. A telephone hearing on Brown’s appeal

was scheduled for February 16, 2012. On February 14, prior to the hearing, Brown faxed a

letter from her doctor regarding treatment she received in December 2011 and early January

2012.

        {¶ 6}   The hearing was held as scheduled, and Brown testified. Brown stated that

she filed her appeal from the December 28 decision on January 18, 2012 by fax and

resubmitted it on January 19, 2012. She explained that she resubmitted it because “one of

the major pages was smeared * * * you know when you go through the fax machine it makes

it elongated and hard to read[.]” Brown did not know the exact time that she faxed the

appeal on January 18, and she did not have a confirmation page for the January 18

submission; she stated that “it didn’t print out cause somebody had unplugged my fax

machine.” Brown further stated that she could not (at the time of the hearing) print a

confirmation page from her fax machine, because the machine “give[s] the wrong time for

right now because of my fax machine was unplugged.”

        {¶ 7}   Brown also told the hearing officer that she was unable to file a timely

appeal due to a medical condition. Brown provided a letter from her physician, which

stated that Brown was being treated for breast cancer and lymphedema and was seen for

evaluation on December 21, 2011. The doctor further wrote that Brown was measured and
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fitted for a compression sleeve, which Brown received on January 7, 2012. Brown testified

at the hearing that she received a compression sleeve for her right arm, with which she writes

and types, and she had to wear the sleeve “for a couple of days and we have other issues that

need to be addressed.” Brown stated that she was again physically able to file her appeal on

January 8 or 9. Brown presented evidence that she was able to file an appeal in a different

ODJFS matter on January 9.

       {¶ 8}     Brown further stated that she was unable to access the ODJFS system to get

necessary information to file her appeal. Brown stated that she was unable to get back into

the system from early on January 16 until January 18. Brown provided documentation that

she received a new personal identification number (PIN) at 2:47 pm on January 18, 2012.

       {¶ 9}    In a written decision, the hearing officer concluded that Brown had appealed

the December 28, 2011 decision by fax on January 19, 2012. Although Brown asserted that

she had faxed her appeal on January 18, she provided no independent verification to

establish that she filed an appeal within the appeal period. The hearing officer further found

that neither Brown’s medical treatment nor the temporary “lock out” from the system

prevented her from filing a timely appeal. Finally, the hearing officer stated that it was

“simply unreasonable for an appellant to argue both that she did file a timely appeal and that

she was prevented from filing a timely appeal.”

       {¶ 10} Brown filed, by facsimile, a request for review of the hearing officer’s

decision with the Unemployment Compensation Review Commission. Brown’s request for

review argued that her original appeal was timely, because she had a medical condition that

delayed the start of the 21-day appeal period until January 7, 2012, and that any untimeliness
                                                                                             6

should be excused because she was locked out of the agency’s computer system. Brown’s

request for review also included additional documentation – a log of 30 facsimilies between

October 19 and January 18. Although the document is somewhat blurry, the log appears to

reflect that one facsimile was sent to the agency’s fax machine (614-752-4808) on January

18 at 12:26 p.m., consisting of three pages; the transmission took 2 minutes and 52 seconds.

       {¶ 11}     On March 28, 2012, the Review Commission summarily disallowed the

request for review. On April 27, 2012, Brown appealed the Review Commission’s decision

to the common pleas court.

       {¶ 12} On January 28, 2014, the trial court affirmed the Review Commission’s

denial of Brown’s appeal. The trial court reviewed R.C. 4141.281(A) and (D), which

concern the time period within which an appeal must be filed from a decision of the Director

of the Office of Unemployment Compensation, and noted that the focus should be on when

her appeal was received by the agency. The trial court rejected Brown’s reasons for filing

an untimely appeal – her health issues and being locked out of the system – on the ground

that “each of these impediments to a timely filing occurred prior to the statutory deadline for

filing an appeal.”    Turning to whether Brown’s appeal from the December 28, 2011

decision was timely filed, the court stated:

                The statutes and the Ohio Administrative Code require the trier of fact

       to use a strict liability standard in determining whether an administrative

       appeal has been perfected in a timely manner.           If the appellant used

       electronic means to perfect an appeal, then a review of when the director

       received the document is sufficient. If the appellant used the United States
                                                                                         7

       Postal Service to perfect the appeal, then a review of the postmark on the

       envelope is sufficient.

                The Court finds as a matter of law that the Plaintiff used electronic

       means to perfect her appeal. Thus, the Court is required to look only at when

       the director or his agent received the appeal documentation. The Court

       further finds that the director received the documentation out of time and that

       his order of dismissal was made in accordance with the law.

       {¶ 13} Brown appeals from the trial court’s judgment.

                                 II. Timeliness of Appeal

       {¶ 14} Brown’s sole assignment of error states:

       THE TRIAL COURT ERRED IN FINDING THAT THE DIRECTOR

       RECEIVED THE DOCUMENTATION OUT OF TIME AND THAT HIS

       ORDER OF DISMISSAL WAS MADE IN ACCORDANCE WITH THE

       LAW.

       {¶ 15}     An appellate court’s scope of review in employment compensation appeals

is quite limited. Silkert v. Ohio Dept. of Job & Family Servs., 184 Ohio App.3d 78,

2009-Ohio-4399, 919 N.E.2d 783, ¶ 26 (2d Dist.). An appellate court may reverse the

Unemployment Compensation Review Commission’s determination only if it is “unlawful,

unreasonable or against the manifest weight of the evidence.” Tzangas, Plakas & Mannos

v. Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 653 N.E.2d 1207 (1995), paragraph one of

the syllabus; R.C. 4141.282(H). “All reviewing courts, including common pleas, courts of

appeal, and the Supreme Court of Ohio, have the same review power and cannot make
                                                                                            8

factual findings or determine witness credibility.” Silkert at ¶ 26; see also Williams v. Ohio

Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 20.

 The reviewing court must affirm the Review Commission’s decision if it is supported by

some competent, credible evidence. Williams at ¶ 20.

       {¶ 16} An appeal of a determination of benefit rights must be made within 21 days

after the written determination was sent to the party or within the extended period provided

by R.C. 4141.281(D)(9). R.C. 4141.281(A). Appeals may be filed or submitted by use of

electronic means, such as facsimile, electronic network, or the internet. Ohio Adm.Code

4141-19-01(A).

       {¶ 17}     With the exception of appeals sent by United States Postal Service, the

director, commission, or an authorized agent must receive the appeal within the 21-day time

period in order for the appeal to be timely.       R.C. 4141.281(D)(1).     Ohio Adm.Code

4141-19-01(B)(3) specifically provides:

       (a) When electronic means are used as the method of delivery, the document

       or information submitted must be received by a facsimile device, electronic

       device, or at an electronic address designated, operated and maintained by the

       director; and be confirmed by the director to have been received within the

       statutorily prescribed time frame.

       (b)      If the director finds that a document or information received

       electronically is unintelligible or incomplete, the director may disregard the

       transmitted document or information in rendering a determination, decision,

       or order with respect to which the transmitted document or information
                                                                                            9

       would otherwise be relevant.

Ohio Adm.Code 4141-19-01(C) further provides:

       Where the department has not received, has disregarded as unintelligible or

       incomplete, or is unable to locate an appeal, said appeal will be considered to

       have been received timely if the sender provides independent verification to

       demonstrate that the appeal was mailed, submitted electronically or filed in

       person within the statutorily prescribed time frame.

       {¶ 18} The deadline for filing an appeal may be extended under certain

circumstances.    Of relevance, “[w]hen an interested party provides certified medical

evidence stating that the interested party’s physical condition or mental capacity prevented

the interested party from filing an appeal or request for review under this section within the

appropriate twenty-one-day period, the appeal period is extended to twenty-one days after

the end of the physical or mental condition, and the appeal or request for review is

considered timely filed if filed within that extended period.” R.C. 4141.281(D)(9).

       {¶ 19} In her appeal to this court, Brown asserts that she filed a timely appeal from

the director’s determination on January 18, 2012, as documented by the facsimile log, and

resubmitted her appeal on January 19, 2012. She states that the log provided independent

verification that three pages were submitted electronically to the agency’s fax machine on

January 18, 2012 at 12:26 p.m. Unlike her prior appeals, Brown does not argue that any

untimeliness in the filing of her appeal should be excused or tolled due to her medical issues

or computer issues; instead, she focuses only on her testimony that she submitted a timely

appeal by facsimile on January 18, 2012, and that she has independent verification of that
                                                                                          10

timely electronic submission.      Brown thus asserts that the Review Commission’s

determination that her appeal was untimely was not supported by reliable, probative and

substantial evidence.

       {¶ 20} Upon review of the administrative record, we conclude that the Review

Commission’s decision was supported by competent, credible evidence. Brown testified at

the telephone hearing that she filed her appeal from the December 28 decision on January

18, 2012 by fax and resubmitted it on January 19, 2012. Brown told the hearing officer that

she did not know the exact time that she faxed the appeal on January 18, and she did not

have a confirmation page for the timely appeal. Brown explained that “it didn’t print out

cause somebody had unplugged my fax machine,” and she stated that she could not (at the

time of the hearing) print a confirmation page from her fax machine because it “give[s] the

wrong time for right now because of my fax machine was unplugged.”

       {¶ 21}    Although the facsimile log indicates a fax transmission to the agency fax

machine on January 18, 2012, there is no evidence – direct or circumstantial – that the dates

and times indicated on the log are reliable.     In addition, even accepting, for sake of

argument, that the facsimile log accurately indicates that a fax was sent to ODJFS at 12:26

p.m. on January 18, 2012, there is no evidence beyond her statement that the three-page

document that Brown allegedly faxed on January 18, 2012 was, in fact, her appeal from the

December 28, 2011 decision.

       {¶ 22} On the record before us, we cannot conclude that the Review Commission’s

decision was unlawful, unreasonable, or against the manifest weight of the evidence.

                                     III. Conclusion
                                                             11

       {¶ 23} The trial court’s judgment will be affirmed.



                                       ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Sean Brinkman
Aaron G. Durden
Alan Schwepe
Hon. Frances E. McGee
